https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8909

In re SGT (Miscellaneous Civil Application E005 of 2020) [2026] KEHC 8909 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 8909 (KLR) Republic of Kenya In the High Court at Nakuru Miscellaneous Civil Application E005 of 2020 SM Mohochi, J June 24, 2026 IN THE MATTER OF THE MENTAL HEALTH ACT (CAP 248) LAWS OF KENYA SECTION 31. AND IN THE MATTER OF THE ESTATE OF SAMUEL GACHANJA THUO Between JGT Applicant and SKT 1st Respondent MMT 2nd Respondent Ruling 1.Before me is a Notice of Motion Application under certificate of Urgency dated 7th October, 2025 for the following reliefs:-a.Spentb.That, the appointment of SKT and MMT, as guardians of the subject and managers of the subject's estate be forthwith suspended pending hearing and determination of this application inter-partes.c.That, upon suspension of SKT and MMT, as guardians of the subject and managers of the subject's estate, the Applicant John Gichiri Thuo, be appointed as guardian of the subject and manager of the subject's estate.d.That, SKT and MMT, be compelled to render accounts for all monies received and disbursed in connection with the subjects property for the period running from 14th March, 2023 to date and more particularly rent proceeds collected from the following assets: -i.Residential and Commercial houses on Nakuru/Langalanga 1/xxx.ii.Residential and Commercial houses on Nakuru/Langalanga 1/xxx.iii.Residential and commercial premises on Kampi ya Moto/Menegai Block 1/xxx.iv.Residential and Commercial premises on Kampi ya Moto/Menegai Block 1/xxx.e.That, in the event of insufficient accounts as per prayer (4)above, SKT and MMT, as guardian of the subject and managers of the subject's estate be compelled to compensate the subject's estate with an amount equal to the misappropriated monies.f.That, upon hearing and determination of this application inter-partes, the appointment of SKT and MMT, as guardians of the subject and managers of the subject's estate be eventually cancelled.g.That, any such and/or further orders as may be necessary for the interest and welfare of the subject, Samuel Gachanja Thuo. The Applicants Case and Submissions 2.The Applicant's Notice of Motion dated 7th October 2025 seeks, inter alia, that this Honorable Court set-aside the orders issued on 3rd August 2023 appointing the Respondents as guardians and managers of the subject's person and estate, remove them from office and appoint the Applicant as the new guardian and manager. 3.The said application is premised on the grounds on the face of the application, the supporting affidavit and replying affidavit of John Gichiri Thuo and all annexures thereto. 4.Briefly stating, the Respondents applied to be the guardians of their father (the Subject herein) and managers of his estate. The Honorable Court via orders issued on 3rd August 2023 granted their prayers and they assumed office from 14th March, 2023. 5.The Applicant submits that the following three issues arise for determination:a.Whether the Respondents breached their fiduciary duties as guardians and managers;b.Whether this Honorable Court should set aside the orders issued on 3rd August 2023 appointing the Respondents and remove them from office;c.Whether the Applicant should be appointed as the new guardian of the Subject and manager of his estate. 6.With regards to the 1st issue as to whether the Respondents breached their fiduciary duties as guardians and managers, it is not in dispute that the Respondents were appointed as guardians and managers of the Subject's person and estate by the Honorable Court via Court order issued on 3rd August 2023. Such appointment was not honorary but rather created a strict fiduciary relationship akin to that of a trustee. 7.In Re VML [2015] eKLR the Court held that; "this order is informed by the provisions of Subsection (4) of Section 27 which states;(4)For the purposes of this Act and the Penal Code (Cap.63), a manager shall be deemed to be a trustee under any other law for the time being in force 8.This provision of the law creates a trust relationship between the petitioners and VML and thus the property vested in them in the circumstances of this petition can only be held on behalf of and for the benefit of the cestui que trust who in this case is VML."“Additionally, in OKK & MMK v JMK, PK & CWK [2019] KEHC 7949 (KLR) the Court was of the opinion hat guardians who paid themselves from the estate were in breach of their fiduciary duty and emphasized that guardians are appointed to manage the estate for the benefit of the subject, not to benefit themselves and found:that the said guardians have illegally and unlawfully misappropriated, apportioned and/or used the Estate funds for their own personal benefit and interest." 9.That, the Respondents engaged in frequent and unexplained withdrawals from both the Family Bank account and the Unaitas Sacco account, often multiple times per month, without rendering proper accounts. 10.The Bank statements annexed by both the Applicant and the Respondents demonstrate withdrawals far exceeding the alleged monthly expenditure of Kshs. 90,000. They have misappropriated over Kshs 2million for their personal gain and failed to provide sufficient accounts for all the monies received and disbursed in Connection with the subject's property for the period running from 14/03/2023. In the month of July 2025 alone they made cumulative withdrawals of Kshs. 1,560,000. 