[2022] KEHC 14758 (KLR)

In re Petition for Orders of Custody, Management and Guardianship Relating to JMA (Patient) (Petition E069 of 2022) [2022] KEHC 14758 (KLR) (Family) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14758 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Petition E069 of 2022

MA Odero, J

October 7, 2022

N THE MATTER OF THE MENTAL HEALTH ACT (CAP 248) LAWS OF KENYA AND IN THE MATTER OF A PETITION FOR ORDERS OF CUSTODY, MANAGEMENT AND GUARDIANSHIP RELATING TO JMA (PATIENT) BY ELIZAPHAN AREBA NYANG’ATE......................PETITIONER

Judgment

1. Before this court is the petition dated 5th April 2022 by which the petitioner seeks for the following orders:-“a.The petitioner Elizaphan Areba Nyang’atebe appointed the guardian, custodian and manager of the estate of the patient JMA to transact on her own behalf, or until further orders of the court.b.An order be made allowing Elizaphan Areba Nyang’ateto sign necessary documents for her estate and treatment of her illness.c.In the alternative to prayer (b) above this court do issue an order allowing the petitioner access funds from either Cooperative Bank of Kenya Account No. xxxx, Nairobi Upperhill-Branch and Gusii Mwalimu Sacco Ltd with Account No. xxxx, Kisii Branch for the treatment of the Patient JMA.d.The court do make any or other order that it may deem fit in the circumstances.e.The costs of this Petition be borne by the Petitioner.”

2. The Petition is supported by the affidavit of even date sworn by the petitioner Elizaphan Areba Nyang’ate. The Petition was canvassed by way of viva voce evidence on the virtual platform.

3. The Petitioner told the court that the Subject JA is his wife of thirty eight (38) years. Annexed to the Petition is a copy of the couples marriage certificate Serial Number xxxx (Annexuture EAN ‘2’). The couple have four (4) children who are now all adults.

4. The petitioner told the court that his wife who is now aged fifty eight (58) years fell ill in the year 2017 and was ultimately diagnosed with Alzheimer’s Disease in the year 2018. He states that the subject requires 24 hour medical care as she is unable to do much for herself. He states that the Subject is not in a position to manage her own affairs and as such, the petitioner seeks to be appointed as the legal Guardian and Manager of the Subjects estate.

5. I have carefully considered this petition, the affidavits and reports filed in court as well as the evidence adduced in the matter. Section 26 of the Mental 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]

6. In order to grant the orders being sought the court must be satisfied that the Subject suffers from a mental impairment.

7. I have perused the confidential Medical Report dated 1st March 2022 (Annexture EAN ‘3’) which was prepared by Dr Judith Kwasa, a Consultant Neurologist/Physician. The report indicates that the Subject has suffered a slow but progressive decline in cognitive function. That she is currently unable to work and requires assistance in her activities of daily living.

8. The doctor opined that the subject was not in a positon to manage her own affairs due to her cognitive impairment.

9. I was able to see the subject online. She was an elderly woman who appeared to be in good health. The subject told the court her name but was not able to answer any other question put to her. It was obvious that the Subject did not understand what the court process was about.

10. Based on the medical report and from my own observation I find that the Subject does suffer from a mental disability rendering her incapable of managing her own affairs.

11. The children of the subject all testified in court. They confirmed that their mother suffers from Alzheimer’s Disease and Dementia. That she requires full time care and is not in a positon to manage her own affairs. The said children Lydia Nyaboke Areba, Simon Kimaiga Areba, Solomon Nyang’ate Areba and Joan Kemunto Areba have all signed consents to the Petition (Annextures EAN 1a, 1b, 1c and 1d). They all confirm that they are aware of and support the petition filed by their Father.

12. Based on the foregoing I am satisfied that this Petition has merit and I make the following orders:-1. The subject JA is declared to be a person suffering from mental illness under the Mental Health Act cap 26 Laws of Kenya.2. The petitioner Elizaphan Areba Nyang’ateis hereby appointed as legal Guardian of the Subject JMA and manager of her estate.3. The Petitioner Elizaphan Areba Nyang’ate is hereby appointed as Manager of the estate of the subject under section 28 of the Mental Health Act and is authorized to manage the entire estate of the subject.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ...........................MAUREEN A. ODEROJUDGE