1.Before this court is the petition dated July 24, 2019 by which the petitioner SWM seeks the following orders that:-
2.The petition was supported by the affidavit of even date sworn by the petitioner. The matter was canvassed by way of vive voce evidence on the virtual platform.
3.The petitioner told the court that the subject herein JMM is his wife of fourty two (42) years. He told the court that the subject was diagnosed with ‘dementia’ in the year 2005. That as a result the subject is not in a position to manager her own affairs.
4.The petitioner states that he has had to hire two (2) full time carers to look after the subject as well as a physiotherapist. He now seeks to be appointed as the guardian for the subject and manager of her affairs.
Analysis and Determination
5.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 a patient (subject) as follows:-
6.I have considered the petition before the court, the evidence adduced before the court as well as the documents annexed to the petition. In order to warrant the appointment of legal guardian it must be shown that the subject suffers from a mental incapacity rendering her incapable of managing her own affairs.
7.The petitioner told the court that the subject who is his wife has been ill since the year 2005. Annexed to the petition is a copy of their marriage certificate serial number xxxxx (Annexture SWM’1’)
8.I have perused the medical report dated March 14, 2016 prepared by Dr D R Mukiri Githegi a Consultant Physician/Cardiologist. The reports indicates that the subject suffers from alzheimers dementia. The doctor indicates that the subject requires full time care.
9.I was able to see the subject online. She was an elderly frail lady wrapped in a blanket. She clearly had no comprehension of the court’s proceedings. Based on the medical report and my own observation I find that the subject does suffer from a mental disability rendering her incapable of managing her own affairs.
10.The subject four (4) adult children have all signed consents confirming that they are aware of and have no objection to this petition.
11.Three of the subjects children namely:-
all testified in court. They all confirmed that their mother is unwell and is not in a position to manage her estate. They all gave consent to this petition filed by their father.
12.Finally I do find merit in this petition and hereby make the following orders:-(1)The subject JMM is declared to be a person suffering from a mental disorder within the terms of section 26 of the Mental Health At, Cap 248 Law of Kenya.(2)The petitioner SWM is appointed as the “guardian of the subject and manager of her estate.”