Echimu Simon Peter vs Egwau John Robert (Miscellaneous Cause No. 4 of 2022) [2022] UGHC 97 (18 October 2022)

The Republic of Uganda

In The High Court of Uganda Holden at Soroti

In The Matter of the Mental Health Act No. 15 of 2019

And

In The Matter of Mzee Echimu Charles t/a Egwau son of Elabu

And

In The Matter of an Application by Echimu Simon Peter (son)

To Manage the Affairs of the said Mzee Echimu Charles t/a Egwau s/o Elabu

Miscellaneous Cause No. 04 of 2022

Echimu Simon Peter ::::::::::::::::::::::::::::::::::: 15

Versus

1. Egwau John Robert

**.....................................** 2. Ewechu Bernard

$\overline{5}$

$10$

Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling.

1. Background:

This application was brought by way of notice of motion under section $60(1)$ & (3) (b) of the Mental Health Act, section 98 of the Civil Procedure Act, section 33 of the Judicature Act, order 32 rules 1(1), 4, 15, 19 & 23 and Order 52 rules 1&2 of the Civil Procedure Rules for orders that;

a) The applicant be appointed to manage the affairs of the said Mzee Echimu Charles t/a Egwau son of Elabu.

$[1]$

- b) The applicant be granted leave to act as the next friend of the said Mzee Echimu Charles t/a Egwau son of Elabu for purposes of all legal actions/suits where the said Mzee Echimu Charles t/a Egwau son of Elabu is a party and or has an interest including to institute law suits for and on behalf of his father. - c) Costs of the application be provided for.

The application is supported by grounds which are contained in the body of the motion and an affidavit deposed by the applicant dated 21st February 2022.

Earlier on the applicant had filed Misc. Cause 22 of 2021 ex parte for orders that he be appointed to manage the affairs of the respondent (Mzee Echimu Charles t/a Egwau s/o Elabu) but upon consideration of the same the court found that it contained procedural improprieties which were outside the proper rules and directed that a new application be filed *inter* partes which complies with the appropriate rules hence this application,

Misc. Cause 004 of 2022. 20

When this matter was brought to the attention of this court on ${\bf 14}^{\rm th}$ March, 2022, counsel for the respondents sought to raise preliminary points of law with regard to firstly, the application being incompetent for being filed prematurely without fulfilling legal requirements and secondly, on alleged incurably defective affidavit of Echimu Simon Peter. Given this position, this Honourable Court gave directions for counsels representing parties to file submissions in order for the same to be considered and disposed of before dealing with the head application.

On the 27<sup>th</sup> April, 2022 a ruling was delivered in which the court upon thorough consideration of pleadings of the parties and taking into account the affidavits sworn for and against the application ruled that all the averred matters were contentious requiring each party to be given the

$\mathsf{S}$

opportunity to properly prosecute and or defend the application. Accordingly, the preliminary points were overruled with directions that $\mathsf{S}$ the application be heard on its own merits and determined judiciously.

Upon the decision which overruled the preliminary objections being made and on the same date, counsel for the respondents sought leave to crossexamine the applicant on his affidavit. Likewise, counsel for the applicant similarly sought to cross examine the respondent on his affidavit. These requests were allowed on condition that parties restricted themselves to

averments of the parties herein on record.

During cross-examination of the applicant informed court that he did not have a trading certificate in the names Mzee Echimu Charles t/a Egwau s/o Elabu but that he had a certificate of renewal of a business name of 15 Egwau s/o Elabu which was registered in registered in 1972 when his father begun business in Soroti but that the certificate of registration Egwau Elabu Family Enterprise was registered in 2019 by him though the date of commencement of the business was $1^{\rm st}$ January, 1972 by which date 20

he was not yet borne.

The applicant continued to state that the business name registered is not the same as Echimu Charles t/a Egwau s/o Elabu and that there was no registration certificate in that name.

He further stated that from 1994 up to 2022 the affairs of his father had been handled by all his children who are his issues with his wife called 25 Ruth Achan Echimu.

