https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8024

In re SOA (Miscellaneous Application E018 of 2026) [2026] KEHC 8024 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 8024 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Application E018 of 2026 A Mabeya, J June 5, 2026 IN THE MATTER OF SECTION 26 OF THE MENTAL HEALTH ACT AND IN THE MATTER OF SOA - SUBJECT AND IN THE MATTER OF AN APPLICATION BY JGAC Ruling 1.By a Motion on Notice dated 10/2/2026, the applicant invoked sections 26 of the Mental Health Act, Cap 248 Laws of Kenya and sought a declaration that SOA is a person suffering from mental disorder, that he be made her legal guardian and that he be appointed to manage all his affairs. 2.The Motion was anchored on the grounds set out in its body as well as the supporting affidavit of JGAC sworn on the 21/1/2026. 3.The matter proceeded by way of viva voce evidence in which the applicant told the Court that he was the biological brother to the subject who also also attended Court on that day. That the subject was 74 years old who had mental illness in terms of the Medical Report dated 29/10/2025. 4.The said Medical Report from the Kisumu County Referral Hospital revealed that the subject had been an out-patient in that facility for well over a year as at the date of the report. That he was a known psychiatric patient with schizophrenic illness. That he presented signs of delusions, hallucinations and talking alone. 5.That due to the subject’s condition, he was not able to take care of his matters including defending his right to a property in which he was occupying. That he was facing eminent eviction and needed to take legal action to ward off the threats he was facing. That it was therefore imperative to grant the orders sought for the subject to be able to be protected. 6.The main issues for determination are Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248 and Whether the applicant should be appointed as guardian to the subject. 7.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. 8.Section 2 of the Act defines “person suffering from mental disorder” as follows: -“person suffering from mental disorder” means a person who has been found to be so suffering under this Act and includes a person diagnosed as psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse.” 9.Section 26 provides 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; andb.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 of the guardian of any such person.3.Where upon 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.” 10.According to the medical report referred to above, it is clear that the subject cannot comprehend his situation place and time. From the said report, it is apparent that the subject is suffering from a mental disorder in terms of section 2 of the Mental Act and further a medical condition contemplated under section 26 of the Act and is thus incapable of managing his own affairs. 11.Section 26 of the Mental Health Act gives the Court the power to make orders regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable but giving preference to a relative. 12.From the evidence on record, the course of the application is well supported as required under the law. It is therefore my considered view that the prayer for appointment of guardian is well grounded and merited. 13.Consequently, the Motion dated 10/2/2026 is allowed in the following terms: -a.That the subject SOA is hereby declared mentally incapacitated under Section 26 of the Mental Health Act.b.That the applicant, JGAC is hereby appointed the guardian of the subject to manage the subject’s affairs.It is hereby so ordered. DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE