In re EWG (Miscellaneous Case E099 of 2024) [2024] KEHC 16105 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KEHC 16105 (KLR)
Republic of Kenya
Miscellaneous Case E099 of 2024
MA Odero, J
December 20, 2024
IN THE MATER OF EWG
In the matter of
VNK
1st Applicant
JMK
2nd Applicant
Judgment
1.Before this Court is the application dated 12th November 2024 by which the Applicants VNK and JMK seek the following orders:-
2.The application which was premised upon Section 26(1) A and B of the Mental Health Act, Cap 248, Laws of Kenya Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of law was supported by the Affidavit of even date sworn by the Applicants.
3.The matter was canvassed by way of Vive Voce evidence on the virtual platform.
4.The Applicants told the court that they are both the biological children of EWG (the subject herein). They state that the subject suffered a stroke in the year 2021 and that she is also suffering from dementia. That as a result the subject is unable to manage her own affairs. The subject currently lives with the 1st Applicant in her home in Ruiru, Kiambu County.
5.The Applicants pray to be appointed as legal guardians for the subject and managers of her estate.
Analysis And Determination
6.Section 26 of the Mental Health Act, Cap 248 provides for the circumstances in which a court may make orders for the management and maintenance of patient (subject) as follows:-
7.I have considered the application before this court, the evidence adduced by the witnesses as well as the documents annexed to the Petition. In order to warrant the appointment of a legal guardian, it must be shown that the subject suffers from a mental disorder which renders him/her incapable of managing his/her own affairs.
8.I have perused the medical report dated 1st October 2024 prepared by Dr. Violet A Okech Consultant Psychiatrist attached to the Kenyatta National Hospital in Nairobi. The report indicates that the subject is an elderly lady in fair condition but was found to be incoherent and rambling in speech often talking to herself.
9.The Report further confirmed that the subject has suffered a hypertensive stroke in the year 2021 and that she suffers from moderately severe dementia. The subject was noted to be incontinent, unable to feed herself and spends most of her day sleeping. The doctor opined that the subject “is mentally and physically INCAPABLE of managing her estate and is INCAPABLE of handling her financial and legal affairs.”
10.I was able to see the subject via the online platform. She was an elderly lady lying prone on a sofa. She was mumbling to herself incessantly and did not answer any questions put to her. It was quite obvious to this Court that the subject suffers from a mental disability.
11.The other child of the subject namely CK as well as the subject’s husband SKG both testified in the matter. They confirmed that they were aware of and had no objection to this current application. Indeed PW5 told the court that the family had held a meeting and nominated the two applicants to file this application for legal guardianship.
12.“In the case of RE N. M. K. (2017) eKLR the court in considering what should be bone in mind when making an order for Guardianship stated as follows;-
13.Finally I find merit in this application. Accordingly this court makes thefollowing orders:-1.The subject EWG is declared to be a person suffering from a mental disorder within the terms of Section 26 of the Mental Health Act Cap 248, Laws of Kenya.2.The Applicants VNK and JMK are hereby appointed as joint legal guardians for the subject and managers of the subject’s estate.3.The Applicants as legal Guardians are authorized to operate thesubject’s Bank Account No. 0080101537345, held in the name of EWG at Equity Bank Othaya Branch.(4)No orders on costs.
DATED IN NYERI THIS 20TH DAY OF DECEMBER 2024MAUREEN A. ODEROJUDGE