The applicant further told court that he was the one who had requested for a medical report from Soroti Regional Referral Hospital on the basis that before that request Mzee Echimu had previously been admitted in the

said Hospital although he admitted that he did not carry out any mental assessment of Mzee Echimu as recommended by a psychiatrist. $\mathsf{S}$

The applicant similarly admitted that the proprietor of Plot 17 Gweri Road was Egwau John Robert and that the customary land owned by his father in Obutei Arapai was occupied by his children and partly by his second wife who left him 20 years ago but was now staying on the land and occupying about 2 to 3 acres though his own mother was allocated the main portion of the land measuring about 7 acres which she and her children occupy.

The applicant, however, on his own part told court that he was staying at Orwadai ward, Eastern division, Soroti city to which he had shifted from Mbale Cell, Pamba Ward Western Division, Soroti city while Mzee Echimu 15 was resident of plot 17 Gweri Road.

He further admitted that in some correspondences he used the name Echimu Charles t/a Egwau s/o Elabu which was an error. That Inwaku Florence, Eegu Samuel and himself gave a background on Mzee's illness. He stated that the request for the medical report was made on $08/02/2021$ and the treatment report on 21/01/2021, the request was made after the treatment and the report made on $10/02/2021$ . He did not have any court order to make the request and Mzee Echimu had never been declared by court as a person of unsound mind.

The applicant continued to state that the family meeting where Mzee's health and the family business name were discussed only involved the children of Mzee's first wife who had been managing the affairs of Mzee Echimu but Egwau John Robert and Samson Ewechu did not attend. He also admitted of never inviting his stepmother and her children to attend the various family meetings.

During re-examination, the applicant admitted that most of the so called $\mathsf{S}$ family meetings were majorly convened verbally and hat the business of Mzee Echimu Charles began in 1972 before he was born but that some of decided to maintain the same business name for which he signed an application for the registration of the business because his father was of unsound mind. $10$

After cross-examination of the applicant, counsel for the respondent sought leave to cross-examine Dr. Emoit John Ekol, the Principal Psychiatric Officer who authored the medical report dated 10/02/2021. Although counsel for the applicant objected, court allowed the said cross examination in the interest of justice. Accordingly, Dr. Emoit John Ekol, 15 the Principal Psychiatric Officer who authored the medical report dated $10/02/2021$ was called to court to be cross examined.

During cross-examination of Dr Emoit John Michael he told court that he received a request from the Secretary, Records Office Soroti Regional Referral Hospital dated 08/02/2021 with a note and signature from the 20 director of the hospital to carry out an assessment though the copy which the parties had did not have such an authorisation and a receipt stamp. He stated that the patient was an involuntary one when he was brought to the hospital and that such patients upon receipt by the psychiatrist is received by a nurse, a file is opened, hospital number availed and the 25 patient is taken to a clinician on duty for assessment and diagnosis.

That, thereafter, the clinician would then decide to treat the patient as an outpatient or admit as an inpatient. That with in-patient admission, a detailed history of the patient is taken and then patient is then put on treatment with every week on Wednesday, a team of psychiatrists convening for a ward round where each patient is reviewed. He told court

that for Mzee Echimu he personally assessed the patient by asking $\mathsf{S}$ questions from him and making thereafter a report.

That the patient told him that he was married to two wives but that one had passed on and the other separated due to his poor mental health.

Dr Emoit John Michael further told court that Mzee Echimu was readmitted on 28/01/2021 and that on that day an officer called Okoboi 10 John Robert was the one who conducted an assessment of him but he was not sure as to how long the patient was admitted.

That the patient told him that he was reported to hospital by his wife but he later came to learn that the one who reported him was Stella Adong, his daughter and not his wife.

Dr Emoit John Michael told carried out a mental assessment of the patient when he was stable but could not make a diagnosis as patterns of symptoms keep on changing according to the assessment.

He stated that he did not carry out perception, cognition and thoughts assessments of the patient because he was severely unstable but 20 recommended that the same be carried out when stable.

He admitted that though at Soroti Regional Referral Hospital there was no psychiatric doctor, he did carry the assessment as the most senior psychiatrist at the hospital. He told court that the patient was not examined by a psychiatric medical doctor but managed by principal officer as most regional referral hospitals in Uganda did not have such officers as it was a deployment issue by the Ministry of Health.

