In re MJZY [2021] KEHC 4214 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. E050 OF 2021 (O.S)

IN THE MATTER OF SECTIONS 26, 28 AND 29 OF THE MENTAL HEALTH ACT, CAP 248 LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR ORDERS OF GUARDIANSHIP OVER THE AFFAIRS OF MJZY

JAZY.......................................................1ST APPLICANT

SSC........................................................2ND APPLICANT

LA..........................................................3RD APPLICANT

JUDGMENT

1. By an application filed by way Originating Summons dated 16th August, 2021, brought under sections 26,28and 29 of the Mental Health Act, the Applicants seek to be appointed as the joint guardians over the affairs of MJZY, hereinafter referred to as the Subject. The application is premised on the grounds that the Subject is aged 79 years and suffers from Type 2 diabetes with dyslipidemia, glioblastoma and neurological impairments. That due to the Subject’s advanced age and medical condition, she is unable to function independently, is in need of frequent and constant medical care and nursing care and cannot manage her own affairs.

2. The Applicants jointly swore an affidavit on 25th August, 2021 in support of the application in which they depose that the application is aimed at promoting the welfare of MJZY. That the authority to manage the Subject’s affairs is sought for the sole purpose of paying her medical expenses and daily upkeep.

3. The Subject was married to the late PMC who died domiciled in Kenya on 6th May, 2021. There is on record a Certificate of Marriage of serial number [...] and a Certificate of Death of serial number [...] to this effect. Upon the demise of her husband, the Subject became the sole beneficial owner and signatory of their joint accounts. The 1st Applicant is a brother to the Subject while the 2nd and 3rd Applicants are family friends of the Subject and her late husband. The Applicants are also co-executors and trustees of the Last Will and Testament of the late Paul Michael Cummings. A copy of the Last Written Will which is dated 1st October, 2018 and under which the Applicants are appointed as such is on record.

4. Annexed to the application is a medical report prepared by Dr. Mohamed Noorani a Consultant Cardiologist/Physician at the Aga Khan University Hospital, Nairobi. The report indicates that the Subject is a known Type 2 Diabetic with dyslipidemia. She has been under the care of Dr. Warshow/Dr. Sheikh Associates Clinic at Aga Khan Hospital since the year 2020 when she was diagnosed with a glioblastoma for which she underwent radiotherapy, and subsequently chemotherapy with Temozolomide until February, 2021. That she had significant neurological impairments and has to be fed via a gastrostomy tube. She therefore requires continuous assistance for her day to day needs. The report concludes that in her present condition, the Subject is unable to make independent decisions or take care of her needs.

5. After carefully considering the pleadings filed in this matter, and in view of the expert opinion of Dr. Mohamed Noorani, the Consultant Cardiologist/Physician, I am persuaded that MJZY, the Subject herein, is a person incapable of making independent decisions and conducting her own affairs as envisaged under the provisions of the Mental Health Act. I am also convinced that the Applicants are fit to be appointed legal guardians over the Subject’s affairs.

6. There being merit in the application filed via Originating Summons dated 16th August, 2021, I hereby allow it in the following terms:

a) MJZY be and is hereby adjudged to be a person incapable of making independent decisions and conducting her own affairs.

b) JAZY, SSC and LA (the Applicants herein) be and are hereby appointed as managers and legal guardians of the Subject namely MJZY.

c) The Applicants shall jointly act as managers and guardians in respect of the affairs of MJZY and in particular operate the following Bank accounts:

i. Kenya Shillings Current Account No. [...] held at Standard Chartered Bank, Muthaiga Branch.

ii.  US Dollars Current Account No. [...] held at Standard Chartered Bank – Muthaiga Branch.

iii. Kenya Shilllings Fixed Deposit Account, Deal No. [...] held at Standard Chartered Bank, Muthaiga Branch.

iv. Kenya Shillings Savings Account No. [...] held at Standard Chartered Bank, Muthaiga Branch.

v. Kenya Shillings Fixed Deposit Account Ref. No. [...] held at Diamond Trust Bank, Diamond Plaza Branch Nairobi.

vi. Kenya Shillings Savings Account No. [...] held at Diamond Trust Bank, Diamond Plaza Branch Nairobi.

vii. Kenya Shillings Savings Account No. [...] held at CFC Stanbic Bank Warwick Centre Gigiri U.N. Avenue Branch, Nairobi.

e. The Applicants shall give a full inventory and furnish the court with accurate statements of account of the Subject’s estate within three (3) months of the date of their appointment.

f.  The matter shall be mentioned on 2nd December, 2021 to confirm compliance.

It is so ordered.

DATED SIGNED AND DELIVERED THIS 31ST DAY OF AUGUST, 2021.

……………………..

L. A. ACHODE

HIGH COURT JUDGE