[2023] KEHC 24896 (KLR)

In re VWG (A Person Suffering from Mental Disorder) (Miscellaneous Application 12 of 2023) [2023] KEHC 24896 (KLR) (Family) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24896 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application 12 of 2023

PM Nyaundi, J

October 27, 2023

IN THE MATER OF FGW TO BE APPOINTED AS GUARDIAN OVER THE AFFAIRS OF THE ESTATE OF VWG

In the matter of

FGW

Petitioner

Judgment

1. The Petitioner herein (FGW) a business man is the biological son of the subject VWG who has filed a Notice of dated 8th June, 2023 presented under Section 1A, 1B, 3A and 63 (c) and (e) of the Civil Procedure Act and Section 27 (1) (a) of the Mental Health Act, Cap 248 Laws of Kenya and he seeks that he be appointed legal guardian of VWG and manager of her estate which application is supported by Applicant’s Affidavit.

2. The subject VWG is sixty-four (64) years old. She is suffering from mental disorder (Alzheimers Dementia) and her rights are protected under the Mental Health Act Chapter 248 laws of Kenya.

3. That the subject herein does not have the mental capacity to sufficiently understand, absorb and retain information including advice and cannot make lucid decisions based on advice and information given. Subsequently, the subject has jumbled speech, hallucination, anxiety, memory loss, getting lost therefore reached a stage of mental deterioration.

4. The Petitioner states that the said VWG estate consists of LR. No Nairobi Block xx/xxxx Donholm Nairobi, Kayole Plot A3-257 Matopeni, Plot No B-xx, Pxx, Land Number xxxx, Plot No xx, MOO-VE Oxfordshire, Cherwell, UK.

5. Additional to the subject’s estate is bank accounts Standard Chartered Bank, Moi Avenue Branch Nairobi, Account Number xxxx, Equity Bank Ltd, Kenol Branch, Murang’a Account Number xxxx, Faulu Bank, Thika Branch Account Number 10210748076 and Co-operative Bank of Kenya, Thika Branch Account Number xxxx although being of the age of majority is unable to communicate and comprehend effectively, the subject is unable to make decision or act reasonably and also suffers memory lapses and thus unable to manage her affairs.

6. The Petitioner stated that the subject cannot manage her estate property and administer her properties matters, legal transactions and other dealings and affairs.

7. The subject is currently at home and needs rehabilitation, occupational therapy and special medication. VWG is incapable of taking care of herself and continues to receive medical treatment and attention by qualified nurses and ins under constant medical supervision.

8. The medical report presented by the Petitioner from Dr. Sylvia Mbugua consultant Neurologist at Aga Khan University Hospital Nairobi dated 5th June, 2023 who upon examination diagnosed the subject to have Alzheimer’s Dementia.

9. That the said VWG is suffering from a mental disorder under section 28 (6) of the mental Health Act.

10. That the said VWG does not have the mental capacity to sufficiently understand, absorb and retain information including advice and cannot make lucid decisions based on advice and information given. Further the subject is unable to manage her estate and administering her properties, matters, legal transactions therefore incapable of dealing with her estate and continues to receive medical treatment and attention by qualified nurse and is under constant medical supervision.

11. That it is only fair and just in the circumstance that the Petitioner be granted guardianship of the subject and further manage the subject’s affairs and estate.

12. That the Petitioner therefore humbly petition to be appointed as the manager and guardian of her estate.

13. That he shall take excellent care and lawfully manage the affairs of the subject in the very best interest of the subject and he will render an appropriate account in Court.

14. The other evidence is a report from Dr. Sylvia Mbugua consultant Neurologist at Aga Khan University Hospital Nairobi dated 5th June, 2023 alleging that she knew the subject Veronicah Wanjiku Gitau. She examined her and prepared a report where she noted that the subject has remained disoriented in time, place and person, is pleasantly forgetful and has both recent and remote memory loss. There is progressive cognitive decline reported by the son and daughter in- law. The Doctor further noted that the subject needs help with all her daily living activities including feeding, bathing and dressing.

15. Consequently, a letter from Donhold Savanna Location states that VWG has been suffering from Dementia for long and currently unable to make any decision.

16. It was also evidenced by this Court via online platform that the subject was not able to communicate.

Determination 17. From the foregoing, the issue(s) that are to be determined by the Court are: -1. Whether the Subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248. 2.Whether the Petitioner should be appointed as guardian to the Subject as well as manager of the estate of the Subject.

18. The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons. Section 26 1 (a) and (b) of the Act grants the Court powers to grant orders for management of the estate of subjects and for their guardianship by any near relatives or any suitable persons.

19. Section 28 (1) of the same Act provides for management of the subject's estate. The subject shall require funds to facilitate and ensure provision of medical care, nutrition, hygiene and upkeep. The Petitioner/Applicant will require to access funds from the subject's bank account Equity Bank of Kenya, funds from Standard Chartered Bank, Faulu Bank and Co-operative Bank for the purpose of maintaining the subject to the best possible medical condition. Under Section 26(3) of the Act it provides,“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 persons, including proper provision for his maintenance…”

20. From the evidence produced by the Petitioner, the Medical Report on record, it is not disputed that the Subject is suffering from a mental disorder; a medical condition envisaged under Section 26 of the Mental Health Act.

21. In light of the above, the Court holds that: -i.VWG (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.FGW is hereby appointed the legal guardians to Veronicah Wanjiku Gitau.iii.FGW is hereby appointed manager of the estate of VWG under Section 28 of Mental Health Act to manage her estate including LR. No Nairobi Block xx/xxxx Donholm Nairobi, Kayole Plot xxxx Matopeni, Plot No xxxx, Pxx, Land Number xxxx, Plot No xxxx, MOO-VE Oxfordshire, Cherwell, UK. And 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.FGW to access funds from the subject's Standard Chartered Bank, Moi Avenue Branch Nairobi, Account Number xxxx, Equity Bank Ltd, Kenol Branch, Murang’a Account Number xxxx, Faulu Bank, Thika Branch Account Number xxxx and Co-operative Bank of Kenya, Thika Branch Account Number xxxx.v.Pursuant to this appointment the Petitioner shall deliver to Court and the Public Trustee, within 6 months, an inventory of the property belonging VWGvi.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 his appointment as the manager of the estate of VWG.vii.As Manager of the Estate of VWG the Petitioner may dispose of the property only with the sanction of the court.viii.The matter will be mentioned before court on 18th January,2024 to confirm compliance.No order as to costsIt is so ordered

DELIVERED DATED SIGNED ON THE VIRTUAL PLATFORM IN NAIROBI ON 27TH OCTOBER, 2023. P. NYAUNDIJUDGEIn the presence of;Ms Somba h/b for Ms Mohammed for ApplicantSylvia Court Assistance