In The Matter of EWM [2022] KEHC 12506 (KLR)

In The Matter of EWM (Petition E041 of 2022) [2022] KEHC 12506 (KLR) (Family) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12506 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Petition E041 of 2022

MA Odero, J

May 6, 2022

In the matter of

DMK

1st Petitioner

CGK

2nd Petitioner

Judgment

1. Before this court is a Petition dated February 25, 2022by which the petitioners DMK and CGK seek the following orders:-i.That the Honourable court be pleased to appoint the petitioner herein DMK and CGK the legal guardians of the patient with full authority for and in her name to conduct any and all her affairs as she would have done herself.ii.That the Honourable court be pleased to make such others orders and or further orders as it may deem fit and just to grant.

2. The Petition was supported by an affidavit of even date sworn by DMK on her behalf and on behalf of the 2nd petitioner. The authority to swear has been filed together with the Petition.

3. The Petition was canvassed by way of viva voce evidence on the online platform. The 1st petitioner told the court that she resides in South C Nairobi Kenya and she is a sister of the subject patient who is aged ninety (90) years. She stated that the subject has been unwell for about 40 years and has been suffering from Schizophrenia for a long time. That she lives with the subject and is her main caregiver and is also caregiver to the subject’s two adult children who also suffer from Schizophrenia. The Petitioner stated that she cared for the subject even when the husband was alive. The subject is now a widow following the death of her husband DMM on January 3, 2018. A copy of his Death Certificate Serial Number XXXXX is annexed to the Petitioner. (DKCG ‘2’).

4. The 2nd petitioner told the court that he lives in Thika Kenya. The subject is his aunt as she was married by his mother’s brother. He seeks to be appointed as Guardian of the subject who is aged and has been ill for a long time. He stated that the subject has three children.

5. PW3 was GWK. She told court that she is the daughter to the subject and she lives in Scotland. She confirmed that she was aware of the petition and supports it fully. She confirmed that her mother had been unwell with mental issues since her young age. She believes that the two Petitioners are best place to be legal guardians.

6. PW4 was WW who lives in Nairobi South C. She is the subject’s daughter. She confirmed she has no objection to the Petition and she believes the Petitioners are best placed to take the legal guardianship.

7. PW5 was AM who lives in Nairobi South C. He is the son of the Subject. He said he was aware of the Petition and had no objection to the Petition.

8. I have carefully considered this Petition, the affidavits filed in court as well as the evidence adduced in this matter. Section 26 of the Mental Health Act provides for the circumstances under which a court may make orders for the Guardianship of a Subject (patient) 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 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 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)

9. The petitioners have sought to be declared as Guardians of the subject and Managers of her estate. 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 her own affairs. The Petitioners testified that the patient was diagnosed with Schizophrenia. They testified that two of the patients’ children WW and AM have also been diagnosed with the same disease Schizophrenia. Therefore the patient and her two children had all been rendered unable to live on their own or to manage complex issues of their lives and neither can they execute legally binding matters on account of the deterioration of their cognitive functioning.

10. The petitioners have produced medical reports for the subject and her two children. All the reports are dated May 6, 2021 and prepared by one Dr. J.K. Mutiso a Specialist Psychiatrist at Gilead mental Health Consultants. The report in regards to the subject states that-“"E has been under Psychiatric specialist care by the undersigned in our facility since April 18, 2013. She presented a long standing history of mental illness that had been treated in many health facilities and by many health workers. The signs and symptoms she presented are consistent with a diagnosis of schizophrenia, which has been on the relevant treatment. Her progress has been remarkable in that despite her advanced age she is able to keep a regular routine, take care of her own personal hygiene, knit sweaters, and exercise daily. However, she is still not able to like on her own, manage complex issues of her life nor exercise legally binging matters on account of the deterioration of her cognitive functioning.….It is therefore my considered opinion that the said EWM is not able and has indeed not been able to manage the family estate property and financial affairs or even her own affairs on account of the mental incapacity as a result of schizophrenia.There is therefore a growing need for the appointment of legal guardianship and administration of the family estate, property and financial affairs”.

11. The court was able to see the subject online. She was an elderly lady with white hair, she responds slowly when spoken to and did not appear to comprehend where she was. FNK.

12. The subject’s children are all in agreement with this Petition for Guardianship. Though two of those children AMM and WWM are also unwell, their medical reports reveal that they also have schizophrenia and are not able and indeed have not been able to managed their own personal affairs thus they do not have the capacity to manage the family estate property and financial affairs. The subject’s other child who is not unwell is married and lives in Scotland. She is unable to take up management of the patient due to geographical distance. However, she has no objection to the Petition and she has recommended the Petitioners as suitable guardians of the subject.

13. Based on the material availed to this court I am satisfied that the subject suffers from a mental disorder under the terms of the Mental Health Act. I am satisfied of the merit of this Petition and I hereby allow the Petition dated February 25, 2022. The Petitioners DMK and CGK are appointed as legal Guardians and Managers for the Subject EWM, with full authority to transact any business and to run all Bank Accounts held in the name of the Subject.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. MAUREEN A. ODEROJUDGE