11.Additionally, receipts annexed by the Respondents, dating back to periods before their appointment as guardians, neither justify nor reconcile the substantial withdrawals made after their appointment. 12.They also misused the Subject's motor vehicle registration number KBB 112H by putting it to personal use and run it down to the extent of total breakdown and problematic to run. 13.In Sospeter Nyakundi Nyanga'u v Samuel Motanya Jeconiah [2020] KEHC 7738 (KLR) the Court affirmed that a manager occupies a fiduciary position and is under a strict obligation to account for all estate funds and held that:“As a trustee, the respondent was duty bound to account to the estate of Adams Oseko on the use of the loan proceeds. There is no indication of how much out of the contract sum of Kshs 15,918,619.50 was ever paid to the respondent (if at all) and neither, most importantly, is there any evidence of the application of the said loan for the benefit of Adams Oseko. He has breached the fiduciary duty bestowed on him. His continued role as the manager of the estate of Adams Oseko is no longer tenable." 14.That the Respondents' conduct in the present matter mirrors the misconduct condemned in the above authorities and cannot be sanitized by selective annexures or generalized claims of expenditure. The Applicant urges the Court to stand by this position, 15.On the 2nd issue as to whether this Court should set-aside the orders issued on 3rd August 2023 appointing the Respondents and remove them from office. 16.Section 31(1) of the Mental health Act empowers this Honorable Court to remove a guardian or manager for any sufficient cause and to appoint another fit person in their place:“31.Removal of manager(1)The Court may, on its own motion or upon application, for sufficient cause -(a)remove any manager appointed under this Part; and(b)may appoint any other person as manager.(2)In exercising its power under subsection (1), the Court may make such order as it considers necessary to ensure that the person removed as manager-(a)transfers the property under the person's care, and of which the person was a manager, to the new manager; and(b)accounts to the new manager for all money received or disbursed by the person in connection with the property. 17.Additionally, Section 56 of the Trustees Act grants the Court discretion to allow dealing with trust property. The said Section provides as follows:-“(1)Where, in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is in the opinion of the Court expedient, but cannot be effected by reason of the absence of a power for that purpose vested in the trustees by the trust instrument, if any, or by law, the Court may by order confer upon the trustees either generally or in any particular instance the necessary power for the purpose, on such terms, and subject to such provisions and conditions, if any, as the Court may think fit, and may direct in what manner any money authorized to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.(2)The Court may, from time to time, rescind or vary an order made under this section, or may make any new or further order.(3)An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust". 18.That, the Respondents' misappropriation of funds, failure to account and breach of trust constitute sufficient cause per see. This need not wait for the complete dissipation of the estate before intervening. 19.Reliance is placed upon the case of OKK & MMK v JMK (supra) the Court exercised its powers to remove guardians who had breached their fiduciary obligations, emphasizing that the welfare of the subject is paramount. 20.That the Respondents continued occupation of office poses a real and present risk to the subject's welfare and the preservation of the estate and is therefore untenable. 21.On the 3rd issue as to whether the Applicant should be appointed as the new guardian of the Subject and manager of his estate, the Applicant asserts that, the subject still suffers from dementia and ill health and needs to have someone continue taking care of his personal affairs and manage his estate. Upon removal of the Respondents, this Honorable Court is empowered to appoint a fit and proper person to ensure continuity in the care of the subject and the management of the estate. 22.The Applicant is the Subject's son and enjoys the support of all siblings, save the Respondents, who unanimously consent to his appointment as guardian and manager. 23.The Applicant humbly urges the Court to allow the Notice of Motion dated 7th October 2025 and grant the prayers sought therein and issue such further orders as may be necessary to protect the Subject and preserve the estate. Respondents Case 24.The Respondent opposed the application vide a Replying Affidavit sworn on 25th November, 2025 stating that this application is bad in law, pre-mature, incompetent, non-starter, frivolous, vexatious, and malicious and a gross abuse of the Court process thus legally unsustainable. We wish to rely on the said replying affidavit in its entirety. 