[2020] KEHC 10226 (KLR)
The court found that there was insufficient and unconvincing medical evidence to establish that MMW suffered from a mental disorder or illness that rendered her incapable of managing her affairs. The medical reports presented were contested, and the doctors who testified were not psychiatrists nor did they...
Source-derived case information.
- Citation
- [2020] KEHC 10226 (KLR)
- Parties
- Applicant: SNW; Applicant: GGW; Applicant: MGG; Respondent: JKW; Respondent: SI
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 156 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- petition dismissed
- Judges
- AO Muchelule
- Legal Topics
- Mental Capacity, Guardianship, Elderly Persons, Medical Evidence, Jurisdiction, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
SNW
Applicant
GGW
Applicant
MGG
Applicant
JKW
Respondent
SI
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the subject, MMW, suffers from a mental disorder or illness rendering her incapable of managing her affairs.
- 2 Whether the petitioners should be appointed as guardians of MMW under the Mental Health Act.
- 3 Whether the High Court has jurisdiction to determine disputes regarding alleged fraudulent subdivision and transfer of land parcels under the Mental Health Act.
Ratio Decidendi
The court found that there was insufficient and unconvincing medical evidence to establish that MMW suffered from a mental disorder or illness that rendered her incapable of managing her affairs. The medical reports presented were contested, and the doctors who testified were not psychiatrists nor did they demonstrate expertise in psychiatric assessment. Consequently, the petitioners failed to discharge the burden of proof required for appointment of guardians under the Mental Health Act. Additionally, the court held that it lacked jurisdiction to adjudicate the land dispute aspects of the petition, as such matters are reserved for the Environment and Land Court. As a result, the petition...
Court Disposition
petition dismissed
Orders
- The petition and all related applications are dismissed with costs.
- Prayers relating to land parcels and motions dated 27th September 2017 and 14th November 2018 are struck out as incompetent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. APPL. NO. 156 OF 2014
IN THE MATTER OF THE APPLICATION PURSUANT TO SECTION 26(1)(B) OF THE MENTAL HEALTH ACT FOR THE APPOINTMENT OF GUARDIANS OF MS. MMW, AN ALLEGED INCAPACITATED PERSON
SNW..............................................1ST PETITIONER
GGW............................................2ND PETITIONER
MGG............................................3RD PETITIONER
VERSUS
JKW..........................................1ST RESPONDENT
SI .............................................2ND RESPONDENT
RULING
1. Before this court a petition was filed by the petitioners SNW, MGG and GGW under the provisions of the Mental Health Act (Cap 248)to determine whether their mother MMW has mental disorder and illness and therefore not able to manage her own affairs. The petition sought that the petitioners be appointed as guardians to manage her affairs if she is declared to be a mental patient.
2. The subject owned [particulars withheld]. It was alleged in the petition that the subject’s two children (the respondents JKW and SI) had unlawfully and fraudulently subdivided her land into various parcels and had transferred to themselves some of the subdivisions. The petition sought temporary and mandatory injunctions in respect of all the subdivisions and for an order that the respondents do return the subdivision titles to the Lands Registrar for revocation.
3. The respondents defended the petition. They stated that although their mother was elderly at age 93 she was neither senile nor mentally incapacitated. They questioned the authenticity of the medical reports that the petitioners had relied upon. Lastly, they stated that their mother had gone to the Land Control Board and petitioned the subdivision of her parcel of land.
4. In motions dated 27th September 2017 and 14th November 2018 the petitioners sought orders to conserve the land parcels and to restrain the respondents from selling, disposing, leasing or in any manner dealing with the parcels. The respondents opposed the application by filing grounds of opposition in which they alleged that the applications were incompetent, had been brought late and that they were misconceived.
5. Whether or not land parcel [particulars withheld] was illegally and/or fraudulently subdivided and some of the portions appropriated by the respondents are complaints that cannot be heard and determined under any of the provisions of the Mental Health Act. The complaints belong to the jurisdiction of the Environment and Land Court created under Articles 162(2)(b)and165(5)(b) of the Constitution and section 13 of the Environment and Land Act. This court does not have jurisdiction to hear and determine the dispute in the petition relating to the respondents’ alleged dealing the subject’s parcels of land. It follows that the prayers in the petition dated 1st September 2014 relating to the parcels of land and the motions dated 27th September 2017 and 14th November 2018 are incompetent and are struck out.
6. Regarding whether or not the subject suffers from mental disorder or illness to the extent that she is unable or incapable of managing her affairs, the court has jurisdiction under section 26(3) of the Act to make an inquiry to establish the extent of her mental disorder.
7. Justice M. Mugai conducted an inquiry and received oral evidence and observed that the medical report on which the petitioners relied was contested. The medical report relied on in the petition stated that the subject had been examined by a medical doctor on 25th July 2014 at Kiambu District Hospital and found to have senile dementia owing to old age, and that she could not recall or make an informed decision. The report had been signed by Dr. S. Karianki of the Hospital. The Doctor was not made available to testify to support his report. Instead the petitioners called Dr. Kevin Nguringa (a general practitioner at the Hospital) to produce the report. Dr Kevin Nguringa stated that he had himself examined the lady on 18th April 2016 and found her senile and suffering from dementia. When the Doctor was cross-examined it turned out that he worked at Accident and Emergency Department of the Hospital, and not in the Psychiatry Department. The Doctor did not say he was a psychiatrist or that he had been managing psychiatric patients. There was no evidence that Dr. S. Karianki was a psychiatrist.
8. To determine that a person has mental disorder requires irrefutable medical evidence. This is because a person who suffers mental disorder loses the capacity to sue or to enter into any contract. He cannot manage his life.
9. It is my finding that there was insufficient evidence placed before the court to enable the finding that the lady in question had any mental disorder or illness, or had such disorder or illness that she was incapable of managing her life and property. That result is that the petition has no merits.
10. I dismiss the petition and applications with costs.
DATED and DELIVERED electronically at NAIROBI this 27TH day of OCTOBER 2020.
A.O. MUCHELULE
JUDGE