In re J K N [2018] [2018] KEHC 4519 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MISC. APPLICATION NO. 23 OF 2018

IN THE MATTER OF SECTION 26 AND 28 OF THE MENTAL HEALTH ACT CAP, 248 OF THE LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR GUARDIANSHIP OF J K N

RULING

The applicant by an application dated 13/04/2018 has sought that she be appointed the legal guardian of J K N and she be authorized to manage his estate.

The application is premised on grounds that the subject is aged 89 years and has been confirmed to suffer from senile dementia and BHP Urine Incontinence.  That due to his advanced age, he does not have the mental capacity to manage and administer his property or engage in any legal transactions and dealings.  The applicant who is a daughter of the subject has annexed a medical report from Kerugoya County referral Hospital dated 28/03/2018 confirming the mental disorder it states;

“The aforementioned has been assessed in Kerugoya Hospital and found to be debilitated, demented person suffering from senile dementia, osteoarthritis and prostatism.

He has also benign prostatic hypertrophy. This means he is constantly unable to hold urine.

He is therefore in need of regular medical and social support.”

The applicant depones that her siblings have given their consent for the appointment as guardian. She has annexed a consent dated 13/4/2018, DNK -2- signed by C K K, J K K and R M K.  She has a letter from the Senior Chief Mutira Location dated 8/1/18 confirms that J K N hails from his location and has been ailing.  That the family has agreed that R N K to operate his account and he has no objection.

Having perused the affidavit filed in this matter and in view of the expert opinion of Dr. A. K. Gatang’i, I am persuaded that the subject is a person who is suffering from mental disorder, and is on medication.  He is not capable of dealing with his own affairs.

The mental Health Act provides for the case of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons.  Section 26 of the grants, grants court powers to grant orders for the management of the Estate of the subjects and for their guardianship by any near relatives or suitable persons.

Section 28 of the Act provides for the management of the subjects estate as he may require funds to facilitate and ensure provision of medical care, nutrition hygiene and upkeep.

Section 26(3) of the Act provides:

“where upon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs but that he is capable of managing himself and is not a dangerous to himself or to others or likely to act in a manner offensive to public decency the court may make such orders as it may think fit for the management of the estate of such persons including proper provision for his maintenance.”

I find that the applicant has adduced  sufficient evidence to prove that the subject J K N is suffering from a mental disorder, a medical condition as contemplated under section 26 of the Act.

In view of the foregoing I order as follows:

1) The subject J K N is declared to be a person suffering from mental disorder as provided under Section 26 of the mental Health Act.

2) The applicant R N K who is his daughter is appointed as his legal guardian who will manage his estate.

3) No orders as to costs.

Dated and delivered at Kerugoya this 31st  day of July 2018.

L. W. GITARI

JUDGE

Read out in Open Court on 31/7/18.

M/s Thungu Holding Brief for Mr. Nganga for the applicant.

C/C:- Naomi.