[2023] KEHC 27177 (KLR)

In re RBK (Miscellaneous Civil Application E220 of 2023) [2023] KEHC 27177 (KLR) (Civ) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27177 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E220 of 2023

PM Nyaundi, J

December 1, 2023

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

Judgment

1. Before this Court is a Petition dated 13th October 2023 by which the Petitioner Damaris Kilimo seeks the following orders:-i.That Damaris Kilimo, the petitioner herein, be appointed as Guardian and manager of the affairs and Estate of Rawlings Bowen Kilimo.ii.That there be no orders to costs.

2. The Petition was supported by an Affidavit dated 13th October 2023 sworn by the Petitioner. The matter was canvassed by way of viva voce evidence on the online platform. The Petitioner who testified and told the Court that she is the wife of the Subject. They have three children namely Evans Kemboi Kilimo born on 29th June 2011, Abel Ruto Kilimo born on 13th July 2014, Cynthia Jeptoo Kilimo born on 27th April 2020.

3. The Petitioner stated that she was seeking to be appointed as Guardian of her husband’s affairs, and manager of the subject affairs. She told the court that on 18th September 2021 the subject suffered fracture of the arm leading to his visit at St. Francis Community Hospital in Nairobi where he underwent operation as he had a fracture.

4. In the process of the aforesaid operation, the patient suffered massive brain injury (hypoxic/ischaemic brain injury) necessitating his admission at the hospital’s facility and simultaneously put in an intensive Care Unit. Since then the patient has never recovered as he still admitted at the said facility, totally unconscious, unable to move, communicate nor manage his affairs and requiring round the clock nursing care. She has annexed to her Supporting Affidavit, a copy of the medical report of the patient dated 28th January 2022 by Dr.Kihoro/Dr.Jocelyn Nyokabi (Annexure “DK-4”).

5. The Order of guardianship will enable the Petitioner handle the Subject’s affairs including protecting the patient’s interest and pursue justice for him regarding circumstances that occasioned him brain disabling injuries.

6. 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]

7. 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 brain injury (hypoxic/Ischaemic brain injury). She testified that the patient is totally unconscious, unable to move communicate, requiring round the clock nursing care his affairs and is totally dependent on the Applicant.

8. Medical Reports dated 28th January 2022 prepared at St. Francis Community Hospital, was produced as an exhibit. The Doctor diagnosed the subject with Hypoxic /Ischaemic brain injury. The report stated inter alia that:-“Neurologist review for assessment and prognostication was carried out on 14th January 2022. The review concluded that Mr. Bowen sustained significant hypoxic/ischaemic brain injury which portends poor prognosis and would require round the clock nursing care, physical and occupational therapy.

9. 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.Rawlings Bowen Kilimo (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.Damaris Kilimo is hereby appointed the legal guardian to Rawlings Bowen Kilimo.iii.Damaris Kilimo is hereby appointed manager of the estate of Rawlings Bowen Kilimo under Section 28 of Mental Health Act to manage his 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. The Petitioner also mandated to initiate or defend claims with respect to the Subject.iv.Pursuant to this appointment the Petitioner shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging Rawlings Bowen Kilimo.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 Rawlings Bowen Kilimo.vi.As Manager of the Estate of Rawlings Bowen Kilimo, the Petitioner may dispose of the property only with the sanction of the court.vii.There shall be no orders as to the costs of this petition.viii.File closed

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 1st DAY OF DECEMBER, 2023. ……………………………P M NYAUNDIHIGH COURT JUDGEIn the Presence of: Lungwe Advocate for Petitioner