During re-examination, Dr Emoit John Michael told court that his document is not received and annotated as the Hospital only receives that of the patient.

The respondents were not cross-examined as counsel for the applicant $\mathsf{S}$ dropped cross-examination and instead sought this courts directions on submissions.

The parties complied with court directions and filed submissions which are on court record.

Submissions: $10$

> Counsel for the applicant M/s Engoru, Mutebi Advocates raised two preliminary issues in his submissions. The first being that the affidavit of the 2<sup>nd</sup> respondent cannot be maintained in law since it is a re-gurgitation of the evidence of the 1<sup>st</sup> respondent on all fronts. Secondly, that court awards the said Emoit John Ekol the costs of travel for the two times he

15 travelled to court at the instance of the respondents i.e. on 7/8 June 2022 and 22/23 August 2022.

With regard to the first preliminary issues counsel submitted that the affidavit of the 2<sup>nd</sup> respondent deposed on the 24<sup>th</sup> of February, 2022 and

filed on the same day was irrelevant and unnecessarily repetitive when 20 compared to the one of the 1st respondent and so he prayed that it be struck out with costs.

Counsel relied on Ongwen and Anor vs Ocaya Micheal CA No. 012 of $2017$ and section 135 of the Evidence Act to support this submission.

- With respect to the second preliminary issue, counsel submitted that the 25 attendance in court by Emoit John Ekol was at the instance of the respondents and it was on record that he was transferred to Butabika National Referral Mental Hospital and on both occasions when he came to court he had to travel from Kampala a day before. - Counsel prayed that the out-of-pocket expenses, fuel refund and 30 accommodation of up to Ugx. 2,500,000/= (Uganda shillings Two Million, Five Hundred Thousand Only) be paid to the witness by the $\mathsf{S}$ respondents.

On the substance of the application counsel submitted that the application which has been presented under section 60 of the Mental Health Act determines that a person with mental illness cannot administer their estate, the court grants the reliefs under section 61 and 62 which make direct reference to section 60.

That the affidavits of the respondents sought to invoke section 24 (7) of the Mental Health Act yet the application was brought under section 60 (3) (b) with section $24(7)$ being inapplicable to the current application and has been wrongly cited.

Counsel submitted that the subject matter under section 24 is separate and distinct from the subject matter in sections 60 & 62 under which the current application has been brought and so accordingly counsel invited court to find that Annexure A3- the medical report by Emoit John Ekol dated 10/02/2021 had been properly made and it was in

line with the law.

Counsel further submitted that the medical report is evidence of Mzee Echimu's medical condition and it has not been controverted and Mr. Emoit in his testimony maintained that Mzee Echimu was a person of unsound mind.

That under section **60 (3) (b) of the Mental Health Act** the applicant need not attach a court order as suggested by the respondents but rather provide evidence that on account of the person's mental condition they are incapable of managing their own affairs and as such there is need for court, on application by a relative or a concerned person, to appoint 30 someone to manage the affairs of that other person which is what this


application is centrally about. Counsel additionally submitted that when a $\mathsf{S}$ court is presented with an application under section 60(3)(b) of the **Mental Health Act** it makes an assessment under section 60 (6) of the Act based on the evidence before it.

Counsel submitted that on the strength of the medical report the court should find that Mr. Echimu Charles is a person of unsound mind and hence not capable of managing his own affairs and subsequently grant orders sought in the application.

Counsel additionally submitted that the orders sought place the applicant in a fiduciary relationship with his father and the averments by the respondents and other family members in opposition of the application that the 1<sup>st</sup> respondent is the proprietor of plot 17 Gweri Road put them in a position of severe conflict of interest against their father which interests this application seeks to preserve.

Counsel contended that the clear conflict of interest and opposition by the respondents is only an advancement of personal interests and he prayed 20 that this court finds that there is no opposition to this application.

Counsel finally submitted that the centrality of this application is evidence of Mzee Echimu's mental condition and his incapacity to manage his own affairs and not about who owns which property and prayed that this application and orders sought be granted.

