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MMM v AMK (Miscellaneous Civil Application 51 of 2015) [2016] KEHC 4741 (KLR) (13 June 2016) (Ruling)

Reported
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MMM v AMK (Miscellaneous Civil Application 51 of 2015) [2016] KEHC 4741 (KLR) (13 June 2016) (Ruling)
Citation
MMM v AMK [2016] KEHC 4741 (KLR)
Media Neutral Citation
[2016] KEHC 4741 (KLR)
Court
High Court
Court station
High Court at Nyeri
Outcome
Court issues further directions
Case number
Miscellaneous Civil Application 51 of 2015
Attorneys
Alternative citations
M M M v A M K [2016] eKLR
Judges
JM Mativo
Judgment date
13 June 2016
Language
English
Type
Judgment
Collections
Date published
21 September 2023
Case action
Ruling
Court division
Family
Filing county
Nyeri
Order
a. That the said AMM be produced in court for the purposes of an inquiry by the court for the court to establish whether by reason of unsoundness of mind or mental infirmity, he is incapable of protecting his interests. b. That pursuant to the above order, the parties herein are directed to take a date for the said judicial examination/inquiry. c. No orders as to costs. d. Right of appeal 30 days
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1.The originating summons before me raises three fundamental issues which must be resolved at the outset before considering whether or not to grant the reliefs sought. These are(a)Whether these proceedings ought to have been initiated under the provisions of the Mental Health Act1 as argued by Mr Kabue, counsel for the defendants wife;1Cap 248, Laws of Kenya(b)Whether these proceedings are properly brought under the provisions of order 32 rule 15 of the Civil Procedure Rules, 2010; and if so;(c)What is the proper procedure for declaring a person unfit to protect his/her interests under order 32 rule 15 of the Civil Procedure Rules, 2010.
2.The applicant MMM, a son to the defendant seeks orders that :-a.That the court finds that the defendant AMK is incapable of protecting his interests with regard to his affairs due to senile dementia.b.That the applicant MMM be appointed as the defendant's guradian ad liem.c.That the defendants wife ENK and all his children namely RWM, HKM and MMM do jointly manage all the affairs of the defendant AMK.
3.The applicants grounds are inter alia that due to old age and ill health and senile dementia the defendant is incapable of protecting his interests hence its necessary to appoint a guardian ad litem for him, and that all his children and his wife be appointed to jointly manage his affairs. It is stated that that Doctors have advised that due to the said condition he is incapable of protecting his interests. The applicant in his supporting affidavit avers that the said AMK aged 84 years has of late been treated in hospital for numerous conditions and was confirmed to be suffering from senile dementia. In support of this averment the applicant has annexed a document signed by Prof Mary Wangari Kuria who states that in his current mental state, the said AMK is vulnerable to exploitation and also a medical report dated September 19, 2015 by Dr VCA Okech-Helu which concludes inter alia that the said AMK does not have the mental capacity to take care of his property, medical and legal affairs. Annexed also is a CT Scan which revealed a moderate age related brain atrophy. The applicant also states that the said AMK has been sued by some family members prohibiting him from selling family property. The applicants two siblings have given their consent to the applicant being appointed as their fathers guardian ad litem but their step mother ENK vehemently opposes the prayers sought.
4.The said ENK in her replying affidavit filed on March 30, 2016, avers that the applicant and others picked their father from their matrimonial home on July 31, 2015 on the pretext that they were taking him for treatment, a move that prompted her to file a petition in court being Petition No 537 of 2015 seeking a declaration that the said act violates his fundamental rights, and an injunction to restrain the applicant and orders compelling him to return him back. The said petition is said to be still pending in court awaiting determination. She also avers that she has been denied access to her husband, and denied that her husband suffers from senile dementia and avers that her advocates have been denied access to her husband for the purposes of preparing a replying affidavit. She also states in her affidavit that the court ought to order the applicant to produce the respondent in court for the court to carry out its own independent assessment and insists that the application lacks merit and the same has been brought in bad faith and that if there was a situation warranting the appointment of a guardian ad litem, then as the wife she ranks first in priority.
