In re TMK (A Person Sufferring from Mental Health) [2023] KEHC 25705 (KLR)

In re TMK (A Person Sufferring from Mental Health) (Miscellaneous Application E199 of 2023) [2023] KEHC 25705 (KLR) (Family) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25705 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application E199 of 2023

PM Nyaundi, J

November 3, 2023

IN THE MATTER OF TMK

Judgment

1. Before this Court is a Petition dated 18th September 2023 by which the Petitioner TMK seeks the following orders: -I.That this Application be and is hereby certified as urgent and service of the same be dispensed with in the first instance.II.That TMK be appointed Guardian and next friend of JK.III.That TMK be appointed as the administrator and manager of the affairs of JK.IV.That the Honourable Court be pleased to issue no orders to costs.

2. The Petition was supported by an Affidavit dated 18th September 2023 sworn by the Petitioner. The matter was canvassed by way of viva voce evidence on the online platform. The Petitioner is the wife of the Subject Patient. The patient is a 68 year old.

3. The Petitioner stated that she was seeking to be appointed as Guardian of her husband’s affairs, administrator and manager of the subject affairs. She told the court that the subject has limited mobility and is unable to manage his affairs, and is therefore not in a position to manage his affairs.

4. That the subject suffers from Parkinson’s disease, which has led to a significant long-term and progressive impairment in memory, cognitive function and decision-making capacity. She has annexed to her Supporting Affidavit, a copy of the medical report of the patient dated 6th December 2022 by Dr. Herman Ekea (Annexure “TM-2”).

5. The Order of guardianship will enable the Petitioner handle the Subject’s affairs including being a party in case ELC NO. E37 of 2022 which involves a parcel of land known as Igembe/Amwathi Maua/xxxx owned by the subject.

6. PKK, JMK, EKK and JMK are the children of the subject and confirmed that they had no objection to the Petitioner being granted guardianship of their father. They were present in court and confirmed that they consent to this Application. They have all signed a consent dated 18th October 2023.

7. I have carefully considered this Petition, the Affidavit filed in Court as well as the evidence adduced in the matter. Section 26 of the Mental Health Act, Cap 248, Laws of Kenya provides for the circumstances under which a Court may make orders for the Guardianship of a Subject (Patient) and the management of their affairs as follows: -“Order for custody, management, and guardianship(1)The court may make orders—(a)For the management of the estate of any person suffering from mental disorder; and(b)For the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.(2)Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.(3)Whereupon 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 dangerous to himself or 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 person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.” [Own emphasis]

8. The Petitioner has sought to be declared as Guardian and Manager of the Patient. To merit the above orders the Petitioner must adduce evidence sufficient to satisfy the Court firstly that the Patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the Patient is incapable of managing his own affairs.

9. The Petitioner testified that the Patient was diagnosed with Parkinson’s disease. She testified that the patient has long-term and progressive impairment in memory, cognitive function and decision-making capacity. He also has limited mobility and is unable to manage his affairs and is totally dependent on the Applicant.

10. Medical Reports dated 6th December 2022 prepared by Dr. Herman Ekea, at The Aga Khan University Hospital, was produced as an exhibit. The Doctors diagnosed the subject with Parkinson’s disease. The report stated inter alia that:-“Mr. K has been on follow up at the Neurology, Psychiatry and Endocrinology clinics for the above diagnoses since May 2021. He has significant long-term and progressive impairment in memory, cognitive function and decision-making capacity as a result of his medical conditions. He also has limited mobility and requires supervision and assistance from his family at all times.Opinion: Please offer them all the necessary assistance.

11. The Subject’s children are all in agreement with this Petition for Guardianship and have signed consent to the Petition and confirmed their consent to the Court. The Subject currently lives with the Petitioner at their home and the Petitioner has always cared for him.

12. Based on the material availed to this Court I am satisfied that the Subject suffers from a mental illness under the terms of the Mental Health Act, 2022. I am satisfied with the merit of this Petition and order as follows;i.JK (the Subject) is hereby adjudged to be suffering from mental disorder pursuant to Section 26 of the Mental Health Act, Cap 248 Laws of Kenya.ii.TMK is hereby appointed the legal guardian to JK.iii.TMK is hereby appointed manager of the estate of JK under Section 28 of Mental Health Act to manage his estate including any such description of moveable or immoveable property, money, debts, and legacies, power to execute, 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.iv.Pursuant to this appointment the Petitioner shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging JK.v.In accordance with Section 27(4) of the Mental Health Act,2022 the Petitioner shall cause within 30 days the publication of notice in the Gazette, informing the public of her appointment as the manager of the estate of JK.vi.As Manager of the Estate of JK, the Petitioner may dispose of the property only with the sanction of the court.vii.The matter will be mentioned before the court on 18th January 2024 to confirm compliance.viii.Costs to be met out of the Estate of the Subject

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 3rd DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of: -Mr. Gichaga for the ApplicantSylvia Court Assistant