25.The Respondents invite this Court to make a determination on the following issues: -a.Whether the Applicant is entitled to the orders sought in the Notice of Motion application dated on 7th October, 2025.b.Who should bear the costs of the suit? 26.With regards to the 1st issue the Respondents contends that the Applicant is undeserving of the orders sought, that it is not in dispute that the subject herein, Samuel Gachanja Thuo, is the registered owner of various residential and commercial properties forming part of his estate including:a.Residential and Commercial houses on Nakuru/Langalanga 1/xxx.b.Residential and Commercial houses on Nakuru/Langalanga 1/xxx.c.Residential and commercial premises on Kampi ya Moto/Menegai Block 1/xxx,d.Residential and Commercial premises on Kampi ya Moto/Menegai Block 1/xxx. 27.The Court after full consideration of all the parties' positions, appointed the Respondents herein SKT and MMT as the joint guardians and managers of the subject's persons and estate. 28.Pursuant to appointment, the Respondents went ahead to open an estate account with Family Bank A/C No. 019000058211 wherein all rent proceeds collected from the residential and commercial houses erected on title number Nakuru/Langalanga 1/xxx are deposited. 29.From the foregoing, we find it imperative to address specific limbs as hereunder: - 30.That the Applicant has not established sufficient legal grounds for removal of the duly appointed guardians and managers. 31.That the Respondents were appointed as guardian and manager of the estate of Samuel Gachanja Thuo with powers to assemble, collect, safeguard, protect from any destruction, wastage, disposal, alienation and interference of whatsoever nature all the properties (movable and immovable) of the said herein subject. 32.It is trite law that a removal of a guardian or a manager is a drastic remedy and cannot be granted whimsically. 33.The legal principle governing the removal of fiduciaries was well articulated in the case of Re Estate Of G.K.K (Deceased) [2017] eKLR where the Court held that: -“Removal of an administrator is only justified where there is proof of mismanagement, misconduct, failure to perform statutory duties or conduct prejudicial to the estate." 34.Similarly In The Matter Of The Estate Of Prisca Ong'ayo Nande (Deceased) [2020] eKLR, the Court emphasized that: -“Removal must be grounded on cogent evidence of maladministration and not mere suspicion or family disagreement." 35.That, the foregoing principles apply with equal force to guardians and managers appointed under Section 31 of the Mental Health Act. Such officers stand in a fiduciary position and can only be removed upon strict proof of breach of duty, mismanagement or conduct detrimental to the subject or the estate. 36.That, it is trite law that he who asserts must prove in line with Section 107(1) of the Evidence Act which provides that: -“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 37.In the case of Re Estate Of Gathungu (Deceased) [2015] held that:-“Mere allegations of mismanagement without concrete evidence cannot justify removal of a Court appointed administrator. The applicant must demonstrate actual loss, fraud or deliberate misconduct. " 38.Similarly, in In Re Estate of Julius Ndubi Jayan (Deceased) [2018] the Court emphasized that: -“Removal of an administrator is not meant to settle family disputes but to safeguard the estate. The Court must be satisfied that the estate is in danger of being wasted or mismanaged." 39.The Applicant has not demonstrated any of the following: Misappropriation of estate funds, fraudulent dealings, breach of fiduciary duty, neglect of the subject and any actual loss suffered by the estate. 40.That, in the Present matter, no audited report, bank statement, valuation report or independent evidence has been placed before this Court by the applicant to demonstrate wastage, loss or misappropriation. 41.That Section 109 of The Evidence Act provides that: -“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence unless it is provided by any law that the proof of the fact shall lie on any particular person.” 42.Further Section 112 of The Evidence Act provides that:“In civil proceedings, when any party facts is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.” 43.The Respondents have been properly managing the subject's property with care and without mismanagement of any fund collected from the said estate. 44.Following their lawful appointment, the Respondents have been managing various residential and commercial properties forming part of the subject’s estate including: -a.Nakuru/Langalanga 1/xxx developed with residential and commercial rental units generating an average monthly rental income of less than Kshs. 100,000, The records evidencing the said income were annexed to the Replying Affidavit marked sworn on 25th November, 2025 and marked as "S.K. T-II". The said rental proceeds are deposited in Family Bank A/C no.019000058211 which was opened by the Administrators.b.Nakuru/Langalanga 1/xxx developed with residential and commercial rental units generating an average monthly income of less than Kshs. 200,000, The records evidencing the said income were annexed to the Replying Affidavit marked sworn on 25th November, 2025 and marked as "S.K. T-III"c.Kampi ya Moto/Menegai Block 1/xxx developed with residential and commercial rental units generating an average monthly income of less than Kshs, 18,000. The records evidencing the said income were annexed to the Replying Affidavit marked sworn on 25th November, 2025 and marked as "S.K. T-IV"d.Kampi ya Moto/Menegai Block 1/xxx developed with residential and commercial rental units generating an average monthly income of less than Kshs. 20,000. The records evidencing the said income were annexed to the Replying Affidavit marked sworn on 25th November, 2025 and marked as "S.K. T-V". 