[2019] KEHC 11381 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISC. APPLICATION NO. 35 OF 2019

IN THE MATTER OF THE HEALTH ACT NO. 21 OF 2017

AND

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

AND

IN THE MATER OF [xxxx] SGT PKM

AND

IN THE MATTER OF AN APPLICATION BY MRS. ZC

RULING

1. Through a notice of motion dated 25th March 2019 and filed the same day pursuant to Section 26(1) (a) of the Mental Health Act, Sections 1A and 3A of the Civil Procedure Act Cap 21 of the Laws of Kenya, Order 51 rule 1 of the Civil Procedure Rules, the applicant herein sought orders as follows:

(1) Spent.

(2) That Mrs. ZCM be appointed the Manager of No. [xxxx] Sgt PKM.

(3) That costs of the application be borne by Mrs. ZCM.

2. The applicant herein is a Kenyan female adult who celebrated her marriage to the patient the subject of these proceedings on 31st January 1989 under the Kalenjin Customary Law. To confirm the existence of their marriage she annexed an affidavit signifying their marriage sworn by the patient on 13th November 1989 (See Annexure ZCM-2). The couple has been blessed with 7 children with 3 now over 18 years.

3. The patient is a serving member of the [Particulars withheld] stationed at Nanyuki. That while serving, M (patient) suffered a stroke due to intracranial bleeding leading to neurological defect thus affecting his bodily features save for cardiac respiratory function.

4. A copy of the medical report marked ZCM6 was attached confirming the patient was admitted at Memorial Hospital in March 2012 as a known hypertensive patient with poorly controlled pressures and who presented with sudden loss of consciousness.

5. The report further indicates that a CT scan of the brain had revealed a hemorrhagic stroke. As part of the treatment measures, a neurosurgical team conducted a craniotomy and evacuated the blood. It was however discovered that he had suffered significant irreversible neurological defects and as a result remained in a vegetative state. That as a consequence, he has been on total nursing care and physiotherapy with assisted feeding. That he is cognitively unable to make decisions regarding himself or his family.

6. It is the applicant’s case that since solemnizing their marriage, the patient has been the family bread winner hence the sole financial provider. She averred that since her husband suffered comatose, he has lost the capability to manage his own affairs including authorizing access into his bank account in favour of the family for their daily upkeep and also the school fees for the children.

7. The applicant therefore prayed for authority to manage her husband’s affairs including accessing his Co-operative Bank account No.[xxxx] Bomet Bank through which his salary is paid.

8. During the hearing, the applicant reiterated the averments contained in her affidavit in support. Her children SG (PW2) and JS (PW3) corroborated her testimony thus supporting the application.

9. PW4 Carnal Dr. Milton Obilo the author of the medical report dated 9th January 2019 confirmed that the patient has been in comatose since 2012. Dr. Obilo further stated that the patient had suffered cerebral vascular accident leading to brain bleeding hence suffered a coma. That the patient cannot open his eyes nor move and that he is depending on being fed through tubes. He produced the medical report as an exhibit (Ex.2).

10. I have considered the application herein, affidavit in support, and testimony of the applicant, her two sons and the Doctor who has been attending the patient. There is no dispute that the patient has been in comatose since 2012 after suffering brain damage. It is also admitted that, the patient is in a medical condition or state (mental disorder) that he is unlikely to recover from. That as a consequence, his mental faculties are impaired and incapable of making independent decisions concerning his life and that of his family. As clearly stated by Dr. Obilo, he is in a vegetative state.

11. The law governing custody of patients such as PK, their guardianship and the management or disposal of their estate is the Mental Health Act Cap 248 Section 26 of that act which provides:

(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.

12. Based on the evidence tendered before this court coupled with the medical report, I am satisfied that the patient is incapable of managing his affairs independently and the likelihood of recovering soon is also diminished while the family is suffering as the sole breadwinner is in comatose.

13. Authority to manage affairs of an estate of a patient is donated under Section 27 of the Mental Health Act which provides:

Power of manager in respect of estate

(1) Where a manager is appointed under this Part, the court may order that the manager shall have such general or special powers for the management of the estate as the court considers necessary and proper regard being had to the nature of the property whether movable or immovable, of which the estate may consist:

Provided that—

(i) ….

(ii) no manager may invest any funds belonging to the estate of which he is manager in any company or undertaking in which he himself has an interest, nor on the purchase of immovable property under the authority of paragraph (d) of section 4(1) of the Trustee Act without the prior consent of the court.

(2) Where the person appointed to be manager of an estate or guardian of a person under this Part is unwilling to act gratuitously, the court may fix such allowance to be paid out of the estate of the person in respect of whom the manager or guardian has been appointed as, in the circumstances of the case, the court may think fit.

(3)Any manager appointed under any other law in force before the commencement of this Act shall be deemed to have been appointed under this Act as from such commencement, but shall not be required to file any inventory or statement under subsection (1) of section 33 if he has already done so before such commencement.

(4) For the purposes of this Act and the Penal Code (Cap. 63), a

(5) manager shall be deemed to be a trustee under any other law for the time being in force.

14. Under this provision, the manager so appointed may alienate or dispose of the estate through any of the prescribed means including selling it in a manner proposed by the petitioners but subject to a special authorization from the court. For purposes of this Act, the manager to be appointed shall act as a trustee exercising authority conferred by the court.

15. It is my conviction that the applicant is entitled to apply for appointment as guardian of the patient and manager of the estate only to the extent of accessing his account at Co-operative Bank account No. [xxxx] Bomet branch.

16. Accordingly, the application is hereby allowed with orders that:

(a) The applicant herein Mrs. ZCM is hereby appointed as guardian to the patient herein PKM and manager of his estate.

(b) That the said Mrs. ZCM is hereby authorized to access the patient’s Co-operative bank Account No.[xxxx] Bomet Branch for purposes of withdrawing cash as shall be approved by the court for purposes of paying school fees, daily upkeep for the family and provision for the patient where and when need arises.

(c) That the applicant shall present a quarterly breakdown of her daily upkeep expenses plus school fees for the children for purposes of approval and authorization by the court to access the account.

(d) Costs shall abide by the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JUNE, 2019

J.N. ONYIEGO

JUDGE