[2022] KEHC 16758 (KLR)

In re MWM (A Person Suffering From Mental Disorder) (Miscellaneous Application E140 of 2022) [2022] KEHC 16758 (KLR) (Family) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16758 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application E140 of 2022

EKO Ogola, J

December 15, 2022

In the matter of

JAM

1st Petitioner

EGM

2nd Petitioner

Judgment

1. Before this court is a petition dated July 15, 2022 by which the petitioners JAM and EGM seek the following orders: -a.That this honorable court be pleased to appoint the petitioners herein as the Guardians and Managers of the affairs and estate of the subject “MWM” under the Mental Health Act with powers to sign any documents, deeds to sign any documents, deeds, pleadings, settlements and enter into any dealings or carry out any unlawful and legitimate transactions on behalf of the subject as by law permitted and both the petitioners jointly to sign at all times in respect of every transaction.b.The petitioners do utilize such sums as are accruing from the subject’s properties for her maintenance treatment, upkeep and payment of such bills and outgoing including just debts and liabilities in respect of the subject to include legal fees and expenses for past, present and future litigation (if any) legal transactions as are permitted under the lawc.This honorable court do permit the petitioners to sign, execute and/or authorize bank transactions with full mandate for and on behalf of the subject “MWM” for her behalfd.The honorable court to give such further orders, directions or reliefs in relation to the guardianship and management of the affairs of the subject by the petitioner including such reporting mechanism as are just and in accordance with the law.e.The costs of this petition be borne by the petitioners in any event.

2. The petition was verified and supported by affidavits of even date sworn by both petitioners.

3. The petition was canvassed by way oral submission by the petitioner’s Advocate Mr M He stated that the petitioners are the only two children of the Subject who is aged 89 years’ old. The subject fell and suffered head injuries and has been bedridden since February, 2022. He prayed that the petitioners be allowed to dispose of some of the properties of the subject so as to take care of the needs of the subject. He also prayed that the petitioners be granted authority to manage the subject’s estate, collect rent, maintain, pay wages and salaries, pay land rates to various county government, pay land rent and service charge and generally keep the properties in the same way the subject has done so far so as to prevent waste and to earn an income from the investments.

4. I have carefully considered this Petition, the affidavit filed in court as well as the evidence adduced in the matter. section 26 of the Mental Health Act, Cap 248, Laws of Kenya provides for the circumstances under which a court may make orders for the guardianship of a subject (patient) and the management of their affairs as follows: -“Order for custody, management and guardianship(1)The court may make orders—(a)for the management of the estate of any person suffering from mental disorder; and(b)for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.(2)Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.(3)Whereupon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.” [own emphasis]

5. The petitioners have sought to be declared as guardians and managers of the subject. To merit the above orders, the petitioners must adduce evidence sufficient to satisfy the court firstly that the patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the Patient is incapable of managing her own affairs. The petitioners stated that the Patient fell in the house in February, 2022 and sustained head injuries. That since the accident she has been unable to fend herself or make any decision on any matter including feeding. That it has become necessary for the petitioners to keep a very close watch over the Subject. EGM had to cut back on her work schedule while JAM who lives in Los Angeles has to make frequent visit to Kenya. The petitioners stated that due to the close attention they are giving to the subject, their earning capacities have reduced while the medical bills have been rising that it has become necessary to sell some of the subject’s properties in particular Plot No 8****(IR No 9662) measuring to offset the bills.

6. The petitioners have produced medical reports for the subject. One is a discharge summary dated March 13, 2022. The other is a report dated 22nd, March, 2022. Both reports show that the Subject suffered severe head trauma and the kind of treatment she received.

7. The court was able to see the subject online. She was bedridden and under nursing care.

8. Based on the material availed to this court I am satisfied that the Subject is at the moment unable to handle her affairs due to the condition that she is in. I am satisfied of the merit of this petition and I hereby allow the petition dated July 15, 2022. The petitioners “JAM” and “EGM” are appointed as guardians and managers for the subject “MWM”. In the discharge of their duties as the guardians and managers of the subject, they shall be governed by the provisions of section 27 of the Mental Health Act Cap 248 Laws of Kenya.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER 2022. E.K. OGOLAJUDGEJudgment delivered online in the presence of:Mr. Andrew- petitionerMs. Gisiele court Assistant