[2023] KEHC 25821 (KLR)

In re PJN (Miscellaneous Civil Application E211 of 2023) [2023] KEHC 25821 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25821 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E211 of 2023

PM Nyaundi, J

November 17, 2023

IN THE MATTER OF THE MENTAL HEALTH ACT CAP 248 LAWS OF KENYA IN THE MATTER OF PJN

Judgment

1. Before this Court is a Petition dated 29th September 2023 by which the Petitioner TWN seeks the following orders: -I.That the subject PJN be adjudged to be person suffering from mental incapacity.II.That TWN be appointed Guardian of PJN.III.That TWN be appointed Manager of PJN and allow her to prosecute the pending case before Milimani CMCC no 2484 of 2011 in place of the subject, operate any of her Bank accounts, sell, dispose, lease, transfer, assign, mortgage and or charge or offer as security or lien, motor vehicles or properties which are in the subjects name.

2. The Petition was supported by an Affidavit dated 29th September 2023 and further Affidavit sworn on 6th October 2023 sworn by the Petitioner. The matter was canvassed by way of viva voce evidence on the online platform. The Petitioner testified and told the Court that she is the daughter of the Subject Patient.

3. The Petitioner stated that she was seeking to be appointed as Guardian of her mother affairs and manager of her estate. She told the court that the patient has been suffering from vascular dementia since 2019 and has since been having difficulties expressing herself. She has cared for her for the last 2-4 years. She moved into the subject residence last year when both her parents were unwell.

4. They live with the subject and her brother. The subject is unable to do much, she is under supervision. That the subject suffers from Vascular Dementia, which has progressively affected her decision-making process, judgment, attention and concentration since 2019. She has annexed to her Supporting Affidavit, a copy of the medical report of the patient dated 21st September 2023 by Dr Violet C.A. Okech-Helu.

5. The Order of guardianship will enable the Petitioner handle the Subject’s affairs including a pending land case in Milimani CMCC 2484 of 2011.

6. KKN and GWN both being children of the subject were present in court and confirmed that they had no objection to the Petitioner being granted guardianship of their mother. They both have filed the requisite consents.

7. The subject was present in Court. She expressed her consent to the Application. It was also evident that she was visibly disturbed. She kept asking for her husband. Thus corroborating the Doctor’s observation.

8. 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 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]

9. The Petitioner has sought to be declared as Guardian and Manager of the Patient. To merit the above orders the Petitioner 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 his own affairs. The Petitioner testified that the Patient was diagnosed with Vascular Dementia. She testified that the patient is suffering from vascular dementia since 2019 and has since been having difficulties expressing herself, the petitioner has always been her and assisted the subject in all her affairs.

10. Medical Reports dated 21st September 2023 prepared by Dr. Violet C.A. Okech-Helu consultant psychiatrist and Chief medical specialist psychiatry at Kenyatta National Hospital was produced as an exhibit. She was present in court. The Doctor diagnosed the subject with Dementia. The report stated inter alia that: -“PJN has been under my medical follow -up since 15th June 2022. She was initially brought to our clinic by her daughter TN and has had several follow-up visits to date.She presented with a history of forgetting things, poor sleep, extremely poor appetite, moods swings, social withdrawal, slowed speech, crying easily, getting disoriented at night, paranoid ideation, she had been on treatment for Hypertension and Diabetes MELLITUS for more than 30 years and suffered a mild stroke in 2019. Recommendation: PJN is unwell with Dementia, which is a progressive, non-reversible disease, HPT and DM. She is mentally unfit to manage her legal affairs and her family should grant power of attorney to one of her children, so that they can continue to take care of her medical, social and daily living needs for the rest of her life.”

11. The Subject’s children are all in agreement with this Petition for Guardianship and have signed consent to the Petition and confirmed his consent to the Court. The Subject currently lives with the Petitioner and her son at their home and the Petitioner has always cared for her.

12. Based on the material availed to this Court I am satisfied that the Subject suffers from a mental illness under the terms of the Mental Health Act, 2022. I am satisfied with the merit of this Petition and order as follows;i.PJN (the Subject) is hereby adjudged to be suffering from mental disorder pursuant to Section 26 of the Mental Health Act, Cap 248 Laws of Kenya.ii.TWN is hereby appointed the legal guardian to PJN.iii.TWN is hereby appointed manager of the estate of PJN under Section 28 of Mental Health Act to manage her 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.iv.Pursuant to this appointment the Petitioner shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging PJN.v.In accordance with Section 27(4) of the Mental Health Act,2022 the Petitioner shall cause within 30 days the publication of notice in the Gazette, informing the public of her appointment as the manager of the estate of PJN.vi.As Manager of the Estate of PJN, the Petitioner may dispose of the property only with the sanction of the court.vii.The matter will be mentioned before the court on 7th March 2024 to confirm compliance.viii.Costs to be met out of the Estate of the Subject.

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 17TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Tuwei h/b for Mr. Kirimi for the PetitionerSylvia Court Assistant