[2022] KEHC 10476 (KLR)

In re SRK (Miscellaneous Application 170 of 2019) [2022] KEHC 10476 (KLR) (Family) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10476 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application 170 of 2019

MA Odero, J

May 6, 2022

IN THE MATTER OF SRK AND IN THE MATTER OF THE MENTAL HEALTH ACT CHAPTER 248 OF THE LAWS OF KENYA AND IN THE MATTER OF THE RIGHTS OF OLDER MEMBERS OF SOCIETY UNDER ARTICLES 57 OF THE CONSTITUTION

Judgment

1. On 9th October 2019, SMK and RNK (both sons of the Subject SRK) filed in court a petition seeking that the Subject be declared a person suffering from a mental disorder as defined by the Mental Health Act, Cap 248, Laws of Kenya. The also prayed to be appointed as legal Guardians of the Subject and managers of his estate.

2. The hearing of the Petition commenced before this court on 3rd June 2021. However, during the course of that hearing two of the Subject’s children namely, FWM (hereinafter referred to as ‘F’) and ARWK (hereinafter referred to as ‘A’) both objected to the petitioners being appointed as managers of the estate of the Subject. The court directed the parties to hold discussions with a view to reaching some consensus on the matter. As a result of discussions the parties entered into a consent on the question of Guardianship only.

3. The consent dated 19th November 2021 read as follows:-“It is hereby ordered by consent that:-1. That SMK, be and is hereby appointed as the guardian of the Subject SRK under the Mental Health Act, Cap 248 Laws of Kenya.2. That hearing the question of management to proceed by way of viva voce evidence on 14th October 2021. 3.That .............. ”

4. The above consent was adopted by the court on 22nd September 2021.

5. The Petition was thereafter set down for hearing on the issue only of the appointment of a manager for the estate of the Subject. In the Petition dated 9th October 2019 the Petitioners sought the orders that-“(i)This Honourable Court be pleased to declare that Mr SRK is a person suffering from Mental Disorder as defined in the Mental Health Act, Cap 248 of the Laws of Kenya.(ii)This Honourable court be also pleased to appoint Mr RNK the second Petitioner herein to be the manager of the estate of the said Mr SRK.(iii)The costs of this application be borne by the estate of the said Mr SRK.”

6. The Petition was supported by the joint affidavit of even date sworn by the two petitioners as well as Replying Affidavits in support of Petition sworn by MWK and SKK.

7. ARW one of the children of the Subject opposed the Petition through her Replying Affidavit it dated 30th June 2021. The other child of the Subject FWM opposed the Petition but did not file any Affidavits in the matter. The 2nd petitioner filed a supplementary affidavit dated 7th July 2021 in response to the Replying Affidavit filed by ‘ARW’.

The Evidence 8. The matter was heard by way of viva voce evidence. The 2nd Petitioner RNK relied on his Affidavit dated 7th October 2019 as well as his supplementary Affidavit dated 7th July 2021. He stated that he was one of the sons of the Subject. ‘RNK’ further stated that the Petitioners wife passed away in the year 2009. The 2nd Petitioner resides in North Carolina, USA.

9. The 2nd Petitioner told the court that the Subject has advanced Alzheimer’s Disease and required full time nursing care. That the subject currently lives with his brother the 1st Petitioner. That he and a brother named ‘SKK’ (who also resides in the USA), have been sending money regularly towards the medical care and upkeep of the Subject. The 2nd Petitioner told the court that he condition suffered by the Subject is degenerative and he is not in a position to manage the estate. He applies to be appointed as manager of the estate of the Subject.

10. The 2nd Petitioner confirms that he is aware of the opposition by his sister ‘ARWK’ to his being appointed as ‘Manager’. He points out that ‘ARWK’ has not however filed a cross-petition seeking the appointment of herself as manager of the estate of the Subject. The 2nd Petitioner stated that ‘ARWK’ would not be a suitable manager for several reasons.

11. Firstly, that when the Subject was living with ‘ARWK’ in her house in Kiambu his health declined drastically and the Subject lost a lot of weight. Secondly, that ‘ARWK’ has coerced their father into transferring to herself large sums of money (Kshs 46 million) that she has taken funds out of the Subjects account without his authority and that she has coerced the Subject into transferring to herself 18 out of 20 plots of land located in Nyeri (L.R. No xxxx). Additionally, the family home in Nyeri being L.R. No. xxxx was also transferred to ‘ARWK’ as a ‘gift’. As such, the 2nd Petitioner asserts that the only real interest ‘ARWK’ has in the Subject is to get her hands on his wealth and she is not concerned with his health and/or well being.