In reply counsel for the respondents' M/s Amodoi Associated Advocates submitted first on the preliminary issues raise by counsel for the applicant before submitting on the legality of the application.

Pertaining to the first preliminary issue counsel submitted that the 2<sup>nd</sup> respondent rightfully filed his affidavit in reply as required by the law. That on the authority of Order 19 rule 3(1) of the Civil Procedure Rules the

affidavit of the $2^{nd}$ respondent is confined to such facts as his is able on his $\mathsf{S}$ own knowledge to prove and it is trite that parties proceed on the basis of their pleadings.

## See: Interfreight Forwarders vs East African Development Bank (1990-1994) EA 117 page 125.

Counsel further submitted that the effect of not filing an affidavit where $10$ the law requires one is a fatal omission.

## See: Agro Supplier Ltd Vs Uganda Development Bank HCCS $379f2005$ .

Counsel submitted that the authorities cited by counsel for the applicant were inapplicable for even that of Ongwen and Anor Vs Ocaya 15 Michael supra is distinguishable from the present case as it was concerned with witness statements vide Order 18 rule 4 of the Civil Procedure Rules and witness disqualification but not affidavit evidence. He prayed court overrules the prayer sought in respect of the 2<sup>nd</sup> respondent's affidavit. 20

In regard to the transport refund to Emoit counsel submitted that his cross examination was in the interest of justice as court was able to get issues in detail that the applicant never wanted to be brought to the court's attention.

He further submitted that under the cited provision of Order 19 rule 2(1) 25 & (2) of the CPR court is invited to find and hold that the prayers advanced by counsel for the applicant abide the outcome of the ruling taking due consideration of the nature of the application.

With regard to the main application counsel for the respondents submitted that he did not concur with the reasoning of the applicants on the law under which this application was brought. He submitted that no

court has ever made a determination that the Echimu Charles is unable to $\mathsf{S}$ manage his own affairs and during cross-examination, this fact was clearly brought out by Echimu Charles who authored the medical report and clearly stated that Mzee Echimu was an involuntary patient whose perception, cognition and thoughts were never assessed and his mental status assessment was never carried out. 10

Basing on the foregoing, counsel invited court to make a finding on the following issues;

- Whether the psychiatric assessment report for Echimu Charles $(i)$ IP No. 338 of 2021 dated 10/02/2021 was made under section 24 of the Mental Health Act 2019 or section 60 of the Mental Health Act? - Whether the legal procedures envisaged in section 24 of the $(ii)$ Mental Health Act 2019 or section 60 of the Mental Health Act were fulfilled? - (iii) Whether the Applicant filed this application in the interest of Echimu Charles or to satisfy his personal interest? - Remedies available. $(iv)$

On issue (i) counsel submitted that the psychiatric assessment report that the applicant is solely relying upon was made under section 24 of the Mental Health Act which makes provision for involuntary assessment, admission and treatment.

Counsel relied on Principle 4 of the Principles for the protection of persons with mental illness and improvement of mental health care and section 24 of the Mental Health Act. Counsel further submitted that he is alive to the fact that order 32 rule 15 of the CPR enables the application of rules 1-14 of Order 32 where a person is adjudged to be of unsound mind or found by court on inquiry to be incapable of protecting his interest, however, in

$1.5$

the present case no inquiry has ever been carried out in relation to the $\mathsf{S}$ alleged infirmity of Echimu Charles.

In making this assertion, Counsel relied on Misc. Cause 026 of 2017, in the matter of an application adjudging Khalid Latiff a person of unsound mind and Misc. Cause 003/2018 in a matter of an inquiry into the suspected unsound mind of Amanyire

Mark.

On issue (ii) counsel submitted that the detailed procedure under section 24 and 60 of the Mental Health Act were never fulfilled. Counsel based this further on principle 5 of the Principles for the protection of persons with mental illness and improvement of mental health care.

Counsel relying on Misc. Cause No. 18 of 2015 relating to the estate of Kiggundu James a person of unsound mind, submitted that that the report marked annexure A3 does not amount to court adjudication that Echimu Charles is a person of unsound mind and was issued in contravention of the law with the sole purpose of opening up Echimu Charles to fraudulent people like the applicant who is advancing his personal selfish interest.