5.On May 26, 2016 this court made directions that this matter be determined by way of affidavits and oral submissions and both advocates proceeded to argue the case before me. Mr Kimondo for the applicant relied on the grounds on the face of the originating summons and the supporting affidavit and added that two of the defendants children have filed their consent to the application but their step mother has failed to give her consent. He reiterated that the children desire to be appointed jointly with their step mother to manage the affairs of their father. Counsel also submitted that the medical evidence was clear that their father was not capable of managing his affairs. Counsel also submitted that no evidence was tendered to rebut the available medical evidence. Counsel reiterated that his clients were not opposed to the appointment of their step mother and the applicants
6.Mr Kabue, advocate for ENK opposed the application and submitted that the application as drawn is incompetent and fatally defective. In counsels view, the substantive law is the Mental Health Act2 specifically section 28(1) of the said Act. Counsel submitted that an application of this nature ought to be filed by way of a petition, not an originating summons as in this case. Counsel submitted that the said section received judicial interpretation in Loghan Njenga Waweru v Teresia Nyokabi Karanu & another3 and In the matter of Eliud Maina Wanjohi.4 In both cases, the courts reiterated that an application under the Mental Health Act5 ought to be initiated by way of a petition.2Cap 248, Laws of Kenya3HCCC No 242 of 20054HCCC No 18 of 20135supra
7.Further counsel was of the view that article 159(2)(d) of the Constitution does not permit a party to flout express provisions of a statute. Counsel pointed out that the application is expressed under the provisions of the Civil Procedure Act and no notice was served upon his client. Counsel reiterated that the application has been brought in bad faith, has no merits, and reiterated his clients denial that her husband suffers from the alleged ailment.
8.In his rejoinder, Mr Kimondo reiterated that the application is not made under the Mental Health Act6 as submitted by Mr Kabue and maintained that the defendant is not a mental patient within the meaning of the Mental Health Act7 but is suffering from an ailment diagnosed as senile dementia.6Ibid7Ibid
9.Section 2 of the Mental Health Act8 defines "person suffering from mental disorder" as follows8Ibid"means a person who has been found to be so suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse."
10.Part XII of the Mental Health Act9 provides for judicial power over persons and estates of persons suffering from mental disorder. This is the section Mr Kabue relied on his submissions. The said section provides as follows:-9Ibid26.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.
11.The first issue that falls for determination from the opposing positions adopted by both counsels is whether these proceedings ought to have been instituted under the Mental Health Act10 or the Civil Procedure Rules.10Ibid
12.The definition in section 26 of the Mental Health Act11 reproduced above defines a person suffering from mental disorder as a person who has been found to be so suffering under this Act. The defendant has not been found to be suffering from a mental disorder under the said act but from an illness described as senile dementia. On this ground alone I am persuaded that the application before me does not fall under the Mental Health Act.1211Ibid12Ibid
13.Dementia, also known as senility,13 is a broad category of brain diseases that cause a long term and often gradual decrease in the ability to think and remember that is great enough to affect a person's daily functioning. Meriam-Webster14 defines it as a condition that affects the mind of aging people and causes them to be confused, to forget things, etc.13"Dementia" Medilineplus US National Library of Medicne 14 May 2015. Retrieved 27 May 201514www.meriam-webster.com
14.Dementia is an umbrella term for a group of cognitive disorders typically characterized by memory impairment, as well as marked difficulty in the domains of language, motor activity, object recognition, and disturbance of executive function – the ability to plan, organize, and abstract. Generally speaking, dementia is an illness of older adults.1515https:www.cdc.gov/mentalhealth/basics/mental-illness/dementia.htm
15.Is dementia a mental illness? Concepts in legislation are based on a dichotomy between mental infirmity and mental illness that has changed over time. This change is the result of shifting perceptions about the basis of illness and disease and the causation of mental symptoms. Mental health legislation is aimed as much at social control of feared behaviour as protecting the ill/incompetent. Guardianship legislation offers a more holistic response that better meets the patient's needs and could be extended to supplant mental health legislation.1616Hunter Mental Health Services, James Fletcher Hospital, Newcastle, New South Wales, Australia. mdsbt@mail.newcastle.edu.au
16.In this regard, I find that the said AMK has not been adjudged to be of unsound mind to fall under the provisions of the Mental Health Act17 but his condition falls under the provisions of order 32 rule 15 discussed below which covers persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. Accordingly, I find that the originating summons before me is properly before the court, hence my answer to issue number one above is in the negative.17Supra