12. PW2 SMK is the 2nd Petitioner who under the terms of the consent entered into between the parties was granted Guardianship over the Subject. PW2 confirms that the Subject resides with him in his home in the Kilimani area of Nairobi. He confirms that the Subject suffers from Alzheimers Disease, which has rendered him incapable to managing his own affairs.

13. PW2 confirms that he supports this petition by his brother ‘ RNK’ seeking to be appointed as manager of the affairs of the subject. He states that he categorically opposes the appointment of his sister ‘ARWK’ as manager as she did not provide proper care to the Subject while he lived with her in Kiambu home.

14. PW2 further asserts that he would not be in a position to work harmoniously with ‘ARWK’ if she were to be appointed as manager because their interests in respect of the Subject are not aligned.

15. PW3 MWK is a daughter of the Subject. She stated that she is the Managing Director of [Particulars Withheld] Ltd which is a family company based in Industrial Area. PW3 confirms that the Subject suffers from a mental disorder and is not capable of managing his own affairs.

16. PW3 stated that she fully supports this Petition by her brother ‘RNK’ to be appointed as manager of the affairs of the Subject. That ‘RNK’ is competent and capable to manage the Subjects affairs and that he has always shown great concern of the welfare of the Subject and that despite living in the USA ‘RNK’ has always made contribution towards the upkeep and medical care of their father and has worked as a team with the other siblings to ensure that the Subject receives all necessary medical attention.

17. PW3 describes her sister ‘ARWK’ as toxic and opposes the appointment of ‘ARWK’ as manager on grounds that she did not provide proper care for the Subject while he lived with her.

18. PW4 SKK who is the youngest son of the Subject told the court that he also resides in North Carolina, USA. He confirms that the Subject suffers from a mental disorder, which renders him incapable of managing his own affairs.

19. PW4 states that he fully supports this petition by his brother ‘RNK’ to be appointed as manager of the Subjects estate. He opposes the appointment of his sister ‘ARWK’ as manager on grounds that the condition of the Subject drastically declined whilst he was living with ‘ARWK’. PW4 further states that ‘ARWK’ does not put the interest of the subject above her own personal interests and that she is non-compromising.

20. The Respondent ARWK confirms that she is a daughter of the Subject. She confirms that the Subject suffers from Alzheimer Disease and is not in a positon to manage his own affairs. The Respondent told the court that from 2013 she lived with the Subject in the family home in Kilimani together with her other sister ‘MWK’ (PW3). That in December 2015 she moved with her father to live in Kiambu and she paid and provided for his nursing care, whilst the Subject lived with her.

21. The Respondent complains that in 2016 her siblings forcibly removed the Subject from her home and took him to live with her brother SMK in Kilimani. She denies having neglected the Subject when he lived with her. Whilst the Respondents holds a power of Attorney issued to her by subject she denies having stolen his money or having coerced him to transfer money and properties to her name.

22. The Respondent asserts that she is best placed to manage the affairs of the Subject as she already holds a power of Attorney issued in her favour by the Subject and states that she is the most acquainted with the Subjects business accounts and properties. That since she was in her 20’s the Subject has involved her in his business affairs and that she has for several years held a power of Attorney donated to her by the Subject.

23. The other child of the Subject FWM opted not to testify in this matter. The said ‘FWM’ was born out of a relationship the Subject had with her mother who was a widow and as such is a stepsister to the other siblings. She stated that she wished to leave the matter to the court to decide.

Analysis and Determination 24. I have carefully considered the Petition filed by the 2nd Petitioner, the Replying Affidavit on record as well as the written submissions filed by both parties. In order for a Petition seeking management of an estate to be granted it must be proved that the patient (Subject) is suffering from a mental disorder which renders him/her incapable of managing his/her own affairs.

25. Section 26 of the Mental Health Act 248 Laws of Kenya provides for the circumstances under which a court may make orders for the Guardianship of a Subject (patient) 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)

26. In the case of In Re N.M.K.(2017) eKLR, the Court considered what should be borne in mind when an application is made under Section 26 and 27 of Cap 248 and 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)

27. All the witnesses confirm to the court that the Subject is unwell and is suffering from Alzheimers Disease. Annexed to the main petition dated 9th October 2029 are photographs taken of the Subject. The photos depict a frail elderly gentleman seated on an armchair surrounded by medical equipment (Annexture ‘SK-2’).