Counsel additionally submitted that the medical report is full of contradictions and inconsistencies given the fact that the nature of the report is such that one is left wondering whether Emoit just noted he 25 condition of the patient and ever carried out any assessments to the medical standard required.

Counsel additionally submitted that in absence of a mental state examination in relation to perception, cognition, thoughts of the patient and mental status assessment it would be speculative of court to rely on the report which is inconclusive. That this was so because no court had

ever made assessment and determination that Echimu Charles as not $\mathsf{S}$ being able to manage his own affairs so as to invoke the operation of section $60(6)$ of the Mental Health Act, 2019.

On issue (iii) counsel submitted that the application is primarily filed in hot pursuit of personal interest of the applicant as opposed to Echimu Charles.

Counsel stated that the applicant averred that his father began experiencing mental breakdowns in 1994 when his mother died which is, however, a period of 28 years before the application was filed. He further submitted that from the minutes dated 22/01/2019 adduced by the applicant in court it is clear that Mzee Echimu and other family member 15 were never invited to the meetings. That the personal interest of the applicant is further shown by the certificate of registration of the business name which he registered solely in his name.

He submitted that the personal interest of the applicant is further shown by the various annexures to the $1^{\ensuremath{\text{st}}}$ respondent's affidavit in reply where he $20$ misrepresents himself as the father of the 1st respondent and also the landlord of Plot 17 Gweri road.

That the same annexure B which is an intention to sue bears the name Simon Peter Echimu t/a Egwau s/o Elabu.

That the applicant was not endorsed by the family members to file this 25 application as alleged and the permission attached to the application was signed on 29<sup>th</sup> September 2021 by Inwaku Florence, Eegu Samuel, Elasu Mackay and Adongo Stella on the same date this application was filed.

Counsel finally prayed that the application is dismissed, an order or pronouncement specifically striking off the issue of plot 17 Gweri Road as 30 it does not form part of the affairs or estate of Echimu Charles and in the

alternative the court should appoint Egwau John Robert and Anyago $\mathsf{S}$ Florence to manage the affairs of Echimu Charles and costs of the application be provided.

In rejoinder, counsel for the applicant submitted that the application is competent under the laws it was brought and the medical report is sufficient to support the grant of this application. Counsel reiterated his earlier submissions and further submitted that the submissions by counsel for the respondents on observation of the patient's current state of mind are pure hearsay as counsel does not have the required qualification to make a psychiatric medical procedure or competence to challenge the report. 15

## Court's findings:

I will first consider the preliminary issues raised by counsel for the applicant.

First with regard to the regurgitation of the 1<sup>st</sup> respondent's affidavit by the 2<sup>nd</sup> respondent. I find that no fatality or injustice was occasioned to the applicant by it.

With regard to the costs borne by Emoit to testify in court, I agree with the respondent's submissions that they will have to abide the outcome of the ruling of court in respect of this. Accordingly, the two preliminary issues are overruled.

In regard to this application, I note that it was brought under section 60(1) & (3) (b) of the Mental Health Act, section 98 of the Civil Procedure Act, section 33 of the Judicature Act, order 32 rules 1(1), 4, 15, 19 & 23 and Order 52 rules 1 & 2 of the Civil Procedure **Rules.**

However, there is contention by both counsel that is premised on section $\mathsf{S}$ 60 (1) & (3) (b) and section 24 of the Mental Health Act 2019.

Section 24 is a lengthy one that provides details for involuntary assessment, admission and treatment. It provides for what amounts to an involuntary patient, who may request that the patient be assessed and treated and the procedures to be followed.

**Section 60** on the other hand provides for the capacity and competence of a person with mental illness.

**Section 60 (1)** provides that a person with mental illness has the right to enjoy legal capacity on equal basis with others in all aspects of life.

Subsection 2 provides that a person with mental illness has the right to 15 manage his or her affairs.

Subsection 3 provides that notwithstanding subsection (2), a person with mental illness may be stopped from managing his or her affairs where-

(a) the Board orders, after it is established by two mental health practitioners, appointed by the Board, that the person with mental illness is not able to manage his or her affairs; or

(b) court, on an application by a relative or a concerned person, determines that the person is not able to manage his or her affairs.

