Introduction
1. Ms Ummy Mohamed Mohamed, (hereafter “Ummy” or “the patient”), is the daughter of Mohamed Mohamed Al-Amin (deceased). Her mother (also deceased) is Teba Mohamed Al-Amin. Ummy has seven siblings; 3 brothers Zubeir, Abdulrehman and Mohamed and four sisters, Abba, Fatuma, Halima and Bai.
2. Ummy was under the care of her sister, Fatuma Mohamed El-Amin, until 19th March 2024, when she passed away. The cause of her death was given as cardiopulmonary arrest due to aspiration pneumonitis. On the demise of Fatuma, Ummy was placed under the care of Abdulrehman Mohamed Mohamed Al-Amin (hereafter “the petitioner” or “Abdulrehman”).
3. The medical reports, which were produced, state that Ummy suffered a stroke sometime in 2022 and is presently bedridden and under 24-hour nursing care. According to the discharge abstract prepared by the Mombasa Hospital, Ummy had, at the time she was discharged, hypertension and was paralyzed on the right side. The doctor ordered that she should continue with physiotherapy at home.
The Petition
4. Abdulrehman Mohamed Mohamed Al-Amin is the brother of Ummy. The Petitioner seeks to be granted the following two orders:-
a. The Petitioner herein be appointed Guardian of the above-named patient Ummy Mohamed Mohamed; and
b. The Petitioner herein be appointed the manager of the estate of the said patient Ummy Mohamed Mohamed.
5. The grounds upon which the petition is based are listed in the body of the said petition and the supporting affidavit sworn on 15th May 2024. The petitioner averred that Ummy has a mental disorder “caused by aphasia caused by stroke and dementia that she has been diagnosed with”. The family intends to protect her estate, as declared by the Hon. Kadhi in Mombasa Kadhi Court Civil Case No. 70 of 2003. Abdulrehman averred that Ummy has no current husband or children and that he is the only one available to care for her interests. He expressed his readiness to step in and take care of Ummy as her guardian and manager of her estate. He further undertook to administer the said estate according to law and to “render a just and true account of such estate whenever required by this Court to do so.” He indicated that the petition was brought in the best interest of Ummy.
6. The petitioner annexed to his affidavit a copy of the patient’s ID card as well as his own, the prognosis made by Dr. Esther Getembu contained in a note dated 24th February 2023, the discharge summary and prescription issued by the Mombasa Hospital, the decree and order issued by Hon Sheikh Twalib, Fatuma Mohamed El-Amin\'s death certificate, and Ummy’s Certificate of Divorce. I have perused the said documents and noted their contents.
Hearing of the Petition
7. The petition was heard on 22nd and 29th July 2024. On the former date, Abdulrehman testified.
8. Abdulrehman testified that he is a businessman residing at Nkrumah Road at Kizingo. The patient is his sister. According to him, Ummy was born disabled. Since his sister’s death, Ummy had been staying with him. The patient had a stroke and was treated at Pandya and Mohamed Hospitals and is now at home receiving therapy. Abdulrehman testified that he had employed a physiotherapist and a speech therapist to take care of her.
9. Abdulrehman further testified that due to her condition, the patient was fed with feeding tubes that had to be changed every month. Ummy is a beneficiary of her father’s and mother’s estates. He averred that rent, some of which is due to Ummy, is received every three months.
10. Based on his testimony, Abdulrehman sought to be appointed guardian ad litem and manager of his sister’s estate.
11. The second witness was Dr Salim Said. He is a psychiatrist based at Port Reitz Sub-county Hospital. Dr Said wrote the report dated 10th July 2024 regarding the patient. He found that the patient had motor aphasia and that she couldn’t speak or walk and was bedridden. He testified that he was unable to confirm if the patient had cognitive impairment as she couldn’t talk and couldn’t, therefore, tell whether she suffered from mental illness.
12. The Court could not interview the patient as he was not brought before it. The Petitioner indicated that bringing the patient to Court was not a viable option as she is bedridden and needs 24-hour nursing care. In the circumstances, the court dispensed with her presence.
13. At the end of the trial the Court directed the Petitioner’s counsel to file written submissions.
Written Submissions of the Petitioner
14. The Petitioner identified 2 issues as coming up for determination, to wit:-
i. Whether the patient’s condition fell under the ambit of the Mental Health Act$1
ii. Whether the Petitioner is best suited to be appointed the guardian and manager of the patient and her estate, respectively.
15. Regarding the 1st question, it was submitted that the World Health Organization defines dementia as a disease that affects memory, thinking and the ability to perform daily duties and that it was also a term for loss of memory, language, problem-solving, and other thinking abilities. It was submitted that due to a stroke, the patient became bedridden and is unable to perform any of her daily functions, necessitating 24-hour care. Due to her condition, it was submitted that she cannot attend to her needs or manage her financial affairs.