45.That, for purposes of transparency and in full compliance with the Court's orders and upon deliberations at family level, the guardians duly opened a joint estate recurrent bank account at Unaitas Sacco Society Limited, A/C No. 10xxxxxx where the authorized signatories are Michael Thuo, Mary Nyambura and Peris Wangari. Given the joint signatory Structure of this account, it is factually impossible for the Respondents to freely withdraw monies for their own benefit" as alleged by the Applicant. The inclusion of the said sisters was intended at security and transparency by the Administrators to the family. All transactions require collective authorization thereby ensuring accountability and protection of the estate. 46.That, having regard to the Applicable law and evidence placed before this Court, it is evident that the Applicant has failed to discharge the legal and evidential burden required to warrant the drastic remedy of removal. 47.The jurisprudence cited herein clearly establishes that removal of a guardian or manager is not granted on the basis of suspicion, conjecture, family disagreement or unsubstantiated allegations. It must be founded upon cogent and credible evidence demonstrating mismanagement, misconduct, breach of fiduciary duty, actual loss, or conduct prejudicial to the estate or the subject. 48.In the present matter, no audited accounts, no bank statements demonstrating misappropriation, no valuation reports, and no independent evidence of loss or wastage have been tendered by the Applicant. The allegations remain bare assertions devoid of proof, contrary to Sections 107, 109 and 112 of the Evidence Act. 49.On the contrary, the Respondents have demonstrated transparency, accountability and diligence in the administration of the estate. They have provided rental records for all income-generating properties, disclosed the banking arrangements through which all rental proceeds are deposited, and shown that the estate accounts operate under a joint signatory structure, thereby safeguarding against unilateral withdrawals or misuse of funds. 50.That there is therefore no evidence that the estate is in danger of wastage, alienation or mismanagement. The Applicant has not established any breach of fiduciary duty nor any prejudice to the subject or the estate. 51.In the premises, we respectfully submit that the Applicant has not established sufficient legal grounds for removal of the duly appointed guardians and managers, and this Court ought to dismiss the application with costs. 52.On the 2nd issue as to whether the Applicants has approached this Court with clean hands the Respondent maintains that the Applicants hands are unclean and not deserving of an equitable relief. 53.That it is trite law that he who seeks equity must come with clean hands. 54.That the Applicant has at any time appealed nor sought review of the appointment orders issued on 3rd August, 2023 by Hon. Chemitei I. which therefore remain valid, binding and subsisting in full force and effect. 55.That the Applicant without the knowledge, authority or consent of the duly appointed guardians and managers of the estate and without leave of this Court, fraudulently and clandestinely opened a parallel bank account purporting the same to belong to the estate of the subject and proceeded to unlawfully divert the rental income thereto. 56.That in furtherance of his unlawful scheme, on 10th September, 2025, the Applicant unilaterally contracted and without any consultation or authority from the Respondents or this Court, appointed an estate agent known as Paygrade Africa Property Management Limited and thereafter instructed tenants to remit rent directly to the said agent on behalf of the family. 57.That, it is trite law that all Court orders must be obeyed by all parties, regardless of rank, until set aside by a Court of competent jurisdiction. 58.Reference is made to the case of Central Bank of Kenya & Another Vs Ratilal Automobiles Limited & Others Civ Appl. No Nairobi 247 of 2006, the Court of Appeal held that:-“Judicial power in Kenya vests in the Courts and other tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that Court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by Court of Law." 59.That in Shimmers Plaza Limited Vs National Bank of Kenya Limited [2015] eKLR, the Court of Appeal was categorical that:-“We reiterate here that Court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a Court order or not. For as Theodore Roosevelt, the 26th President of the United States of America once said:- "No man is above the law and no man is below it: nor do we ask any man's permission to obey it. Obedience to the law is demanded as a right; not as a favour." The Courts should not fold their hands