In re Estate of KW [2022] KEHC 12257 (KLR)

In re Estate of KW (Miscellaneous Application E25 of 2022) [2022] KEHC 12257 (KLR) (Civ) (17 March 2022) (Judgment)

Neutral citation: [2022] KEHC 12257 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E25 of 2022

LA Achode, J

March 17, 2022

IN THE MATTER OF THE MENTAL HEALTH ACT (CAP 248) LAWS OF KENYA IN THE MATTER OF AN APPLICATION FOR APPOINTMENT OF GUARDIAN AND MANAGER OVER THE AFFAIRS OF THE ESTATE OF KW

In the matter of

SW

Applicant

Judgment

1. By an application dated January 19, 2022 filed under Certificate of Urgency and brought under sections 26 and 28 (1), (2) of the Mental Health Act (cap 248) Laws of Kenya, the applicant herein seeks to be appointed as the legal guardian of KW (hereinafter referred to as the ward).

2. The application is premised on the grounds that the ward has been suffering from ill mental health due to an extremely advanced state of disorganized schizophrenia that has rendered him incapable of undertaking any day to day activities without the assistance of a nurse or doctor or care giver tasked by the applicant. Therefore, the applicant prays that he should be appointed as legal guardian and manager of the ward’s estate for purposes of providing for his medical expenses, shelter, food and all other needs the ward requires.

3. The applicant swore an affidavit on January 19, 2022 in support of the application in which he deposes that he is the brother and the only blood relative available to take care of the ward. That the ward was diagnosed with advanced state of disorganized schizophrenia in 2013 and has since declined in his mental and physical abilities. He currently requires round the clock care and assistance from a nurse/doctor to accomplish basic day-to-day tasks.

4. It is for the foregoing reasons that the Applicant took the Ward into his home to provide for him care and protection.

5. Annexed to the application is a psychological follow up report prepared by Dr Pius A Kigamwa, consultant psychiatrist at Aga Khan hospital, Nairobi dated July 3, 2021. The report indicates that the Ward has now become totally dependent on others in meeting his daily needs. That he is under care of an attendant 24 hours a day. He also reported that the Ward is at risk of hurting himself from falls due to unsteady gait. Further that his cognitive functions are so impaired they lead to poor judgment and inability to make decisions. Dr Kigamwa recommended that the Applicant continue the homecare services of the Ward.

6. On record is a court order dated March 13, 2015 in which the court appointed the applicant manager of the ward for the purpose of managing and operating his bank account in I&M A/c no 0020XXXXXXXXXX, Ngong Road. The applicant was given power to sign all necessary documents including cheques, withdrawal slips, money transfer forms and any other relevant documents to facilitate payment of debts owed to Jorgs Ark Rehabilitation Centre and or any other hospital the ward was admitted to. The court on December 16, 2021, further granted the applicant access to the Ward’s safety deposit box (B-9) held at I&M Bank.

7. After carefully considering the pleadings filed in this matter, and in view of the expert opinion of Dr Pius Kigamwa, the consultant psychiatrist, I am persuaded that Mr KW, the ward herein, is suffering from mental degeneration. He is therefore a person incapable of making independent decisions and conducting his own affairs as envisaged under the provisions of the Mental Health Act. From the supporting affidavit I am also convinced that the applicant is fit to be appointed as legal guardian over the ward’s affairs.

8. In view of the foregoing, I hereby allow the application dated January 19, 2022 and order as follows:i.KW, the ward herein, be and is hereby adjudged to be a person suffering from a mental disorder as envisaged under section 2 of the Mental Health Act, cap 248 Laws of Kenya.ii.SW (the applicant herein) be and is hereby appointed manager and legal guardian of the ward namely KW in accordance with section 26 of the Mental Health Act.iii.The applicant shall act as a manager in respect to the estate of the ward including any such description of moveable and immovable property, money, debts and legacies. He has the power to execute or sign all deeds and instruments relating to or evidencing the title, or right to any property, or giving a right to receive any money or goods in accordance with section 27 of the Mental Health Act.It is so ordered.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 17TH MARCH, 2022**………………………………L A ACHODEHIGH COURT JUDGE