Counsel for the applicant is relying on section $60(1)$ & $(3)(b)$ for the orders sought. Counsel for the respondents on the other hand finds this improper 25 arguing that Echimu Charles had not yet been adjudged a person with mental illness by any court.

Counsel also seeks to rely on section 24 because from the evidence led in court Echimu Charles was an involuntary patient and the report made by Emoit resulted from this involuntary admission and assessment.

My interpretation of **section 60 of the Mental Health Act** is that a $\mathsf{S}$ person with mental illness has the right to enjoy legal capacity and manage their own affairs unless it is determined otherwise.

Section 60(3) mandates either the Uganda Medical Advisory **Board** or a **competent court** to make this determination.

This assessment as per subsection 6 is restricted to evaluating the capacity 10 of a person with mental illness to determine the ability of managing his or her own affairs.

Clearly before the board or competent court can make this determination the person must undeniably be mentally ill which requires proof by the applicant and upon determination that the mentally ill person is incapable 15 of managing their affairs, the court may then appoint a personal representative under to manage the estate of the mentally ill person and or be their guardian as provided under section 62 of the Mental **Health Act.**

This means that before an applicant can approach a court for an order 20 appointing them to manage the mentally ill person's affairs they must first seek court's decision that person was mentally ill and incapable of managing his own affairs.

The applicant in the instant applied for orders appointing him the personal representative of Echimu Charles and leave to act as his next 25 friend in legal actions.

The applicant then goes on to adduce the medical report as proof that Echimu Charles is mentally ill and further adduces in his affidavit that the father's property specifically plot 17 Gweri road is at risk from actions by third parties including the 1<sup>st</sup> respondent.

In my considered view, it is clear that the applicant is required by law to $\mathsf{S}$ have first sought an order of court that determines that Echimu Charles is mentally ill and unable to manage his own affairs before seeking orders to manage the estate and be his next friend.

The above notwithstanding, the applicant sought to prove that Echimu Charles was mentally ill using primarily the report authored by Emoit 10 John Ekol.

This psychiatric assessment report for Echimu Charles dated 10/02/2021 indicates Emoit John Ekol in his capacity as a principal psychiatric clinical officer and head of mental health services as the author.

- Emoit writes that Echimu Charles is an 82-year-old male who was brought 15 to the unit for psychiatric assessment and medical report because he was behaving abnormally for some time now and he would present erratic and unusual behaviours characterised by forgetfulness, being irritable, not sleeping at night and speaking uncoordinated words. - He further observes that Mzee Echimu was readmitted to the mental 20 health unit accompanied by his elder brother, wife and son because of talking to himself, sitting under the sun for long, gesturing and wondering far from home and his wife also reported him to be very destructive of property. - The report then goes to indicate Mzee's past psychiatric history and states 25 that this was his fourth admission, first was in 1992, second 1993 and third 1995.

The report under mental state examination indicates that he was an elderly man, dressed in clean clothes, dirty sandals, long dirty finger nails and continuously laughing to self.

Psychomotor activity was reduced and his speech is irrelevant and $\mathsf{S}$ uncoordinating. His mood and affect are flat.

It further states that perception, cognition, thoughts not assessed as patient was not stable to be engaged in a full assessment. It was noted that he lacks sleep.

And finally the investigations done included $B/S$ for Malaria, RCT and 10 CBC all negative.

Emoit then concludes that based on the above findings, Mzee Echimu was presented with a major mental health disorder (schizophrenia), R/O Manic episode and therefore confirmed by him on behalf of the Hospital

Director to be a person of unsound mind. 15

Emoit then makes recommendations that Echimu Charles is kept in the Ward and given medication and also a mental status assessment be carried out when he is stable.

During cross-examination it was established that this mental status assessment was never carried out. Emoit also stated that in psychiatry you 20 cannot make a diagnosis as patterns of symptoms keep on changing and the diagnosis can change according to the assessment.

The question that arises from the foregoing is that without mental status assessment of Mzee Echimu Charles how did Emoit come to the conclusion that Echimu was schizophrenic?

