In re S R S [2016] KEHC 2308 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC.  NO. 117 OF 2015

IN THE MATTER OF THE MENTAL HEALTH ACT, CAP 248, LAWS OF KENYA

AND

IN THE MATTER OF MR. S R S

JUDGEMENT

1. The petition dated 11th August 2015 seeks two principal orders:-

(a) That S R S (the patient) be adjudged to be a person suffering from mental disorder; and

(b) That the petitioner, M S, be appointed as the guardian of the patient and the manager of the estate of the said patient, with the powers enumerated in the said petition.

2. The petition is supported by an affidavit with supporting facts and evidence, or verifying it.  The said affidavit was sworn on 11th August 2015. The patient is the husband of the petitioner, and they have between them two (2) children. She avers that the petitioner suffers from dementia and Alzheimer’s disease, is mentally incapacitated and unable to manage himself and his affairs. .

3. The petition was prosecuted orally on 10th March 2016. The petitioner testified, and gave vent to the averments made in the papers she had lodged in court in support of her case. None of her children attended court, but it was explained that the two of them were resident abroad.

4. The medical report put on record is by Dr. Butt A. M. of the Cottage Hospital, Nanyuki. It is undated, but it indicates that the signatory had been attending to the patient since May 2013. He states that he suffers from advanced vascular dementia, with Alzheimer’s disease. He is described as mentally incapacitated and incapable of making any rational decisions, and needed to be assisted with everything. His condition is described as progressive and irreversible. It is indicated that the petitioner has been acting as his guardian.

5. The law which governs the handling of persons suffering mental illness is the Mental Health Act.  It also provides for custody of such persons and the management of their estates. Part XII of the Act deals with the judicial power over persons and estates of persons suffering from mental disorder. Section 26 of the Act specifically provides for orders for custody, management and guardianship of such persons and their estates.

6. I am satisfied from the material before me that the patient is no longer able to manage himself and his affairs on account of mental disorder arising from the conditions that are documented in the medical report by Dr. Butt that I have referred to above. I have found him to be suffering from mental disorder.  I am also satisfied that a case has been made out for the appointment of the petitioner, as a guardian of the patient and the manager of his estate.

7. The position of the manager of the property and affairs the patient places the property of the patient in the hands of others. This puts the petitioner in a fiduciary position so far as the patient and the estate is concerned. This makes her a trustee. She is bound to account to both the court and to her children, and she is as such required to file with the court regular accounts of her management of the said estate.

8. The orders that I feel bound to make in the circumstances are:-

(a) That the patient, S R S, is hereby adjudged to be a person suffering from mental disorder;

(b) That the petitioner herein, M S, is hereby appointed guardian of the said patient;

(c) That the said petitioner is also hereby appointed manager of the estate of the patient to exercise all the powers and to undertake all the duties of a manager as set out in the Mental Health Act; and

(d) That the petitioner shall place before court at the expiry of three (3) months from date hereof a full and accurate account of their handling of the estate of the patient.

9. It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this 26TH DAY OF OCTOBER, 2016.

W. MUSYOKA

JUDGE