[2017] KEHC 8700 (KLR)
The court found, based on uncontroverted medical evidence and the Applicant's affidavit, that R H K D is suffering from a mental disorder that renders him incapable of managing his personal and financial affairs. The court was satisfied that the statutory requirements under the Mental Health Act had been met,...
Source-derived case information.
- Citation
- [2017] KEHC 8700 (KLR)
- Parties
- Applicant: B D
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 48 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- LA Achode
- Legal Topics
- Guardianship of Persons of Unsound Mind, Mental Health Act Proceedings, Estate Management, Protection of Vulnerable Adults
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
B D
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the Subject, R H K D, is a person of unsound mind incapable of managing his affairs.
- 2 Whether the Applicant should be appointed as guardian and manager of the estate of R H K D under the Mental Health Act.
Ratio Decidendi
The court found, based on uncontroverted medical evidence and the Applicant's affidavit, that R H K D is suffering from a mental disorder that renders him incapable of managing his personal and financial affairs. The court was satisfied that the statutory requirements under the Mental Health Act had been met, including the need for protection of the Subject's interests and estate. The Applicant, as the Subject's mother, was found to be a suitable person to be appointed both as guardian and manager of the estate. The court therefore granted the orders sought to ensure the Subject's welfare and the preservation of his estate.
Court Disposition
application allowed
Orders
- The Applicant is appointed as guardian of R H K D with powers to take any action necessary to seek and obtain medical treatment for him.
- The Applicant is appointed as the Manager of the estate of R H K D with powers to preserve and protect its interests.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY AND PROBATE DIVISION
MISC. APPLICATION NO. 48 OF 2017
IN THE MATTER OF AN APPLICATION FOR GUARDIANSHIP
OF R H K D (A PERSON OF UNSOUND MIND)
B D...............................................APPLICANT
R U L I N G
1. By a Petition dated 31st March, 2017 brought under Section 26and 28of theMental Health Act (Cap 248) laws of Kenya,B D prays for orders of court that:
a) The Applicant be appointed as guardian of R H K D with powers to take any action necessary to seek and obtain medical treatment for him.
b) The Applicant be appointed as the Manager of the estate of R H K D with powers to:
i) Take all and any action necessary subject to provisions of the Mental Health Act for protection and preservation of the Estate of the R H K D.
ii) Take any other necessary action to preserve and protect the interests of R H K D.
2. The application is premised on grounds that R H K D (hereinafter the Subject,) is the Applicant’s son and that he suffers from a disease of the mind that disables him from having any insight. That the Applicant requires to manage the medical treatment of the Subject.
3. The Applicant also states that the Subject is the principal shareholder of the [particulars withheld] Limited (hereinafter S) which is the registered owner of a property known as Land Reference Number […] I.R.[…] (hereinafter Runda Home). That the Subject is also the Principal share Holder of [particulars withheld] Limited (hereinafter A).
4. In a supporting affidavit sworn on 31st March, 2017 the deponent B H K D depones that, she is the mother of the Subject, and his two siblings are B H K D and B H K D. That the Subject is married to A G D but they are currently separated and divorce proceedings are on-going in court.
5. That the Applicant later came to know that the Subject had charged the Runda home to secure a loan in [particulars withheld] Bank Limited. That she does not know how much money is currently owed to the said bank. That the Subject did not consult her when he charged the Runda Home to the bank.
6. That the Applicant is apprehensive that if the Runda Home is sold under the Bank’s Statutory Power of sale, she and the Subject stand to suffer irreparable loss because, the Subject is presently mentally ill, that she will lose her matrimonial home that she and her late husband built and lived in. That the bank may sell the suit property and hand over the residue to S where the Subject is the Principal shareholder, who may misuse or waste the money as has been done to the rest of his father’s estate.
7. The Applicant attached to her application among other annexures a medical report from Dr. Owitti the Consultant Psychiatrist at Chiromo Lane Medical Centre. The doctor observed that the Subject has mania evidenced by extreme grandiosity and narcissism. That this could alcohol related and that the Subject is likely to undergo extreme withdrawal from alcohol if he stays in incarceration for a long period without treatment.
8. I have perused the pleadings filed in this matter, heard the submissions of learned counsel M/s. Thondeka for the Applicant, and also read the medical report prepared by Dr. Owitti. From the foregoing I am persuaded that the Subject is a person who is suffering from a mental disorder. In view of the expert opinion of Dr. Owitti which states that the condition has rendered the Subject incapable of having insight and requiring treatment I find that he is not therefore able to take care of himself and to conduct his own affairs for moment. It is noted that he is currently admitted at Mathari Mental Hospital.
There being merit in the application dated 31st March, 2017, I hereby allow it as prayed by the Applicant, with the following orders:
a) That the Applicant is appointed as guardian of R H K D with powers to take any action necessary to seek and obtain medical treatment for him.
c) That the Applicant is appointed as the Manager of the estate of R H K D with powers to preserve and protect its interests.
The matter will be mentioned on 9th November, 2017 to review the position.
SIGNED DATEDandDELIVEREDin open court this 13th day of April, 2017.
.........................
L. A. ACHODE
JUDGE