[2022] KEHC 15868 (KLR)

In re PMMK (Petition E004 of 2021) [2022] KEHC 15868 (KLR) (Family) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15868 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Petition E004 of 2021

MA Odero, J

November 11, 2022

IN THE MATTER OF PMMK AND IN THE MATTER OF SECTION 26 TO 39 OF THE MENTAL HEALTH ACT, CHAPTER 248 LAWS OF KENYA AND IN THE MATTER OF THE RIGHTS OF OLDER MEMBERS OF SOCIETY UNDER ARTICLE 57 OF THE CONSTITUTION

In the matter of

SWM

1st Petitioner

PMM

2nd Petitioner

Judgment

1. Before this court is the amended petition dated May 19, 2022 in which the petitioners SWM and PMM seek the following orders:-(a)That this honourable court be pleased to declare that PMMK is a person suffering from mental disorder as defined in the Mental Health Act, chapter 248, laws of Kenya.(b)That this honourable court be pleased to appoint the petitioners SWM and PMM the guardians and managers of the said PMMK.(c)In the alternative this honourable court be pleased to grant SWM, DMM , PMM and LNM unlimited access to the said PMMK and that the interested party be ordered to facilitate the access.(d)The costs of this petition be borne by the estate of the said PMMK.

2. The petition was supported by the affidavit of even date sworn by the petitioners.

3. The respondent EM opposed the application through her replying affidavit dated June 10, 2021. The matter was canvassed by way ofviva voce evidence. The petitioners both testified in support of their case whilst the respondent also called two (2) witnesses.

The Evidence 4. The petitioners state that they are the wife and son of the subject PMMK. The 1st petitioner told the court that she got married to the subject under Kikuyu customary law in the year 1983. That she came into the marriage with one son named DMM who the subject adopted as his own. That together the 1st respondent and the subject bore two (2) children namely -1. PMM2. LN

5. The 1st petitioner stated that in agreement with the subject and with his full consent she travelled to the United States in 1996 leaving her children in the care of her sister. That during her absence the subject continued to visit and provide for the children.

6. The 1st petitioner stated that she finally returned to Kenya in the year 2013. She states that she last saw the subject in the year 2017. The petitioners aver that the subject is ill and has been suffering from dementia since 2018 causing cognitive decline.

7. The petitioners state that the subject is separated from the 1st petitioner and is currently living with the respondent EW in a residence along Kiambu Road. The petitioners state that the family of the subject are apprehensive that he is not receiving adequate medical attention.

8. They allege that the subjects assets are at risk of dissipation. They accuse the respondent of having sold off property belonging to the subject and the 1st petitioner which property was acquired during the period of their coverture. The petitioners allege that they have been denied access to the subject. They now pray to be appointed as the legal guardians for the subject.

9. The respondent vehemently opposes this petition. The respondent told the court that she is the only legal wife of the subject, the two having been married under Kikuyu customary law on September 8, 2008. That the couple later formalized their union through a civil marriage conducted on February 2, 2010. That the couple have lived as man and wife to the present time.

10. The respondent told the court that she and the subject bore no children together. However, she states that the subject bore a son Jackson Musango Mbatia with a lady known as Jane Nasimiyu (who is now deceased). She also states that the subject bore two (2) children with SWM, the 1st petitioner namely –1. LN2. PMM

11. The respondent denies that the 1st petitioner is a wife to the subject. The respondent confirms that the subject has been ill for several years and that he is now bedridden. She states that she has singlehandedly provided for his medical care and treatment with some assistance from the estate of the late PMMK

12. The respondent denies that she has denied the petitioners access to the subject. She states that the children of the subject have had free access to him and that before he fell ill the subject also used to visit his children.

13. The respondent denies the allegation that she has wasted or sold off any of the subjects properties. The respondent concludes that the petitioners application for legal guardianship is purely motivated by greed in the hope of benefiting from the estate of the subjects father the late PMMK . She urges the court to dismiss the petition in its entirety.

Analyses and Determination 14. I have carefully considered this petition, the replying affidavit filed in response thereto, the evidence adduced by the parties as well as the written submissions filed by both parties.

