[2023] KEHC 25820 (KLR)

In re PNM (Miscellaneous Civil Application E106 of 2023) [2023] KEHC 25820 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25820 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E106 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 MRS PENINAH NJERI MBUGUA

Judgment

1. Before this Court is a Petition dated 10th May 2023 by which the Petitioner EWG and GMM seeks the following orders: -i.That the subject Mrs PNM be adjudged to be person suffering from mental incapacity.ii.That EWG and GMM be appointed Guardian of Mrs PNM.iii.That EWG and GMM be appointed Manager of the affairs of Mrs PNM for purposes of providing for her general maintenance and medical expenses.iv.That EWG and GM, be allowed to make decisions regarding the welfare and upkeep app of Mrs PNM.v.That the court make any other orders as may be necessary for the interest and welfare of Mrs PNM.

2. The Petition was supported by an Affidavit dated 9th May 2023 sworn by the Petitioner. The matter was canvassed by way of viva voce evidence on the online platform on 20th July 2023 and 7th November 2023. The 1st Petitioner testified and told the Court that she is the daughter of the Subject Patient. The patient is 91 years old.

3. The Petitioners stated that they were seeking to be appointed as Guardians of their mother’s affairs and manager of her estate. She told the court that the patient has been unwell for some time and that she is widow currently residing in Nairobi with 2 care givers.

4. Dr. Nelly Kitazi a consultant psychiatrist was present in court and stated that she examined the subject on 1st December 2021. She is 91 years old. She was wheel chair bond. Her cognitive function were impaired, short time memory impaired. She has been on treatment for Dementia for some time. She has gross cognitive impairment. She might not be able to manage her own affairs. The petitioners are the only children of the subject.

5. The Order of guardianship will enable the Petitioners manage the Subject’s affairs and make decisions regarding her estate.

6. The petitioners are the only children of the subject.

7. The Court was able to observe the Subject who attended Court virtually. She referred to the Petitioners as her sisters and it was evident that she was disoriented.

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 Petitioners have sought to be declared as Guardians and Managers of the Patient. To merit the above orders the Petitioners 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 her own affairs. The Petitioners testified that the Patient was diagnosed with Alzheimer’s Dementia. They testified that the patient she has gross cognitive impairment. She cannot manage her own affairs.

10. I have considered the medical reports dated 10th December 2021 and 4th March 2022 prepared by Dr. K. Ndege of Fortis Suites, Hospital Road were produced as an exhibit. The Doctor diagnosed the subject with Alzheimer’s disease Dementia. The report stated inter alia that: -“The above named patient was first seen in our clinic on 1st of December 2021 with complaints of progressive forgetfulness.On examination she was alert, had decreased short term memory, was disoriented in time and had a Moca score of 7/30. A brain MRI report showed global, especially medical temporal atrophy in keeping with Alzheimer’s disease.All the above is in keeping with a diagnosis of Alzheimer’s disease dementia.”

11. Based on the material availed to this Court I am satisfied that the Subject suffeMrs 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.Mrs PNM (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.EWG and GMM are hereby appointed the legal guardians to Mrs PNMiii.EWG and GMM are hereby appointed managers of the estate of Mrs PNM 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 EWG and GMM shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging Mrs PNM.v.In accordance with Section 27(4) of the Mental Health Act,2022 the Petitioners shall cause within 30 days the publication of notice in the Gazette, informing the public of their appointment as the manager of the estate of Mrs PNM.vi.As Manager of the Estate of Mrs PNM the Petitioners 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:Ms. Kiguatha for the PetitionersSylvia Court Assistant