16. Reliance was placed on the decision of this Court In re KWG (Misc. Application No E165 of 2022) [2023]KEHC 19539 (KLR) (Family) (4 July 2023). In the said case, the patient suffered 2 pouts of stroke, which resulted in dementia. I was also referred to the decision of the Court in Misc. Application No E039 of 2022.
17. Regarding the second issue, it was submitted that Ummy is a divorcee and has no children. The petitioner is her brother, and she is presently receiving treatment at his home. As his brother, the petitioner is the nearest relative and thus qualified to be her guardian and the manager of her estate.
18. It was thus submitted that the Petitioner be appointed as a guardian of his sister under section 26(1) (b) of the Mental Health Act.
Analysis
19. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:-
1. Whether the patient suffers from mental illness$2 and
2. If so, what order should be issued$3
The Applicable Law
20. Appointment of a manager of the estate of a person with mental illness is made under section 27 of the Mental Health Act, as amended in 2022. A manager’s duty is to safeguard the property of the Patient. The appointment of a Manager must be published in the Kenya Gazette (section 27(4) of the said Act). Any person with probable cause may object to the appointment within 14 days of the publication of the notice. Section 28 (4) of the said Act provides that:-
“a manager shall perform the manager’s duty under this Act responsibly, taking into account the best interests of the estate of the person suffering from mental illness.”
21. Under the Mental Health Act, the application for administration may be made by a “supporter” or “representative” of the person with mental illness, in that order. Although Abdulrehman Mohamed Mohamed Al-Amin is not a “supporter” of the patient, as he wasn’t appointed in writing, it is my finding that being the patient’s sister, he is his “representative” within the meaning of the Act and, therefore, has the locus to file the instant petition.
Analysis of the Facts and the Law
22. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:-
“The Petitioners have sought to be declared as guardians and managers of the patient. To merit the above orders the petitioners must adduce evidence sufficient to satisfy the Court, firstly that the patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the patient is incapable of managing her own affairs.”
23. I would add that the third test is whether the application is in the patient\'s best interest. People with mental illnesses have diminished capacities to manage their affairs, analogous to that of children. Therefore, the court must ensure the application was filed in the patient\'s interest. In addition, the court\'s orders must aim to achieve the said goal.
24. The evidence adduced shows that Ummy Mohamed Mohamed has motor aphasia, which developed after she had a stroke. She is unable to talk. Although the doctor was not able to confirm, as she could not talk, it was his opinion that Ummy appeared to have vascular dementia. Vascular dementia is a mental illness. Given the finding of the doctor and her present situation, it is my view that it is safe to err in favour of a finding that Ummy suffers from a mental illness. Such a finding will be beneficial to her as she will be able to receive treatment.
25. The petitioner averred that Ummy is a beneficiary of his mother’s and father’s estates and receives a portion of the rent accruing to the said estates. Treatment of mental illnesses is expensive. Being ill, the patient may not appreciate the need for treatment nor be able to manage the treatment regime. The appointment of the petitioner as the patient\'s guardian ad litem and also the manager will enable him to access her funds so that he can pay for the nursing care and medication.
26. The Petitioner’s testimony and the medical professional’s report show that the patient cannot manage her affairs. It will, therefore, be in her best interest that managers is appointed to manage her estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible, that his estate is not wasted or lost, and that his interests are protected.
Determination
27. I am satisfied, based on the evidence adduced, that the patient suffered from a stroke, which resulted in motor aphasia, and that she most likely suffers from vascular dementia. Vascular dementia is a mental illness. There is, therefore, a case for the appointment of the petitioner as the guardian ad litem of the patient, Ummy Mohamed Mohamed and the manager of her estate. In the circumstances, I order as follows:-
1. The petitioner, Abdulrehman Mohamed Mohamed Al-Amin, be and is hereby appointed as the guardian ad litem of the patient Ummy Mohamed Mohamed, and also the manager of her estate;
2. Abdulrehman Mohamed Mohamed Al-Amin shall manage the patient’s estate but shall not have the power to sell, charge or otherwise alienate her immovable property without the leave of the Court;
3. Pursuant to section 27(4) of the Mental Health Act, the appointment of the manager/guardian ad litem shall be published in the Kenya Gazette;
4. The manager/guardian ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of his appointment; and
5. I make no orders as to costs.
28. Orders accordingly.
Dated and signed at Mombasa this 20th day of September 2024. Delivered virtually via Microsoft TEAMS.
