[2022] KEHC 15939 (KLR)

In re NZJHB (A Persons Suffering from A Mental Disorder) (Miscellaneous Civil Application E044 of 2022) [2022] KEHC 15939 (KLR) (Family) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15939 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Civil Application E044 of 2022

MA Odero, J

November 4, 2022

IN THE MATTER OF THE MENTAL HEALTH ACT (CAP 248, LAWS OF KENYA AND IN THE MATTER OF NZJHB (A PERSONS SUFFERING FROM A MENTAL DISORDER) AND IN THE MATTER OF AN APPLICATION BY ZJHB TO BE APPOINTED AS THE LEGAL GUARDIAN OVER THE AFFAIRS AND MANAGER OF THE ESTATE OF THE SAID NZJHB

Between

ZJHB

Petitioner

and

NZJHB

Subject

Judgment

1. Before this court is the petition dated March 9, 2022 by which the petitioner seeks the following orders -“i.The honourable court be pleased to order that any moveable or immoveable property within the Republic of Kenya or whosesoever situate vested in NZJHB.ii.In the alternative to prayer (i) herein above, the honorable court be pleased to appoint the petitioner, ZJHB as guardian and/or manager of affairs of NZJHB in accordance with the provisions of the Mental Health Act.iii.This honorable court be pleased to appoint the petitioner as manager of the estate of NZJHB in accordance with the provision of the Mental Health Act.iv.Such other or further order as the court deems fit.v.The costs of this petition be borne by the petitioner.”

2. The petition was supported by the affidavit of even date sworn by the petitioner. The matter was canvassed by way of oral evidence on the virtual platform.

3. The petitioner ZJHB told the court that he is the husband of the subject, NZJHB and that they have been married for the past fifty (50) years. The petitioner stated that the subject is currently ill suffering from dementia. The petitioner stated that the subject is unable to do anything for herself and requires 24 hours nursing care. That her mental capacity has been compromised and she is not in a positon to manager her own affairs. He prays to be appointed as the legal guardian for the subject.

4. “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 subject herein is said to be suffering from alzheimers disease. I have perused the medical reports dated October 1, 2019 and November 10, 2021 both prepared by Dr Juzar Hooker a consulting neurologist who has been treating the subject.

6. The doctor confirms that the subject suffers from advanced alzheimers disease ‘causing severe cognitive impairment’. That as a result, the subject is unable to communicate her wishes due to ‘dementia’ and is therefore not in a positon to manage her own affairs.

7. I was able to see the subject online. She was an elderly woman seated in a slouching manner in a chair. The subject was non communicative and it was clear that she was not aware of her surroundings. The medical report and my own observations convince me that the subject is indeed suffering from a mental impairment in terms of section 26 of the Mental Health Act.

8. The petitioner is the husband of the petitioner. The couple have lived together for fifty (50) years. He is her next of kin. Indeed the petitioner holds a power of attorney granted to him by the subject on December 3, 2012.

9. The children of the subject namely JH and FH who both reside in the United Kingdom, also gave evidence in this matter. They confirmed that their mother suffers dementia and is unable to manage her own affairs. The two daughters confirm that they are aware of and have no objection to this petition filed by their father.

10. Finally, I find that this petition has merit and I do allow the same. This court makes the following orders:-(1)The subject NZJHB is declared to be a person suffering from a mental disorder under the terms of the Mental Health Act, cap 284 Laws of Kenya.(2)The petitioner ZJHB is hereby appointed as legal guardian for the subject and manager of the estate of the subject.(3)No orders on costs.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE