In re H N N (A Person of Unsound Mind) [2016] KEHC 8225 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY AND PROBATE DIVISION

MISC. APPLICATION NO. 125 OF 2016

IN THE MATTER OF AN APPLICATION FOR GUARDIANSHIP OF H N N  (A PERSON OF UNSOUND MIND)

P N G……….…..…..…………………APPLICANT

R U L I N G

1. By a Petition dated 5th October, 2016 brought under Section 26, 28and29 oftheMental Health Act (Cap 248) laws of Kenya,P N G prays  for orders of court that:

a) The Applicant be appointed as custodian and guardian of H N N.

b) The Applicant be appointed to henceforth collect the retirement funds of H N N released by Teachers Service Commission through Barclays Bank Account No. […], which funds shall be utilized to cater for the medical care of H N N.

c) The Applicant be  appointed as a manager of all the affairs relating to  H N N, and to the following properties:

a) [particulars withheld] approx. 0. 10 Ha.

b) [particulars withheld] Approx. 1. 619 Ha.

c) Thika Municipality [particulars withheld]

d) Proceeds from the said accounts be used to cater for the education of W U K, their last born son who is pursuing undergraduate course at the [particulars withheld].

2. The application is premised on grounds that H N N (hereinafter the Subject,) is the Applicant’s husband and that he suffers from Senile dementia, a condition associated with relentless decline in intellectual function.  That the Subject has become completely dependent for all his needs, which has led to his admission at both the Nairobi Equator Hospital and  Barnes Jewish Hospital in the United States of America.

3. The Applicant also states that the Subject is no longer capable of making decisions as a normal adult.

4. In a supporting affidavit sworn on 5th October, 2016 the deponent P N G depones  that, she is the legal wife of H N N  having solemnized their marriage on 1st December, 1979. They have six issues of the marriage who are all adults.   That as a result of the Subject’s mental condition, the Applicant is unable to meet daily and monthly expenses towards his medical attention.

5. That the Applicant avers that she is unable to access the retirement benefits of the Subject remitted to him through Barclays Bank of Kenya Limited, without his consent.

6. The Applicant attached to her application a medical report from Dr. Lubanga the Consultant Neurosurgeon, who operated on the Subject for a blood clot in the brain.  The Subject later developed Diabetes Mellitus and progressive disorientation, lack of cognitive function and memory lapses, which led to compromised Mental activity.

7. I have perused the pleadings filed in this matter, heard the submissions of learned counsel Mr. Mariga for the Applicant, and also read the  medical report prepared by Dr. Lubanga.  From the foregoing I am persuaded that the Subject is a person who is suffering from a mental disorder.  In view of the expert opinion of Dr. Lubanga which states that the condition has rendered the Subject incapable of performing his daily activities of functioning, I find that he is not therefore able to take care of himself and to conduct his own affairs.

There being merit in the application dated 5th October, 2016, I hereby allow it as prayed by the Applicant, with the following orders:

a) The Applicant is appointed as custodian and guardian of H N N.

b) The Applicant is appointed to henceforth collect the retirement funds of H N N released by Teachers Service Commission through Barclays Bank Account No.[particulars withheld], which funds shall be utilized to cater for the medical care of H N N.

c) The Applicant is  appointed as a manager of all the affairs relating to  H N N, and to the following properties:

a) [particulars withheld] approx. 0. 10 Ha.

b) [particulars withheld] Approx. 1. 619 Ha.

c) Thika Municipality [particulars withheld]

d.) The proceeds from the said accounts be used to cater for the education of W U K, their last born son who is pursuing undergraduate course at the [particulars withheld].

SIGNED DATEDandDELIVEREDin open court this 3rd day of November, 2016.

…………………

L. A. ACHODE

JUDGE