1. Ms Ummy Mohamed Mohamed, (hereafter “Ummy” or “the patient”), is the daughter of Mohamed Mohamed Al-Amin (deceased). Her mother (also deceased) is Teba Mohamed Al-Amin. Ummy has seven siblings; 3 brothers Zubeir, Abdulrehman and Mohamed and four sisters, Abba, Fatuma, Halima and Bai.
2. Ummy was under the care of her sister, Fatuma Mohamed El-Amin, until 19th March 2024, when she passed away. The cause of her death was given as cardiopulmonary arrest due to aspiration pneumonitis. On the demise of Fatuma, Ummy was placed under the care of Abdulrehman Mohamed Mohamed Al-Amin (hereafter “the petitioner” or “Abdulrehman”).
3. The medical reports, which were produced, state that Ummy suffered a stroke sometime in 2022 and is presently bedridden and under 24-hour nursing care. According to the discharge abstract prepared by the Mombasa Hospital, Ummy had, at the time she was discharged, hypertension and was paralyzed on the right side. The doctor ordered that she should continue with physiotherapy at home.
The Petition
4. Abdulrehman Mohamed Mohamed Al-Amin is the brother of Ummy. The Petitioner seeks to be granted the following two orders:-
a. The Petitioner herein be appointed Guardian of the above-named patient Ummy Mohamed Mohamed; and
b. The Petitioner herein be appointed the manager of the estate of the said patient Ummy Mohamed Mohamed.
5. The grounds upon which the petition is based are listed in the body of the said petition and the supporting affidavit sworn on 15th May 2024. The petitioner averred that Ummy has a mental disorder “caused by aphasia caused by stroke and dementia that she has been diagnosed with”. The family intends to protect her estate, as declared by the Hon. Kadhi in Mombasa Kadhi Court Civil Case No. 70 of 2003. Abdulrehman averred that Ummy has no current husband or children and that he is the only one available to care for her interests. He expressed his readiness to step in and take care of Ummy as her guardian and manager of her estate. He further undertook to administer the said estate according to law and to “render a just and true account of such estate whenever required by this Court to do so.” He indicated that the petition was brought in the best interest of Ummy.
6. The petitioner annexed to his affidavit a copy of the patient’s ID card as well as his own, the prognosis made by Dr. Esther Getembu contained in a note dated 24th February 2023, the discharge summary and prescription issued by the Mombasa Hospital, the decree and order issued by Hon Sheikh Twalib, Fatuma Mohamed El-Amin\'s death certificate, and Ummy’s Certificate of Divorce. I have perused the said documents and noted their contents.
Hearing of the Petition
7. The petition was heard on 22nd and 29th July 2024. On the former date, Abdulrehman testified.
8. Abdulrehman testified that he is a businessman residing at Nkrumah Road at Kizingo. The patient is his sister. According to him, Ummy was born disabled. Since his sister’s death, Ummy had been staying with him. The patient had a stroke and was treated at Pandya and Mohamed Hospitals and is now at home receiving therapy. Abdulrehman testified that he had employed a physiotherapist and a speech therapist to take care of her.
9. Abdulrehman further testified that due to her condition, the patient was fed with feeding tubes that had to be changed every month. Ummy is a beneficiary of her father’s and mother’s estates. He averred that rent, some of which is due to Ummy, is received every three months.
10. Based on his testimony, Abdulrehman sought to be appointed guardian ad litem and manager of his sister’s estate.
11. The second witness was Dr Salim Said. He is a psychiatrist based at Port Reitz Sub-county Hospital. Dr Said wrote the report dated 10th July 2024 regarding the patient. He found that the patient had motor aphasia and that she couldn’t speak or walk and was bedridden. He testified that he was unable to confirm if the patient had cognitive impairment as she couldn’t talk and couldn’t, therefore, tell whether she suffered from mental illness.
12. The Court could not interview the patient as he was not brought before it. The Petitioner indicated that bringing the patient to Court was not a viable option as she is bedridden and needs 24-hour nursing care. In the circumstances, the court dispensed with her presence.
13. At the end of the trial the Court directed the Petitioner’s counsel to file written submissions.
Written Submissions of the Petitioner
14. The Petitioner identified 2 issues as coming up for determination, to wit:-
i. Whether the patient’s condition fell under the ambit of the Mental Health Act$1
ii. Whether the Petitioner is best suited to be appointed the guardian and manager of the patient and her estate, respectively.
15. Regarding the 1st question, it was submitted that the World Health Organization defines dementia as a disease that affects memory, thinking and the ability to perform daily duties and that it was also a term for loss of memory, language, problem-solving, and other thinking abilities. It was submitted that due to a stroke, the patient became bedridden and is unable to perform any of her daily functions, necessitating 24-hour care. Due to her condition, it was submitted that she cannot attend to her needs or manage her financial affairs.