And if indeed a diagnosis changes with the patterns of symptoms shown by a patient, can this court rely on a report made in February 2021 over a year ago to find Mzee Echimu Charles a mentally ill person, especially when such a report was not based on a mental status assessment?

In m my considered opinion, I would find that the medical report relied $\mathsf{S}$ upon by the applicant wanting in relations to Mzee Echimu mentally illness since his mental status assessment was not carried out. There ought to have been report in which a proper mental status assessment was carried, given the fact that the Mzee Echimu Charles is claimed to have been admitted in January 2021. $10$

It would thus be unfair and unjust for court to rely on an inconclusive report adduced by the applicant to determine that Mzee Echimu Charles is unable to manage his affairs.

Having determined thus I see no reason to go into the provisions of section 24 of the Mental Health Act and whether the procedures provided therein 15 were followed.

I further find that the applicant has not brought this application in good faith or in the interest of his father for the following reasons;

a) The applicant admitted that he never invited his stepmother or her children to any of the meetings where they discussed the health of Mzee Echimu or the so called family business and this treatment was also extended to the respondents. The applicant well aware that his father had two wives selfishly ignored the 2<sup>nd</sup> wife's children in any planning for the Echimu Charles' estate which also affects them, in fact the applicant confirmed that the land at Obutei Arapai is currently occupied by children of both Echimu's wives. The applicant in his evidence excludes the 2<sup>nd</sup> wife and her children from handling the affairs of Echimu Charles and claims it's only the first wife's children. And this extends to the authority he claims he got from the family to bring this application, the authority excludes most of his siblings and is countered by a letter attached by the first respondent in where Mzee Echimu's clan finds the applicant an unfit

person to manage Mzee Echimu's estate and appoints the 1<sup>st</sup> respondent as a responsible person and it should be noted that the applicant does not refuse this letter his only contention is that the 1<sup>st</sup> respondent has not done anything about his appointment. It is also interesting as brought out by the applicant's cross-examination that the children of the 2<sup>nd</sup> wife were never involved in the admission and treatment of Echimu Charles, the applicant stated that it was him, Inwaku Florence and Eegu Samuel all children of the first wife who gave a background on Echimu Charles' health.

b) The applicant throughout his application focuses on the proprietorship of Plot 17 Gweri road and how the same belongs to his father and should be protected from the 1<sup>st</sup> respondent, however, he does not adduce any evidence that property belongs to his father.

c) The business name Echimu Charles t/a Egwau s/o Elabu which business he claims his father started in 1972. He failed to prove this as well, instead as seen in the certificate of registration, the applicant registered Egwau Elabu Family Enterprise on the 15<sup>th</sup> of February 2019 and the statement of particulars indicates him as the sole partner yet it also indicates that the business commenced in 1972-01-01 more than a year before he was born. And these forms are not for business name renewal as claimed by the applicant but registration.

The applicant, as rightfully submitted by counsel for the respondents, appears to be advancing his personal interests through this application and not the interest of his father given the revelations that he had invited not invited any of the family members to meetings held concerning his property and apparent business name.

$10$

$\overline{5}$

$20$

From the foregoing, I find that it has not been conclusively proved that 5 Mzee Echimu Charles is mentally ill and so the orders sought herein by the applicants cannot at this stage be granted.

Furthermore, basing on the fiduciary relationship that the orders sought by the applicant would create between him and Mzee Echimu Charles, I would find that unless proper process is followed with all concerned members of Mzee Echimu being in agreement, it would be erroneous for this court to grant the orders sought as this would not be in the interest of justice.

Also, the other remedies sought by counsel for the respondent with regard to appointment of the first respondent as manager of the estate and the 15 declaration with regard to Plot 17 Gweri Road cannot be determined within the sphere of this application.

The applicant is advised to follow the proper process for the declaration that Mzee Echimu is a person who is not capable of managing his affairs and in doing so the involvement of all interested family members should be assured to avoid any future mismanagement of the estate of Mzee Echimu, if at all an order were to be granted as such.

The application is accordingly dismissed with costs to the respondents.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

18<sup>th</sup> October, 2022