1.Before this Court for is the Petition dated 12th May 2022 in which the Petitioners Eutychus Nyoike and Gladwell Nyambura seek for orders That:-
2.The Petition was supported by an Affidavit dated 11th April 2022 sworn by Eutychus Nyoike the 1st Petitioner which Affidavit was notarized by a Notary Public in Baltimore, Maryland, USA. The Petition was canvassed by way of oral evidence on the virtual platform.
3.The Petitioners are the children of the Subject RMMN. They told the court that the Subject suffers from dementia and as a result is not able to manage her own affairs. The Subject currently resides with her children in the USA.
4.It was averred that the Subject owned rental properties in Nairobi but due to her deteriorating mental state, she cannot recall where her properties are located and is unable to manage the same.
5.The Petitioners seek to be appointed as the Guardians of the Subject to enable them identify, collect and protect her estate.
Analysis and Determination
6.I have carefully considered the Petition filed by the 2nd Petitioner, the Replying Affidavit on record as well as the written submissions filed by both parties. In order for a Petition seeking management of an estate to be granted it must be proved that the patient (Subject) is suffering from a mental disorder which renders him/her incapable of managing his/her own affairs.
7.Section 26 of the Mental Health Act 248 Laws of Kenya provides for the circumstances under which a court may make orders for the Guardianship of a Subject (patient) as follows:
8.In the case of In Re N.M.K. (2017) eKLR, the Court considered what should be borne in mind when an application is made under Section 26 and 27 of Cap 248 and as follows”-
9.The Petitioners both told the court that the Subject who is a Kenyan Citizen is suffering from dementia. That this has affected her capacity to manage her own affairs.
10.I have perused the Medical Report prepared on 28th July 2021 by DR Burnie of the Neuro Diagnostic Centre in Pennsylvania USA. Upon examination, the patient was found to have poor orientation, poor insight and poor judgment. The Subject was diagnosed with “moderate to several Alzheimers dementia”.
11.I was able to see and speak to the Subject online. She was an elderly lady who appeared confused. She confirmed that the Petitioners were her children and indicated that she had no objection to their petition.
12.On the basis of the Medical Report I find that the Subject suffers a Mental Disability under Section 26 of the Mental Health Act. She is not in a positon to manage her own affairs. The petitioners who are the children of the Subject, and who are currently providing for her medical care are best placed to be appointed as Guardians and Managers of the Subject affairs.
13.I find merit in the Petition and I do allow the same. In conclusion, this court makes the following orders –1.The Subject RMMN is declared to be a person suffering from a mental disorder within the meaning of the Mental Health Act Cap 248, Law of Kenya.2.The Petitioners Eutychus Nyoike and Gladwell Nyambura are appointed as joint Guardians for the Subject.3.The Petitioners Eutychus Nyoike and Gladwell Nyambura are appointed as joint managers of the Estate of the Subject.4.No orders on costs.