1.The Applicant approached this court vide Notice of Motion dated 19th October 2023 seeking the following orders;1.Spent2.That the applicant be enjoined in this suit as an interested party.3.That ex-parte in the interim status quo be maintained. The status quo being that account number 030XXXX at Equity Bank in the name of JM Arap S is already frozen as has already been ordered in Eldoret Misc. Crim. Application No. E353 of 2023.4.That the court orders issued on 16.2.2023 be set aside and the interested party be appointed as the guardian/manager of the estate of JMS which powers shall not be to include the power of alienation, sale or transfer of the subject’s movable and immovable assets but powers to manage such assets, plead, prosecute and/or defend any action brought by or against the subject in respect of any of the assets forming part of the estate.5.That the applicants be ordered to refund the total amount of money withdrawn from account number 030XXXX at Equity bank belonging to JMS.6.That costs of the application be in the cause.
2.The Application is premised on the grounds set out therein and the contents of the supporting affidavit sworn by the Applicant.
3.The Applicant contends that she is the legal wife to JMS and that her consent was not sought by the applicants while obtaining the court order issued on 16.02.2023. According to her, the applicants hid material facts from the court thus making the court to arrive at an unjust decision.
4.The applicant averred that the said JMS has been working as an administrative officer until when he retired at the age of 60 years in the year 2020.
5.The applicant further averred that throughout the years the 1st applicant has been trying to make withdrawals from the bank account number 012XXXXat National Bank and the same has been stopped on numerous occasions but he would still access the same since he has taken hold of the original identity card of JMS.
6.It was the applicant’s averment that as a result of the 1st applicant’s meddling with the estate of JMS to the detriment of his family members, some altercations have led to violence when the said 1st applicant assaulted the applicant.
7.The 1st applicant upon realizing that he had been barred from accessing the known bank account for JMS at National Bank, he devised a method of opening another account at equity bank wherein the retirement benefits of JMS were deposited. Upon being granted the court orders to manage the assets of the said JMS, the 1st applicant immediately withdrew a total of Kshs. 2,800,000/= to the detriment of the said JMS, the applicant and their children.
8.The applicant averred that upon realizing that the retirement benefits of the said JMS did not reflect in his National Bank Account but to an unknown bank account at Equity Bank, she then reported the matter at the DCI offices in Eldoret which investigations led to the freezing of the said bank account at Equity.
9.In response to the application, the 1st respondent averred that the court orders obtained by the applicant from this honourable court on 19.10.2023 were obtained through material non-disclosure and misrepresentation of several facts. It was his case that the orders issued on 21.7.2023 in Eldoret Misc. Application No. E353 of 2023 by Hon. D. Mikoyan (CM) were vacated by the said court on 4.10.2023 way before the application dated 19.10.2023 was filed contrary to crafty assertions made in paragraph 11 of her supporting affidavit dated 19.10.2023.
10.The 1st respondent averred that the applicant approached the court with unclean hands by not disclosing that she had left one JMS and has been married to one HT for the last twenty years since 2004 to date. Further that all children listed in a letter dated 111.10.2022 belong to one HT and not JMS.
11.The 1st respondent contended that he has been taking care of his brother since he became sick in the year 1999 and he stays with him at his place. That the applicant came into the picture when she got information that the retirement benefits of the said JMS were released.
12.The 1st respondent equally filed submissions in support of his response, in which he essentially submitted that pension monies are not matrimonial property and that if the applicant is appointed as he legal guardian of JM, the court risks the property being misused by a party who has never cared to see the said Joseph Malakwen.