28. The Petitioners have also annexed to their Petition two medical reports. The first is the Medical Report dated 3rd November 2016 prepared by Dr Dilraj Singh Sokhi Consultant Neurologist, Aga Khan University, Hospital Nairobi (Annexture ‘SK-1’). In that report, the Doctor concluded as follows: -“In summary, therefore, I believe Mr K has Alzheimer’s Disease and is improving on the appropriate medication. He is rehabilitating well from his other acute illnesses as detailed above, and is continuing with therapy at home. He also a nurse aid present most of the day. With is diagnosis and dementia, it is very clear clinically that he does not and will not have the capacity to make his own decisions and this has been explained clearly to the family they have been encouraged to take necessary steps to look after their father’s health and welfare. I will continue to look after Mr K as an outpatient in my neurology clinic.”

29. The second medical report is dated 7th October 2019 and was prepared by Dr Thomas O. Kwasa Consultant Neurophysician. The report stated as follows:-“His cognitive function has deteriorated in parallel to a point he is now incapable of managing his business affairs. It is recommended that he gets a legal guardian to take care of his business and legal affairs.”

30. From the above medical reports, the evidence of all the witnesses and the annexed photographs, I find that the Subject suffers from a mental disorder and is incapable of managing his own affairs.

31. The question of Guardianship having been settled by consent the only issue now for determination is whether the Petition filed by the 2nd Petitioner seeking to be appointed manager of the Affairs of the Subject ought to be allowed.

32. It is common ground that the 1st and 2nd Petitioners PW3, PW4 and the Respondent are all the children of the Subject. The siblings all confirm that their mother passed away on 7th July 2009. FWM is also a child of the Subject by a different woman and from the evidence, it is clear that she was raised in a separate household

33. Further it is common ground that the Subject begun to ail in the year 2007. Sometime in July 2012, the Subject moved to the family home in Valley Arcade where he resided with his children ‘MWK’ and ‘ARWK’. Thereafter in the December 2015, ‘ARWK’ left the family home and moved with her father to live in Kiambu. In October 2016, the 1st Petitioner and others removed the Subject from the home of ‘ARWK’ in Kiambu and took him to the home of the 1st Petitioner in Kilimani where the Subject resides to date.

34. The 2nd Petitioner told the court that although he lives in the USA he has kept close tabs on the health of the Subject. That from October 2016 a sum of Kshs 101,618 was given to the Subject as a monthly Directors Fee from the Family Company known as [Particulars Withheld] Ltd. This money was to be utilized to provide for the medical care of the Subject.

35. However, this amount proved to be inadequate as the Subject’s medical expenses which included a full time nurse and physiotherapist increased. As a result, the 2nd petitioner and their brother ‘SKK’ who also lived in the USA began in September 2018 to contribute Kshs. 110,000 per month for the care of their father. The 2nd petitioner told the court that it is he and his brothers who have been meeting the cost of the Subjects treatment. He seeks to be appointed as manager to enable him access the Accounts of the Subject to obtain funds to continue to meet the costs of the treatments required by the Subject.

36. The Petition by the 2nd Petitioner is fully supported by the other siblings MWK, SMK and SKK who all swore affidavits in support of the Petition. The three siblings all testified in court and stated that they were confident that the 2nd petitioner was best placed to take over management of the Subjects estate. The siblings all spoke highly of RNK extoling his maturity, his love for his father and referred to him as the family ‘peace-maker”. The other sister ‘FWM’ did not support the petition neither did she oppose it. She preferred to leave the matter to the court to decide.

37. Only one member of the family namely ‘ARWK’ opposed the Petition. She stated that she was better placed to take up management of her father’s estate and argued that the 2nd Petitioner who lived in the USA would not be able to conveniently manage the estate.

38. The Respondent ‘ARWK’ has told the court that she is the best person to be appointed as Manager of their fathers Estate. However, the Respondent has not filed a formal Cross-Petition seeking to be appointed as manager. The plea by ‘ARWK’ to be appointed as manager is clearly an ‘afterthought’ coming as it does almost two (2) years after the petition was filed. The same is obviously a reaction to the ‘bad blood’ existing between ‘ARWK’ and her siblings and does not appear to arise form a genuine concern for the Subject.

39. It is evident to the court that there exists two factions in this family. ‘ARWK’ leads one faction probably with the support of ‘FWM’ whilst all the other siblings are in support of the 2nd Petitioner.

40. The positon of manager puts the person in a fiduciary position as far as the Subject and his estate are concerned. The manager becomes a trustee with the burden of accounting to the court to the other siblings regarding his management of the estate of the Subject.

