RNS & another v BS [2023] KEHC 25224 (KLR)

RNS & another v BS (Civil Miscellaneous Application 498 of 2019) [2023] KEHC 25224 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25224 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application 498 of 2019

AN Ongeri, J

November 10, 2023

Between

Rns

1st Applicant

Kms

2nd Applicant

and

Bs

Respondent

Ruling

1. The applicant RNS filed the originating summons (OS) dated 3/7/2019 seeking the following orders;i.That the said BS be produced in court for purposes of an inquiry by the court to establish whether by reason of unsoundness of mind or mental infirmity, he is capable of protecting his interests.ii.That the said BS be sent to a doctor for observation for a report about his mental condition or in the alternative, the medical report attached herewith be adopted by this honourable court.iii.That the applicants be appointed as the respondent’s guardian ad litem.iv.That the court be pleased to make any further orders it deems necessary.v.That costs of this application be provided for.

2. The Originating Summons is supported by the affidavit of the applicant RNS in which he stated that he is a brother to the said BS, hence competent to swear this affidavit.

3. That BS is a bachelor and has never been married and a trained architect having practiced for 10 years.

4. That sometimes in the year 2006, they realized that BS’s judgment and decision-making capacity was deteriorating and would from time to time engage in weird behaviors unlike him as follows;(i)He had bizarre delusions speaking of an imaginary wife who lives in another planet(ii)He mumbled to himself as if having hallucinatory behavior(iii)He started keeping to himself had frequent bouts of agitation and violence

5. That his condition deteriorated with time and eventually on 25th October 2018, the family sought medical attention form one Dr. Pius Kigamwa who advised that the explained symptoms could be as a result of a mental disorder known as dementia and advised that the family helps manage his affairs. (Annexed herewith and marked “RN,KM2” is a copy of the report from the doctor)

6. That given that BS’s general and mental condition had drastically deteriorated and also considering that while in the said condition he appeared to lack the capacity to make decisions affecting his personal needs, adequately understand and or appreciate the nature and consequences of such inability, it is imperative that this court makes an inquiry as to his mental soundness.

7. That it is in Bs’s best interest that the Applicant be appointed as his legal guardian and managers of his estate, to settle the growing medical expenses and to ensure that funds are available for his upkeep and further medical attention in the future.

8. The applicant RNS told the court that he is an advocate of the High Court of Kenya and that the subject is his younger brother.

9. He said the subject had a history of mental sickness and that he was hospitalized at Chiromo Hospital and Mathari hospital.

10. He said the family had consented to him being appointed guardian of the subject to manage his affairs.

11. The 2nd applicant passed away on 22/4/2022.

12. The applicant was asked to avail the medical report and the consent signed by the family members.

13. The medical report from a medical doctor was availed together with the consent of the family members.

14. I find that the originating summons dated 3/7/2019 meritorious and allow them in the following terms;a.That the applicants be appointed as the respondent’s guardian ad litem.b.That the Applicant shall be responsible to manage the affairs of the subject

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ……………………A. N. ONGERIJUDGEIn the presence of:……………………………. for the 1st Applicant..................................... for the 2nd Applicant……………………………. for the Respondent