[2022] KEHC 11796 (KLR)

In re of JNM (Miscellaneous Application E007 of 2022) [2022] KEHC 11796 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11796 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E007 of 2022

MW Muigai, J

May 18, 2022

IN THE MATTER OF AN APPLICATION BY AMN TO BE APPOINTED GUARDIAN & LEGAL MANAGER OVER THE AFFAIRS OF THE ESTATE OF THE SAID JNM

In the matter of

AMN

Petitioner

Ruling

1. The applicant herein, AMN under certificate of urgency filed petition under section 26(1) and (3), 27 (1) and 32 of the Mental Health Act Cap 248 and she sought to be appointed Guardian of JNM and legal manager of his estate.

2. The subject, JNM of ID No xxxx suffers from mental disorder and has developed intellectual deficit such that he cannot have an independent existence and/or manage his affairs.

3. The applicant, AMN ID No xxxx presented the subject’s current medical report dated April 7, 2022from Dr Benjamin Nzomo from Matuu Level 4 Hospital where the doctor confirmed the subject has been in treatment for the last 5 years and suffers from dementia. The doctor observed; dementia is ‘characterized by gradual memory loss, hallucinations and tendency to violence and slurry speech which in the recent past has deteriorated to inability to talk. He is not orientated in time, place or person and his current cognitive functions are almost non-existent.’

4. The applicant obtained the letter from Chief Kivaa Location Kindaruma of January 4, 2022 that confirmed that the subject who has been a teacher for more than 25 years hails from Kivaa location and has been diagnosed with memory loss and is currently treated at Matuu sub-District Hospital.

5. The Chief confirmed the subject’s family consists of the applicant AMN; wife of JN (subject) and together have five children namely; JMN (26 years) FMN (24 years) EMN (21 years) solemnized (19 years) and EMN (17 years).

6. The applicant deposed that she is the wife to the subject, JNM(the subject) and annexed the marriage certificate No xxxxxx that confirms their marriage was solemnized on December 2, 1995 at AIC Kyundoni Machakos. The applicant’s husband has been sick since 2018 suffering from dementia, manifested by progressive memory loss and the situation has been worsening every time and day and the subject is not expected to recover soon to sufficiently shoulder any of his previous responsibilities.

7. The head teacher of [Particulars Withheld] Primary School vide letter dated March 3, 2022 deposed that AMN; is a teacher at the School TSC No xxxx and the applicant is married to Jeremiah Nzioki Mutua.

8. The applicant also annexed the consent to guardianship form by the children of the deceased – JMN, FMN, EMN and SMN who all signed a joint consent to guardianship dated May 10, 2022. Since the subject is mentally challenged, they consented to have the applicant be appointed his legal guardian and legal manager of his estate. The subject's current medical incapacity makes him lack ability to sufficiently comprehend and make informed decisions on his affairs and cater for his well-being.

9. The subject holds a bank Account with Kenya Commercial Bank (KCB) Matuu Branch Account Number xxxxx as evidenced by copy of his Bank Account Card annexed and copy of Identity Card No xxxxx.

10. There some of the subject’s children that are still in school the applicant prays to be allowed access to the subject’s Bank Account No xxxx with KCB Bank Kenya Limited Matuu Branch and any other bank accounts in any bank held by Jeremiah Nzioki Mutua the subject herein for the purpose of paying medical expenses, paying school fees for these children; annexed are the fees structures for the children who are in school; namely;a.EMN -[Particulars Withheld] University,b.EN- [Particulars Withheld] Secondary School and from [Particulars Withheld] University respectively.

11. The applicant deposed that the subject JNM, has bank accounts within the republic of Kenya and other properties. Due to the subject’s mental condition, he is unable to execute or make rational and informed judgment or decisions concerning the said bank accounts and other properties registered in his name.

Determination 12. From the foregoing, the issue(s) that are to be determined by the court are:-1. Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248. 2.Whether the petitioner should be appointed as guardian to the subject as well as manager of the estate of the subject.

13. The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons. Section 26 of the Act grants the court powers to grant orders for management of the estate of subject JNM and for his guardianship by the applicant and wife AMN.

14. Section 26 & 28 of the Act provide the court upon inquiry to grant orders for custody, guardianship of the subject and management of the subject's estate. Section 26(3) of the Act provides,“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 persons, including proper provision for his maintenance…”

15. From the evidence on record produced by the petitioner, more importantly, the medical report and written consent of the subject’s children, it is not disputed that the subject is suffering from a mental disorder that renders him incapable managing himself and his affairs a medical condition contemplated under Section 26 of the Mental Health Act.

16. Therefore, relying on the medical report from Dr Benjamin Nzomo from Matuu Level 4 Hospital of April 7, 2022 filed court confirms that the subject suffers mental disorder and requires continuous and consistent help and assistance and care including proper provision for his maintenance; the subject shall require funds to facilitate and ensure provision of medical care, nutrition, hygiene and upkeep.

17. This court is satisfied from the evidence on record that the petitioner has made out the case in support of the petition that the subject suffers mental incapacity and requires care and attention for his well-being.

18. Therefore, in the interest of justice, the applicant who is his wife ought to be appointed legal guardian of the subject to cater for the subject’s wellbeing and legal manager of his estate to execute the documents and take informed decisions and execute them on the subject’s behalf.

Disposition:In light of the above, the court grants the following orders:-1. JNM (the Subject) is hereby declared to be suffering from mental disorder pursuant to Section 26 of the Mental Health Act, Cap 248 Laws of Kenya.

2. AMN is hereby appointed the legal guardian to JNM.

3. AMN is hereby appointed manager of the estate of JNM under section 28 of Mental Health Act to manage his estate including any such description of moveable or immoveable property, money, debts and legacies, power to execute, sign all deeds and instruments relating to or evidencing the title or right to any property or giving a right to receive any money or goods.

4. AMN to manage the subject's bank accounts and access the said accounts for the purposes of obtaining funds for the subject’s maintenance, medical expenses, maintenance of subject’s dependents’ by payment of their children school fees through access by the Guardian & Manager to Kenya Commercial Bank (KCB) Matuu Branch Account Number XXXX

5. AMN to manage and utilize the funds in the bank accounts to ensure he is well taken care of, by provision of necessaries; fixed abode, food and clothing and medical care and caregiving.

DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 18TH MAY 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE