[2013] KEHC 6266 (KLR)
The court found, based on uncontroverted medical evidence, that the respondent is in a permanent vegetative state, unable to manage his own affairs, and in need of constant care. The requirements of Section 26 of the Mental Health Act were satisfied, as the respondent's mental disorder is of such severity that it...
Source-derived case information.
- Citation
- [2013] KEHC 6266 (KLR)
- Parties
- Applicant: Paresh Jesang Shah; Respondent: Neel Paresh Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 107 of 2012
- Procedural Posture
- Miscellaneous Cause / Judgment
- Outcome
- petition allowed
- Judges
- DN Musyoka
- Legal Topics
- Mental Capacity, Guardianship, Estate Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paresh Jesang Shah
Applicant
Neel Paresh Shah
Respondent
Procedural Posture
Miscellaneous Cause / Judgment
Legal Issues
- 1 Whether the respondent suffers from a mental disorder of such severity as to require management of his affairs by another person.
- 2 Whether the petitioner should be appointed as manager and guardian of the respondent and his estate under Section 26 of the Mental Health Act.
Ratio Decidendi
The court found, based on uncontroverted medical evidence, that the respondent is in a permanent vegetative state, unable to manage his own affairs, and in need of constant care. The requirements of Section 26 of the Mental Health Act were satisfied, as the respondent's mental disorder is of such severity that it necessitates the appointment of a manager and guardian. The petitioner, being a suitable person and having provided sufficient evidence, was appointed as manager of the respondent's estate and guardian of his person until such time as the respondent is able to manage himself and his estate.
Court Disposition
petition allowed
Orders
- The petitioner is appointed manager of the estate of the respondent.
- The petitioner is appointed guardian of the respondent until such time as the respondent is able to manage himself and his estate.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
MISCELLENOUS CAUSE 107 OF 2012
PARESH JESANG SHAH................................................PETITIONER
VERSUS
NEEL PARESH SHAH..................................................RESPONDENT
JUDGMENT
The petition placed before me is dated 24th August 2012. It seeks the appointment of the petitioner as the manager of the estate or affairs of the respondent, The petition is premised on Section 26 of the Mental Health Act, Cap 248, Laws of Kenya.
Section 26 provides:-
“(1) The court may make orders
(a) for the management of the estate of any person suffering mental disorder; and
(b) for guardianship of any person suffering from mental disorder by any near relative or by any other suitable person”.
For orders to be made under Section 26 of the Mental Health Act, it must be demonstrated that the subject of the proceedings suffers from mental disorder which is so severe as to require that the person or his affairs be managed by another person.
From the material before me, it would appear that the respondent is a young adult born in 1986. He is not married and does not have children. He owns several assets, principally money sitting in named bank accounts and shares in named companies. He quite clearly has an estate requiring management.
There are medical records before me which show his mental disorder status. The medical report by Dr. Juzar Hooker, a neurologist at Kenyatta Hospital, is dated 9th October 2011. It shows that the subject suffered aneurismal subarachnoid hemorrhage which presented as prolonged status epilepticus. The other medical report is by Dr. J.J. Labuschagne, a neurosurgeon at Unitas Hospital, Centurion, South Africa, dated 23rd January 2012. It reveals that the subject had an anterior choroidal artery aneurysm, which was treated by a procedure which was successful. He however remained in a permanent vegetative state. He could open his eyes and was aware of his environment but could not perform any meaningful tasks. He is bed bound and therefore in need of constant supervision, and requiring PEG feeding and indwelling urinary catheter. He concludes that the patient's recovery would be very slow and that he will need lifelong care. These two reports are conclusive that the subject suffers from mental disorder of such degree as to require that he and his affairs be managed by others.
I am therefore satisfied that all the prerequisites for appointment of a manager and guardian of the subject and his affairs under Section 26 of the Mental Health Act have been met. I hereby appoint the petitioner manager of the estate of the respondent as well as the guardian of the said respondent until such time that the said respondent is able to manage himself and his estate. I also allow the petition in term of prayers (b) and (c).
DATED, SIGNED and DELIVERED AT NAIROBI THIS 27th DAY OF June 2013.
W.M. Musyoka
JUDGE