15. The fact that the subject is unwell is not in any doubt. None of the parties denies this. The respondent who lives with and cares for the subject told the court that he first fell ill in the year 1998. That his condition continued to deteriorate to the point that he is now bedridden and requires round the clock nursing care.

16. 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 patient (subject) and for 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)

17. I have perused the medical report dated May 18, 2021 prepared in respect of the subject by Dr Harun Otieno a Consultant Cardiologist. I have also perused the medical report dated October 4, 1999 and the one dated June 13, 1999. These indicate that the Subject underwent a coronary bypass surgery in South Africa on September 21, 1999. The subject also suffers from alzheimer’s dementia, kidney disease and type 2 diabetes. There can be no doubt that the subject is seriously ill.

18. I was able to see the subject online. He was lying prone on a bed in his bedroom home surrounded by medical equipment and with a nurse in attendance. The subject was uncommunicative and appeared to be unconscious. In my opinion the subject is not in any positon to manage his own affairs. He is clearly suffering from a mental disorder and is in need of a legal guardian.

19. The petitioners have filed this petition in their capacity as the wife and son of the subject. There is no dispute that the 2nd petitioner is a son to the subject. The respondent herself confirms that the subject bore two (2) children with the 1st petitioner.

20. However, the claim by the 1st petitioner that she is a wife to the subject has been vehemently opposed by the respondent. The 1st petitioner claims that the subject married her under Kikuyu customary law in the year 1983. She then left for the USA in 1996 and lived there until 2001. The 1st petitioner briefly returned to Kenya then returned to the USA where she remained until the year 2013.

21. It would appear that despite her claim to have been married to the subject the 1st petitioner did not cohabit continuously with the subject. They may have cohabited sporadically when the 1st petitioner was in Kenya and the subject may have visited the 1st petitioner in America. This is not proof of the existence of marriage. Even during the periods when she travelled to the USA as she says with the full knowledge and consent of the subject, the 1st petitioner did not leave her children with their father. Rather she left them in the care of her sister.

22. The respondent on the other hand testified that she got married to the subject on September 8, 2008 under customary law. She has annexed to her replying affidavit copies of an affidavit of marriage dated October 5, 2009 sworn by herself and the subject (annexture ‘EXV-1’).

23. The couple later formalized their union through a civil marriage conducted on February 2, 2010. A copy of the marriage certificate serial Number 176336 is annexed to the replying affidavit.

24. The subject therefore married the respondent under statutory law in the year 2010. Although the 1st petitioner claims to have gotten married to the subject in 1983 she has not availed any tangible proof of such marriage. Apparently, no objection was raised by the 1st petitioner or by any other party when the subject married the respondent in the year 2008. Indeed the 1st petitioner to date has not challenged that marriage. According to the 1st petitioner she has not seen the subject since the year 2017. The obvious question that would arise is, if the Subject was her husband, why the 1st petitioner has taken no steps to remedy this situation. Clearly, the 1st petitioner has no interest in seeing the subject. She was comfortable with the status quo.

25. The respondent told court that she has cohabited with the subject in Langata and on Kiambu Road to date. This is confirmed by the 2nd petitioner who states that he used to visit his father at his Langata home. For purposes of this petition, i find that the respondent is the legal wife of the subject who resides with him to date.

26. The petitioners in seeking to be appointed as the legal guardians for the subject claim that the subject has not been receiving adequate medical attention from the respondent. The petitioners have not availed any evidence to back these allegations. They have not demonstrated in what manner the care being provided to the subject is inadequate and/or substandard.

27. The respondent has narrated all the steps she has taken to accord the subject the best medical attention. The respondent accompanied the subject to South Africa for surgery. At the time of this hearing, the respondent had facilitated the admission of the subject at the Aga Khan Hospital, which is a premier medical facility in Kenya.