17.I also find comfort in the express provisions order 2 rule 14 which provides that:-No technical objection may be raised to any pleading on ground of any want of form"
18.Thus, even if I were to be persuaded that the proceedings ought to have been initiated by way of petition as opposed to originating summons, I would be reluctant to dismiss this on a technicality. Perhaps at this juncture it is important to recall with approval the words of Madan, JA, (as he then was) in DT Dobie Co Ltd v Muchina18where he stated that:-18[1982] KLR 1 at page 9:No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so week as to be beyond redemption and incurable by amendment.If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”(Emphasis added)
19.Further, I also find it necessary to recall the words of the court in Dickson Karaba v John Ngata Kariuki & another19 whereby the court stated as follows:-19[2010] eKLR…striking out is a very serious matter, it is draconian and it should be resorted to as an avenue when the cause filed is hopeless or it is meant or intended to abuse the process of the court…"More illuminating on this point is the dicta of Fletcher Moulton LJ in Dyson v Attorney General2020[1911] KB 418.........and the courts have properly considered that this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in causes were the action is an abuse of legal procedure… To my mind, it is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad”. (Emphasis added)
20.On the second issue, I am clear in my mind that this case properly falls under the provisions of order 32 rule 15 of the Civil Procedure Rules, 2010 and therefore my answer to the second issue is in the affirmative and is supported by my reasoning expressed hereunder. The said rule provides that:-The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued"
21.I have given the above rule complete system of thought and in my considered opinion and interpretation, five principles outlined below can be discerned from this rule. These principles are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so. These are:-1.A person must be assumed to have capacity unless it is established that he/she lacks capacity.2.A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.3.A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.4.An act done, or decision made, under the above rule for or on behalf of a person who lacks capacity must be done, or made, in his/ her best interests.5.Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
22.The medical evidence adduced shows clear that the defendant is suffering from senile dementia and is incapable of protecting his interests. At the time of giving directions, both parties agreed that this matter be determined on the basis of the documents filed and secondly by oral submissions by both advocates. The defendants wife or her advocate never submitted medical evidence to counter the available medical records. Her argument is that she has been denied access to her husband, implying that she could not have had him examined under owing to the said denial. Unfortunately neither herself nor her advocate made a formal application before the court asking for court orders either to grant her access or seek the production of the defendant before the court. The proper cause of action would have been for her to move the court by way of a formal application supported by an affidavit so as to give the other party the opportunity to respond and let the application be heard and determined by the court on merits.
23.However, even if both parties had submitted medical evidence confirming their opposing positions or identical positions, would such a position have satisfied the requirements of order 32 rule 15 cited above. I do not think so. The answer to the said question can be found in the procedure provided under order 32 rule 15 of the Civil Procedure Rules, 2010 reproduced above which provides as follows:-The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued"
24.Interpreting a similar provision under the Indian Civil Procedure Rules, the court in Balakrishnan v Balachandran,21 held that the said rule22 is intended to ensure that no man is adjudged a lunatic without proper enquiry, and that the court should hold a judicial inquiry and it may seek the assistance of medical experts. It was pointed out that the only safe course to adopt is to follow strictly the procedure prescribed in order XXXII, rule 15, Civil Procedure Code, and that if the precaution of a judicial inquiry is not observed, a man cannot be declared to be a lunatic (or unfit to protect his interests), and a guardian appointed for him on that basis. A decree passed or orders issued against a defendant in such a case must be considered to be an ex parte decree, and must be set aside. At page 461, the discussing the procedure to be followed by the court in an application such as the one before me the learned Judge observed as follows:-21(1956) 1 mad lj 45922Order XXXII, Rule 15 CPC of the Indian Civil Procedure CodeThat procedure involves a judicial inquiry which consists normally of two parts:(1)questioning the lunatic (or the person in question) by the Judge himself in open court, or in chambers, in order to see whether he is really a lunatic and of unsound mind (or unfit to protect his interests), and(2)as the court is generally presided over only by a layman, to send the alleged lunatic to a doctor for report about his mental condition after keeping him under observation for some days..... When this elementary precaution of a judicial inquiry prescribed by law is not observed, I am afraid that the laws of this country will not allow a man to be declared a lunatic and a guardian appointed for him, on such basis."