Analysis & Determination
13.The court has carefully considered the application, response and submissions made by the respondent’s counsel. It is not in dispute that one JMS is suffering from a mental disorder. A letter dated 8th February, 2023 was adduced in evidence from Moi Teaching and Referral Hospital to confirm that fact. Section 2 of the Mental Health Act Cap 248 provides that:
PARA 14.A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”PARA 15.The court is empowered to grant orders sought by the application in relation to custody, management and guardianship under Section 26 of the Mental Health Act Cap 248 which provides:SUBPARA (1)) The court may make orders:SUBPARA a)For the management of the estate of any person suffering from mental disorder, andSUBPARA b)For the guardianship of any person suffering from mental disorder by any near relative or by any other suitable personSUBPARA c)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.SUBPARA d)Where upon inquiries 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 just 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.”
16.Additionally, the authority to manage affairs of an estate of a patient is donated under Section 27 of the Mental Health Act whereas Section 28 of the same Act provides for management of the subject's estate.
17.In applying Section 26 and 27 of Cap 248, I am guided by the case of Re N M K (2017) eKLR where it was held as follows: -In considering an application brought under sections 26 and 27 of the Mental Health Act, the Court is guided by three main factors:There must be medical evidence warranting the determination by the Court that the Subject suffers from mental disorder;
18.The person to be appointed to be either a Guardian or Manager must be fit to be so appointed;The Court must be satisfied that a proposed Manager will utilize her powers for the benefit and welfare of the Subject.”
20.The similar position was held in in re Estate VFM (Patient)  eKLR, the court held that:a)For the court to grant the application for appointment of a manager of the estate and guardian to the patient, the Petitioner/Applicant is duty bound to prove that:b)There exists medical proof by show of evidence confirming that the subject suffers from mental disorder.c)The petitioner/Applicant seeking to be appointed as manager or guardian must be legally fit to be so appointed.d)That due to the subject’s mental disorder, he or she is incapable of managing his/her own affairs independently and responsibly.e)That the proposed manager/guardian will manage the subject’s property effectively and efficiently for the benefit of the estate and welfare of the subject.
21.The overall guiding principal in the application of all these factors is that it must be in the best interest of the subject.
22.Based on the pleadings and the evidence presented, I a persuaded that the said Joseph Malakwen Samoei lacks the mental capacity which my view falls within the definition of Section 2 Cap 248. The same has affected his cognition and the ability to take care of his affairs or of himself.
23.The issue having been settled; I shall then turn to determine whether the interested party should be appointed as guardian/ manager to the patient and the orders issued on 16.2.2023 appointing the respondents as the guardians be set aside. Section 26 of the Act as mentioned above, gives court the power to make an order regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable but giving preference to a relative.
24.In the present case, the applicant averred that she is the legal wife of the said JMS having gotten married to him on 17.8.1991. I have however noted that the applicant has not indicated anywhere or proved cohabitation with the patient in the recent past and visited him where is ordinarily resides. The 1st respondent averred that the interested third party applicant left the patient and married one Hillary Tuwei, a fact that has not been disputed. The 1st respondent further averred that he has been taking care of his brother and that he has always accompanied him whenever he is going to collect his salary.
25.There is no indication from the applicant that he has ever been available for the patient to take good care of him. She has only relied on the fact that they were married years ago.
26.Having said so, it is clear that the Applicant has not received the full consent of the rest of the patient’s family. For the court to intervene in the management and control of the patient’s properties and estate the court has to put into consideration the provisions of Section 28 through to Section 39 of the Mental Health Act. In particular, Section 33 requires a manager(s) so appointed by the court to furnish an inventory and annual accounts to the court and the Public Trustee.
27.In the upshot, the court finds it proper to appoint the respondents to be the managers of the estate of the patient as the third party applicant becomes the patient’s guardian as enumerated hereunder: -i.That the third party/applicant is hereby appointed as the guardian of JMS, the patient herein suffering mental disorder in as far as the patient’s personal and medical care and maintenance is concerned.ii.That respondents are jointly appointed managers of the estate of JMS and do furnish the court with an inventory of the estate of JMS of all his assets and liabilities within 30 days from today’s date for purposes of determination of the management of the patient’s estate.It is so ordered.