helplessness and watch as their orders are disobeyed with impunity left, right and Centre. This would amount to abdication of our sacrosanct duty best owed on us by the constitution. The dignity and authority of the Court must be protected and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy...." 60.That, similarly in the case of Awadh vs Marumbu (NO.2) NO. 53 of 2004 [2004] KLR 458, the Court held that: -“It must be remembered that Court orders must be obeyed at all times in order to maintain the rule and good order. This of course means that the authority and dignity of our Courts must be upheld at all times and this differentiates civilized societies from those applying the law of the jungle at times referred to as banana republics. It is the duty of the Court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with the approved contemnors." 61.The Respondents echo the sentiments of the Court in the above cited authorities and pray that the Court be guided therewith. 62.That, from the foregoing, it is manifest that the Applicant has deliberately and knowingly acted in direct contravention of valid and subsisting Court orders issued on 3rd August, 2023 by Hon. Chemitei J., which orders have neither been appealed against nor reviewed and therefore remain binding upon all parties. 63.Instead of pursuing lawful avenues available to him, the Applicant chose to unilaterally undermine the authority of this Honourable Court by:a.Opening a parallel bank account without authority;b.Diverting rental income from the estate;c.Appointing an estate agent without consultation or leave of Court,d.Issuing instructions to tenants in disregard of the duly appointed guardians. 64.That, such conduct is not only irregular but amounts to calculated defiance of Court orders and an affront to the rule of law. 65.The jurisprudence cited hereinabove is unequivocal: Court orders must be obeyed at all times unless and until they are set aside. Obedience if a Court order is mandatory, not optional. It is instructive to equally note that, the Applicant resides in the United States thus appears to not appreciate the input and vulnerability of the subject herein. 66.That, party who deliberately disobeys Court orders cannot turn around and seek equitable relief from the same Court whose authority he has scorned. Equity does not aid the indolent, the fraudulent, or the contemnor. 67.That the doctrine of clean hands is not a mere technicality; it is a fundamental equitable principle designed to protect the integrity of judicial proceedings. The Applicant's conduct demonstrates bad faith, deliberate interference with estate administration, and a blatant disregard for judicial authority. 68.In the premises, the Respondent submit that, the Applicant has moved the Court with unclean hands and is therefore undeserving of any equitable or discretionary relief sought in the Notice of Motion dated 17th October, 2025, 69.That it is trite law that costs follow the event and in Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2014], the Court of Appeal affirmed that: -“While costs are discretionary, they ordinarily follow the event unless good reasons exist otherwise." 70.The Respondent prays that the Applicant be personally condemned to bear the costs of this suit. Analysis and Determination 71.I am unpersuaded of the entire Application and the effectiveness of a manager domiciled abroad. 72.The Applicant has not proven fraud in fact the Respondents have demonstrated satisfactory prudence in undertaking their duty including creating a bank account with more siblings drawn from the Subjects siblings as a safety valve against abuse. 73.The essence of these proceeding are for the best interests of the subject, his health needs with the element of management of his estate being secondary. 74.This Court equally finds the Applicant to be seeking equitabler relief with unclean hands with the primary purpose being actual control of the vast estate to which the Court views as selfish and actions that might further push a wedge in this family. 75.The Subjects health condition and fragility is indicative of his limited life hence the drawn daggers in anticipation of a succession battle amongst the subject’s siblings. 76.The Court beseeches reason amongst this family to avoid falling into a bottomless long drawn litigation at a great risk of dissipating the subject’s estate and further drive a wedge of disunity in this family 77.I have no hesitation in finding the Application 17th October, 2025 to be of no merit and the same is accordingly dismissed. 78.However, the Court shall make the following resultant orders;a.The Matter is hereby referred to the AJS where the Applicant, the Respondent and all other members of the Subject Family shall undertake a reconciliation exercise to iron out any simmering differences emerging and a report thereof be filed in Court after sixty days from today.b.The parties shall bear their own costs with the costs of defending this Application being drawn from the estate of the subject as an expense.c.The matter shall be mentioned after 60 days to confirm the outcome of the reconciliation exercise SIGNED, DATED AND DELIVERED IN VIRTUALLY AT BUSIAON THIS 24TH JUNE 2026............................................MOHOCHI S.M.JUDGE