25.To me, the authoritative position stated by the Indian High Court in the above cited case represents the correct interpretation of order 32 rule 15 of the Civil Procedure Rules. The above rule contemplates a judicial inquiry. The words uses in the rule are"to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued"
26.This is an inquiry prescribed by the law under the said rule and as correctly interpreted in the above decision. Two stages must be complied with to satisfy the said rule (a) questioning the person by the court and (b) medical evidence. The first part has not been complied with hence no inquiry has been held as provided under the said rule. My answer to issue number three is clear, order 32 rule 15 contemplates in inquiry by the court.
27.In yet another Indian case ie, Ramanathan Chettiar v Somasundararn23an application under order XXXII, rule 15 Civil Procedure Rules for the appointment of a guardian ad litem was filed on the ground that the defendant became mentally infirm subsequent to the institution of the suit. The court, instead of holding a regular judicial enquiry contemplated under rule 15, thought that it was sufficient to rely on the previous history of the litigation, and on the opinion it formed after looking at the defendant, and eliciting answers to some questions. Pandrang Rao, J., held that there was no enquiry of the kind contemplated by law, and that the order must be deemed to be one in the irregular exercise of his jurisdiction. The learned Judge held that in the absence of a record of the questions and answers, it was impossible for the court of revision to decide whether the conclusion arrived at on that particular aspect was justifiable and that the enquiry was un-judicial and unsatisfactory. I respectfully agree with this decision of the learned Judge.23AIR 1941 Mad 505
28.The above authority adds another important necessary detail which must be followed in the judicial inquiry. The questions and answers in the inquiry must be recorded and must form part of the record to satisfy the requirement that a proper inquiry was conducted as contemplated under the above rule.
29.Thus, guided by the above authorities and the express provisions of order 32 rule 15, I find that it is necessary for this court to conduct a judicial inquiry and form an opinion that the person in question is incapable of protecting his/her own interests. This position was reiterated in the case of Duvvuri Rami Reddi v Duvvudu Papi Reddi and ors.24 where the court authoritatively stated that after evaluating the authorities, the following principles emerge which I entirely agree with:-24AIR 1963 AP 160a.Order 32, rule 15 places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules 1 to 14.b.Order 32 rule 15 applies not only to a person adjudged to be of unsound mind, but also to a person of weak mind.c.Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the court must hold a Judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the suit.d.Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.e.Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the court on inquiry.f.Where the question of unsoundness of mind arises not only under order XXXII, rule 15 of the Civil Procedure Code but is also one of the issues in the suit, the court has ample jurisdiction to enquire into that question, and for that purpose seek medical opinion.g.The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers, and as courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken.h.Of course, the opinion, of a doctor, as is the opinion of any other expert, under the Evidence Act, is only a relevant piece of evidence.i.The court may also compel the attendance of the alleged person before it, and to submit himself for medical examination. If the alleged person is in custody, the court may direct the next friend or any other person having custody to produce him before the medical expert for examination.j.Where the precaution of judicial enquiry is not observed, the person cannot be declared lunatic, and a guardian cannot be appointed for him.k.When a person is adjudged as being of a lunatic or unsound mind irregularity and improperly, and notice was not served on him, and a guardian alone was allowed to appear and defend the suit and decree was passed owing to the guardian not putting up a proper defence, the alleged lunatic can treat the decree against him as an ex parte decree, and have it set aside under the provisions of the Civil Procedure Rules.
