A S M v O A G [2017] KEELC 2035 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC MISC. APPL. NO. 23 OF 2017

A S M ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PATIENT

VERSUS

O A G::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER

JUDGMENT

This petition is dated 27th January 2016 and is brought under sections 26 (1) (a), (b) & (3), 27 (2) and 28 (1) of The Mental Health Act seeking the following orders;

1. That this honourable court be pleased to declare the patient as a person suffering from mental illness as defined under the Mental Health Act, CAP 248 of the Laws of Kenya.

2. That the petitioner be appointed by this honourable court as the guardian and manager of the estate of the patient.

3. That this honourable court makes provision for the maintenance of the patient from the proceeds of his estate.

4. That this honourable court be pleased to direct that the petitioner be paid an allowance as the guardian and manager of the estate of the patient.

5. That tenants in occupation of L.R. NO. KAKAMEGA/BLOCK/[…] which is registered in the name of the patient be directed to deposit their monthly rent in a special account pending the determination of this petition.

This petition is based on the affidavit of the petitioner and the grounds therein. The petitioner submitted that he was a distant relative of the patient belonging to the same clan. That the patient is suffering from mental insanity and therefore incapable to managing his businesses and is currently being cared for by relatives in Eldama Ravine (OAG1 is a copy of the medical report).That the petitioner has been acting as an agent and representative of the patient since 2011 and was also nominated by relative of the patient. That the patient is the registered proprietor of L.R. NO. KAKAMEGA/BLOCK/[…]  which is a commercial building situated in Kakamega town. That there are some people who are collecting rent from the property of the patient and are intending to transfer and/or take possession of his properties illegally.  The case in point is Succession Cause No. 198 of 2015 Kakamega High Court, in order to grab other properties left by late S M the father of the patient (Annexture OAG3).That this commercial building of the patient is occupied by tenants and it is only fair and just that the monthly rent be deposited in a special account or the office of public trustee or the court until this honourable court makes final orders in this matter.

F M swore the replying affidavit on his own behalf and on behalf of the family members related to A S M as an interested party. That his father M I M– Deceased was a first cousin to A S M. That the other immediate first cousin is A I who stays abroad but with close links with the family. That the applicant herein is not related to them in any way. That on 5th March 1997 A S M granted legal authority to his father, M I M now deceased to be in charge of his responsibilities including managing and transacting all affairs on KAKAMEGA BLOCK […].  (Annexed and marked FM 1 is a copy of the General Power of Attorney). That his father always took good care of the properties of the deceased and in particular KAKAMEGA BLOC […], whereby he paid levies, collected rent and kept the premises in good habitable conditions until when he passed on in 2015. That on 30th March 2012, M I M leased the said property to one S A H for a period of 5 years (Annexed and marked FM 2 is a copy of the leave agreement). That after his death, the family sat down after his burial and appointed him to take over his father’s duties regarding managing the Kakamega property being KAKAMEGA BLOC […]. That since A S M had become mentally incapacitated, he was not in a position to grant the said authority to him and this was instead done by the family on his behalf (Annexed herewith and marked FM 3 is a copy of the agreement). That the petitioner has at no single time managed the properties of A S M as alleged. The family members do not know the petitioner and they have never appointed him to manage the said premises in the 2011 as alleged. That the petitioner is related to the current tenant – S A H being cousins. That the said S A H pays rent on time and the same is used in maintaining A S M as per the family agreement. That the petitioner is malicious and the applicant’s intention is to unjustifiably enrich himself. That there is a pending suit between the petitioner and the current tenant being Kakamega Civil Appeal Number 135 of 2014 which was to come up for hearing on 10th February 2016 whereby the petitioner is seeking for a share of the rent. That the petitioner should further be stopped from interfering with the quite possession of the premises by the tenants as this amounts to breach of the lease.

This court has carefully considered the petitioner’s and the interested party’s submission. It is not in dispute that the patient A S M suffers from a mental illness and a medical report has been produced to that effect. From the evidence produced by the petitioner, the medical report on record, it is not disputed that the patient is suffering from a mental disorder, a medical condition contemplated under section 26 of the Mental Health Act. It has also been established that the petitioner is not a relative to the patient. F M swore the replying affidavit on his own behalf and on behalf of the family members related to A S M as an interested party. That his father M I M– Deceased was a first cousin to A S M. He avers that the applicant herein is not related to them in any way. That on 5th March 1997 A S M granted legal authority to his father, M I M– Deceased to be in charge of all his responsibilities including managing and transacting all affairs on KAKAMEGA BLOCK […].  (Annexed and marked FM 1 is a copy of the General Power of Attorney). That his father always took good care of the properties of the deceased and in particular KAKAMEGA BLOC […], whereby he paid levies, collected rent and kept the premises in good habitable conditions until when he passed on in 2015. That on 30th March 2012, M I M leased the said property to one S A H for a period of 5 years (Annexed and marked FM 2 is a copy of the leave agreement).That the petitioner is not known to the family.

Section 26 of the Mental Health Act Cap 248 of the laws of Kenya states that;

“The court may make orders –

a. for the management of the estate of any person suffering from mental disorder; and

b. for the guardianship of any person suffering from mental disorder by nay near relative or by any other suitable person”.

The interested party has submitted that, the petitioner has at no single time managed the properties of A S M as alleged. The family members do not know the petitioner and they have never appointed him to manage the said premises in the 2011 as alleged. The petitioner admits he is not a relative and that they come from the same clan with the patient. I find the petitioner has not proved his relationship with the patient and if he ever managed the property in question. I find he has no locus standito be appointed a guardian especially when the patient’s relatives exist and are living with him. It is the interested party’s submission that his father had been granted a power of attorney to manage the patient’s estate. That after the death of his father, the family sat down after his burial and appointed him to take over his father’s duties regarding managing the Kakamega property being KAKAMEGA BLOC […]. That since Abdi Said Musa had become mentally incapacitated, he was not in a position to grant the said authority to him and this was instead done by the family on his behalf (Annexed herewith and marked FM 3 is a copy of the agreement).I find that the petition has no merit and is dismissed with costs. However, the interested party is advised to take the appropriate steps to legalize the issue of guardianship of the patient.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 27TH DAY OF JULY 2017.

N. A. MATHEKA

JUDGE