16. Reliance was placed on the decision of this Court In re KWG (Misc. Application No E165 of 2022) [2023]KEHC 19539 (KLR) (Family) (4 July 2023). In the said case, the patient suffered 2 pouts of stroke, which resulted in dementia. I was also referred to the decision of the Court in Misc. Application No E039 of 2022.
17. Regarding the second issue, it was submitted that Ummy is a divorcee and has no children. The petitioner is her brother, and she is presently receiving treatment at his home. As his brother, the petitioner is the nearest relative and thus qualified to be her guardian and the manager of her estate.
18. It was thus submitted that the Petitioner be appointed as a guardian of his sister under section 26(1) (b) of the Mental Health Act.
Analysis
19. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:-
1. Whether the patient suffers from mental illness$2 and
2. If so, what order should be issued$3
The Applicable Law
20. Appointment of a manager of the estate of a person with mental illness is made under section 27 of the Mental Health Act, as amended in 2022. A manager’s duty is to safeguard the property of the Patient. The appointment of a Manager must be published in the Kenya Gazette (section 27(4) of the said Act). Any person with probable cause may object to the appointment within 14 days of the publication of the notice. Section 28 (4) of the said Act provides that:-
“a manager shall perform the manager’s duty under this Act responsibly, taking into account the best interests of the estate of the person suffering from mental illness.”
21. Under the Mental Health Act, the application for administration may be made by a “supporter” or “representative” of the person with mental illness, in that order. Although Abdulrehman Mohamed Mohamed Al-Amin is not a “supporter” of the patient, as he wasn’t appointed in writing, it is my finding that being the patient’s sister, he is his “representative” within the meaning of the Act and, therefore, has the locus to file the instant petition.
Analysis of the Facts and the Law
22. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:-
“The Petitioners have sought to be declared as guardians and managers of the patient. To merit the above orders the petitioners must adduce evidence sufficient to satisfy the Court, firstly that the patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the patient is incapable of managing her own affairs.”
23. I would add that the third test is whether the application is in the patient\'s best interest. People with mental illnesses have diminished capacities to manage their affairs, analogous to that of children. Therefore, the court must ensure the application was filed in the patient\'s interest. In addition, the court\'s orders must aim to achieve the said goal.
24. The evidence adduced shows that Ummy Mohamed Mohamed has motor aphasia, which developed after she had a stroke. She is unable to talk. Although the doctor was not able to confirm, as she could not talk, it was his opinion that Ummy appeared to have vascular dementia. Vascular dementia is a mental illness. Given the finding of the doctor and her present situation, it is my view that it is safe to err in favour of a finding that Ummy suffers from a mental illness. Such a finding will be beneficial to her as she will be able to receive treatment.
25. The petitioner averred that Ummy is a beneficiary of his mother’s and father’s estates and receives a portion of the rent accruing to the said estates. Treatment of mental illnesses is expensive. Being ill, the patient may not appreciate the need for treatment nor be able to manage the treatment regime. The appointment of the petitioner as the patient\'s guardian ad litem and also the manager will enable him to access her funds so that he can pay for the nursing care and medication.
26. The Petitioner’s testimony and the medical professional’s report show that the patient cannot manage her affairs. It will, therefore, be in her best interest that managers is appointed to manage her estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible, that his estate is not wasted or lost, and that his interests are protected.
Determination
27. I am satisfied, based on the evidence adduced, that the patient suffered from a stroke, which resulted in motor aphasia, and that she most likely suffers from vascular dementia. Vascular dementia is a mental illness. There is, therefore, a case for the appointment of the petitioner as the guardian ad litem of the patient, Ummy Mohamed Mohamed and the manager of her estate. In the circumstances, I order as follows:-
1. The petitioner, Abdulrehman Mohamed Mohamed Al-Amin, be and is hereby appointed as the guardian ad litem of the patient Ummy Mohamed Mohamed, and also the manager of her estate;
2. Abdulrehman Mohamed Mohamed Al-Amin shall manage the patient’s estate but shall not have the power to sell, charge or otherwise alienate her immovable property without the leave of the Court;
3. Pursuant to section 27(4) of the Mental Health Act, the appointment of the manager/guardian ad litem shall be published in the Kenya Gazette;
4. The manager/guardian ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of his appointment; and
5. I make no orders as to costs.
28. Orders accordingly.
Dated and signed at Mombasa this 20th day of September 2024. Delivered virtually via Microsoft TEAMS.