30.Applying these principles to the facts of the present case, I find that for the court to find that prima facie, the said AMK is incapable of protecting his interests, this court is required to hold an inquiry as provided under order 32 rule 15 of the Civil Procedure Rules, 2010 and strictly follow the procedure stipulated in the above authorities, that is, examine the said person in court and consider the medial evidence. The said two fold procedure has not been done, yet it is prescribed under the law. It is necessary to have a full-fledged enquiry, and after the inquiry the court will then decide whether the said AMK suffers from infirmity of mind, and whether it is of such a character that prevents him from safeguarding his interests.
31.Accordingly, I find that since no inquiry has been conducted, the orders sought at this stage are premature and if granted at this stage, the same will offend the clear provisions of order 32 rule 15 of the Civil Procedure Rules 2010 and can in my view be challenged on that ground alone. I however find that the interests of justice will not be met if I dismiss the application. Accordingly in the interests of justice and to enable the court to wholly and effectively determine the issue, and fully satisfy the requirements of order 32 rule 15 of the Civil Procedure Rules 2010, I hereby make the following orders:-a.That the said AMM be produced in court for the purposes of an inquiry by the court for the court to establish whether by reason of unsoundness of mind or mental infirmity, he is incapable of protecting his interests.b.That pursuant to the above order, the parties herein are directed to take a date for the said judicial examination/inquiry.c.No orders as to costs.Orders accordinglyRight of appeal 30 days
SIGNED, DELIVERED AND DATED AT NYERI THIS 13TH DAY OF JUNE, 2016JOHN M. MATIVOJUDGE
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Cited documents 6

Act 3
1. Constitution of Kenya Interpreted 30955 citations
2. Civil Procedure Act Interpreted 21434 citations
3. Mental Health Act Interpreted 367 citations
Judgment 3
1. D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) Explained 271 citations
2. Loghan Njenga Waweru v Teresia Nyokabi Karanu & another [2014] KEHC 1766 (KLR) Explained 2 citations
3. IN THE MATTER OF ELIUD MAINA WANJOHI – (DECEASED) (? 18 of 2013) [2013] KEHC 3372 (KLR) (16 May 2013) Explained 1 citation

Documents citing this one 11

Judgment 11
1. GMG & another v IMN; Ng’ang’a (Interested Party) (Petition 27 of 2019) [2023] KEHC 667 (KLR) (9 February 2023) (Judgment) Explained
2. In re AWK (A Person Suffering from Mental Disorder) (Family Miscellaneous Civil Case E227 of 2021) [2024] KEHC 8012 (KLR) (Family) (21 June 2024) (Judgment) Applied
3. In re BMM (Patient) (Petition E009 of 2021) [2023] KEHC 22960 (KLR) (29 September 2023) (Ruling) Explained
4. In re FKL (Miscellaneous Application E008 of 2023) [2024] KEHC 3112 (KLR) (19 March 2024) (Ruling) Explained
5. In re Francis Kiprotich Langat (Suing Through Next Friend) (Miscellaneous Application E008 of 2023) [2023] KEHC 26673 (KLR) (13 December 2023) (Ruling) Followed
6. In re MOO (Miscellaneous Application E004 of 2023) [2023] KEHC 25476 (KLR) (14 November 2023) (Judgment) Explained
7. In re SMK (Miscellaneous Application 21 of 2022) [2023] KEHC 3734 (KLR) (27 April 2023) (Judgment) Explained
8. Kithinji & another v Mutungi & 3 others (Constitutional Petition E004 of 2022) [2023] KEELC 15981 (KLR) (8 March 2023) (Ruling) Explained
9. Ntiyeine v Kenya Pipeline Company Limited & another (Employment and Labour Relations Cause E782 of 2022) [2024] KEELRC 1857 (KLR) (16 July 2024) (Ruling) Explained
10. Osadho v KCB Kenya Ltd & another (Civil Appeal E040 of 2022) [2024] KEHC 1907 (KLR) (29 February 2024) (Judgment)