41. From the evidence it is revealed that the Subject transferred to ‘ARWK’ 18 out of 20 plots during the period 2011 and 2012. Further, the Subject also transferred to ‘ARWK’ an amount of Kshs 46,806,290 being proceeds of sale of his property L.R. No xxxx. Ibis Road in the Nyari area of Nairobi. Her claim that these were given to her as ‘gifts’ from her father rings hollow.

42. It is very odd that a man who has six (6) children would transfer such large portion of his estate to only one of his children leaving out all his other children. What qualities does ‘ARWK’ possess over and above her other siblings to merit being vested with close to 70% of her Fathers estate to the exclusion of his other children.

43. This court cannot rule out the possibility that the real interest which ‘ARWK ’ has in managing the estate of the Subject is not for the welfare and benefit of the Subject but to enable her continue to wheedle such ‘gifts’ from her father. ‘ARWK ’ claims that she has utilized part of the funds transferred to her by the Subject in paying for his medical expenses. However, she has not annexed any statement of Account to show exactly how that money has been spent. She has not been transparent with her siblings in the manner in which she has managed the Subjects resources. In the circumstances, ‘ ARWK’ is not in my view the best person to be appointed manager.

44. It is pertinent that all the other children support the appointment of the 2nd petitioner as the Manager. I note that when the subject suffered a clot and required an operation all the siblings excluding ‘ ARWK ’ participated in contributing funds towards his medical expenses. It is manifest that ‘ ARWK ’ is at odds with her other siblings and would not in the circumstances be the best fit for manager.

45. The court has already appointed the 1st Petitioner ‘SMK ’ as Guardian for the Subject. It is imperative that the Guardian and Manager be able to act harmoniously for the benefit and welfare of the Subject. The 1st Petitioner stated categorically that he would not be able to work harmoniously with ‘ARWK’ as their interests do not align.‘ARWK’ herself confirmed that she does not get on well with ‘SMK’ who is the court appointed Guardian. In the circumstances, it would be detrimental to the estate to appoint ‘ARWK’ as manager. On the other hand, the 1st Petitioner has already been working with the 2nd Petitioner and the other siblings for the benefit of the Subject.

46. ‘RNK’ has already proved by his actions his concern for the welfare of the Subject. Originally, ‘RNK’ and her brother ‘SMK’ were contributing Kshs 110,000 towards the upkeep of the Subject but have had to increase their combined contribution to Kshs 134,000.

47. On the other hand aside from providing for her father when he lived with her in ‘Kiambu’ ‘ARWK’ appears not to be forth coming with financial help in caring for the Subject despite her holding on to a substantial portion of the Subjects assets. Under cross-examination ‘ARWK’ admitted that since the year 2016 she has made no financial contribution towards the medical care of the Subject. Sometime in December 2020 ‘ARWK’ was requested to release a portion of the Kshs 46 million transferred to her in order to cater for some of her father’s bills. She declined to do so.

48. The transfer of the family’s rural home to ‘ARWK’ ostensibly as a ‘gift’ has been challenged by the other siblings in court vide ELC No. 163 of 2009. If ‘ARWK’ were to be appointed as manager of the estate there would arise a serious conflict of interest on her part.

49. The parties dwelt at length on the issue of the validity of the transfers of money and property made to ‘ARWK’ by their father. It is not the mandate of this court to delve into those issues. Suffice to say that there exists a dispute between the parties on how ‘ARWK’ has been utilizing the power of Attorney donated to her by the Subject.

50. From the evidence adduced in court it is apparent that there exists simmering dispute between all the siblings and ‘ARWK’. The source of this simmering dispute are the “gifts’ allegedly given to ‘ARWK’ by the Subject as well as issues relating to the estate of their late mother. These are issues which do not concern this court. The only issue this court is concerned with is the well-being of the Subject and the protection of his estate.

51. Based on the dynamics of this case I find that the best person to be appointed manager who will best cater for the welfare and benefit of the Subject is the 2nd Petitioner. Therefore, I allow the Petition dated 9th October 2021 and I make the following orders:-(i)The Subject Mr SRK is declared to be a person suffering from a mental disorder as defined in the Mental Helath Act, Cap 248, Laws of Kenya.(ii)The 2nd Petitioner RNK be and is hereby appointed as the manager of the estate of the Subject Mr SRK(iii)This being a family matter each side will meet its own costs.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. MAUREEN A. ODEROJUDGE