28. In the medical report dated May 18, 2021 Dr Otieno who is one of the doctors caring for subject states as follows:-“It is my opinion that Mr PMMK has been receiving adequate medical and personal care from his family namely his wife Mrs EM .” (Own emphasis)

29. It is amazing that the petitioners are applying to be appointed as legal guardians yet by their own admission they have made no contribution financial or material towards the medical care of the subject. In her evidence, the 1st petitioner admits that –“I have not paid any of his (the subject) medical bills.....” the estate (of the latePMMK) have been paying the medical bills. I have no evidence to prove this.....)" (Own emphasis)

30. Further on in her evidence the 1st petitioner admits she does not know and has never met the Doctor who is treating the subject. Why would the petitioner seek to be appointed as legal guardian for a man they have not seen since 2017 and in whose treatment they have played no role whatsoever. There is clearly more to this petition than meets the eye. The 1st petitioner finally admitted that she had no evidence of any negligence by the respondent.

31. The respondent explained that some of the medical bills for the subject were met by the Kenya Association of Retired Officers of which the subject is a member whilst other bills have been catered for by the respondents own medical cover on which she has included the subject. Yet other medical bills have been paid for by the respondent personally using her credit card. The respondent has annexed the relevant documentation in support of this evidence (annextures EM5, EM6, EM7 and EM8’).

32. DW2 Boniface Mwashi Miheso who is one of the nurses attending to the subject told the court that it is the respondent who pays his dues. It is ironic petitioners who have made no contribution towards the subjects medical bill or indeed his medical care now feel that they are best placed to be appointed as his legal guardians.

33. The respondent must be commended for the great lengths she has taken to ensure that the subject obtains the best quality of medical care. This is quite evident from the steps she has taken to equip their bedroom with life saving medical equipment, which were all pointed out to the court by DW2 the nurse was attending to the subject.

34. The petitioners have accused the respondent of denying them access to the subject. Once again, this is not entirely true. The 2nd petitioner confirms that he used to visit the subject and his wife in their home in Langata. The petitioners also confirmed that the 1st petitioners daughter LN did visit her father in the home he shared with the respondent to introduce her fiancé and to seek her father’s blessing for her upcoming marriage. The respondent testified that she has kept the subjects daughter informed of her father’s health challenges and has informed her whenever the subject was admitted into hospital.

35. The subject as I observed earlier is seriously ill. The petitioners cannot expect to waltz into the respondents home whenever they feel like it. In his current state, the subject can only be visited with prior arrangement and upon clearance from the doctors.

36. I reject the petitioners allegation that they have been denied access to the subject.

37. Despite the petitioners allegation that the estate of the subject is threatened with wastage they have adduced no evidence to show what assets have been illegally disposed of by the respondent. The petitioners have not availed to the court the particulars of the properties, which they allege have been sold off by the respondent.

38. All in all I find this petition to have been baseless, malicious and totally uncalled for. It is clear to this court that the respondent has availed to the subject the highest standard of medical care possible. The respondent is the primary caregiver for the subject and she has utilized her own resources in providing for the subject. The respondent has turned their bedroom into a mini ICU and has hired nurses whom she pays to take care of the subject. Indeed the respondent gives true meaning to the marital vows ‘for better or for worse’. She has dedicated herself to the care and welfare of the Subject.

39. In the case of In re NMK (2017) eKLR, the court in considering what should be borne in mind when an application for guardianship is made under section 26 and 27 of cap 248 stated as follows”-“14. In considering an application brought under sections 26 and 27 of the Mental Health Act, the court is guided by three main factors:a.There must be medical evidence warranting the determination by the court that the subject suffers from mental disorder;b.The person to be appointed to be either a guardian or manager must be fit to be so appointed;c.The court must be satisfied that a proposed manager will utilize her powers for the benefit and welfare of the subject.”15. The overriding principles in applying all these factors is that the welfare and best interest of the subject must be the overall guiding principle." (own emphasis)

40. The petitioners do not in my view have the best interests of the subject at heart. They are clearly motivated by factors other than the well being of the subject. I therefore decline their petition to be appointed as the legal guardians for the subject.

Conclusion 41. Finally, I find no merit in this petition. The court makes the following orders:-1)The amended petition dated May 19, 2022 is hereby dismissed in its entirety.2)The 2nd petitioner and her sister LN to be allowed access to the subject only upon prior arrangement with the respondent and upon clearance being granted by a medical practitioner.3)Since the petitioners dragged the respondent to court on baseless allegations, I direct that the petitioners meet the costs of this petition.

DATED IN NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE