1. The application herein, by way of Chamber Summons dated 29 th January 2026 is filed under sections 26, 27, & 28 of the Mental Health Act (Cap. 248) Laws of Kenya and order 32 Rules 1 to 15 of the Civil Procedure Rules seeking orders that:
a. The applicant Abubakar Mwandiga Ngasho be appointed as guardian Ad Litem and next friend of N.N. a person of unsound mind for purposes of instituting, prosecuting and conducting legal proceedings on behalf of N.N.
b. Upon grant of the first order, the applicant be at liberty to institute and prosecute the intended suit on behalf of N.N.
c. Costs be in the cause.
2. The grounds in support of the application as laid down on the face thereof and expounded in the affidavit of the applicant Abubakar Mwandiga Ngasho Kadenge sworn on 30 th January 2026 are as follows.
3. The applicant is deposes that he is a nephew of the subject. The subject has a mental illness described as chronic Schizophrenia, a chronic relapsing brain disease as described by Dr. Charles Mwangome, consultant psychiatrist in his report dated 27 th August 2025. The subject has suffered from the illness for the last ten years and Dr. Mwangome indicates in the report that this is a permanent mental disability. The subject has been in and out of Portreitz Mental Unit and at times defaulted on his medication. He has never been stable and never been married. He has been dependent on others for his daily upkeep and livelihood. He has a habit of chewing “ muguka” a psycho-stimulant.
4. When spoken to by the doctor he was unkempt and was speaking nonsense with inappropriate laughter. It was difficult to have a rapport with him. His orientation to time and place was poor. He was poor in activities of daily living. He had to be bathed at times because he was unaware of his personal hygiene.
5. The subject is unable to lead an independent life and will depend on others for his daily upkeep and livelihood. He cannot follow court proceedings.
6. According to the applicant, the subject was involved in a road traffic accident on 7 th May 2025 and sustained injuries for which compensation is to be sought. In the circumstances, it is necessary that a guardian Ad litem be appointed to safeguard and protect his legal interests. The applicant is his caregiver and prays that he be appointed as such under Order 32 Rule 15 of the CPR due to the subject’s unsoundness of mind.
7. The applicant has provided a police abstract dated 16 th May 2025 from Rabai Traffic Base, Mazeras, to show that indeed an accident involving the subject was reported to the police station.
8. The applicant indicates that he is willing to act as guardian Ad litem, next friend and manager for the subject for the duration of the proceedings and to act in good faith and in his best interests. He has made available a copy of a letter from the area assistant chief, mwatate sub-location, Mwatate location, Kasemeni Division in Samburu Sub-County of Kwale County from where they hail as confirmation that he is the next of kin of the subject.
9. The application is ex-parte and the issues for determination are:
i. Whether the subject should be declared a person with mental illness pursuant to the Mental Health Act (Cap 248) Laws of Kenya.
ii. Whether the applicant should be appointed as representative and manager of the estate of the subject.
10. The first issue to consider is whether the subject should be declared as suffering from mental illness pursuant to the Mental Health Act (Cap 248) Laws of Kenya and therefore in need of appointment of a representative of his affairs and manager of his estate.
11. A person with mental illness is defined under section 2 of the Act as follows:
“person with mental illness” means a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes—
(a) a person diagnosed with alcohol or substance use disorder; and
(b) a person with suicidal ideation or behaviour”
12. I have not immediately found definition of the phrase “mental illness” in the Act. It would appear that the failure to provide such a definition was deliberate in order to leave it to the diagnosis of a qualified mental health practitioner. So that upon a diagnosis by a qualified mental health practitioner that a person has a mental illness, then such a person is deemed as such and is brought under the operation of the Mental Health Act.
13. It is apparent from Dr. Mwangome’s report that the subject is a person with mental illness as per section 2 of the Mental Health Act and further that due to that medical condition he is incapable of managing his own affairs. No evidence to the contrary has been produced. The doctor’s report is thus conclusive on the mental status and incapacity of the subject and this court so finds.
14. On whether the applicant should be appointed representative and manager of the estate of the subject of the subject, section 3K of the Act provides for the legal capacity of a person with mental illness thus:
S. 3K. “A person with mental illness has a right to recognition before the law and shall enjoy legal rights on an equal basis with other persons in all aspects of life.”
15. In that case, a person with mental illness is deemed capable as any other person of making his or her decisions unless otherwise when the person can seek the assistance of another as provided for under the Act. The Act provides that such a person can appoint another to act as his supporter under section 3I(1) and or where he is not capable of such appointment, then under section 3I(5) and (6) a representative can act on his behalf as follows:
“S. 3I(1) A person with mental illness may appoint a person to act as that person’s supporter for the purposes of this Act.”
(2) ...
(5) Where a person with mental illness is unable to appoint a supporter under subsection (1), the representative of the person may represent the person with mental illness for the purpose of treatment and care under this Act.
(6) A supporter or representative of a person with mental illness, as the case may be, may appoint another person to represent the person with mental illness in any complaint procedure or appeal.
16. A supporter is defined in section 2 as follows:
“supporter” means a person appointed under section 3I by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness;”
17. It would appear that the subject herein is incapable of appointing a supporter and therefore the Act provides for a person in the position of the applicant herein as a “representative” and defines the person as follows:
“representative” means –
a) a spouse of that person, or if unable or unwilling;
b) the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling;
c) a parent of that person, or if unable or unwilling;
d) a relative of that person, or if unable or unwilling; or
e) a person under whose care or charge the person with mental illness is;”
18. Given the chronological manner in which the persons who can be such a representative are listed and the use of the phrase “or if unable or unwilling”, I find that the list provides the order of priority or preference to which the persons to be appointed as representative should be considered. So that, in order to move to the next individual, it should be shown that the prior individual(s) is unable or unwilling to be such a representative. In the present case, the applicant falls in paragraph (c), that of a relative.
19. Order 32 of the Civil Procedure Rules makes provision for appointment of a person as next friend and guardian Ad Litem for a person with mental illness for purposes of suits by or against such a person. It has been deposed by the applicant herein that he wishes to institute a suit for compensation of the subject for injuries sustained in a road traffic accident.
20. I have seen a copy of the police abstract indicating that the subject was involved in a road traffic accident. In that case, he has an enforceable cause of action that may, if successful, lead to some property being available to his estate. I am satisfied that the applicant has made out a case before this court that the subject is incapable of conducting his case to enforce his right of action to sue for compensation for injuries arising out of a road traffic accident and therefore is in need of a next friend and guardian Ad Litem .
21. The care and administration of the property of a person with mental illness is then provided for under Part XII of the Mental Health Act. Section 26 of the Act provides for how an application for the management of the estate of a person with mental illness should be made.
S. 26. Application for administration
(1) An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—
(a) a supporter of the person with mental illness; or
(b) the representative of the person where the person with mental illness has not appointed a supporter.
(2) An application under subsection (1) shall be submitted together with an affidavit setting out—
(a) the grounds upon which the application is made;
(b) the full particulars as to the property and relatives of the person to whom it relates; and
(c) a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.
(3) A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—
(a) person in respect of whom the application is made; or
(b) where an application is made by a supporter to the representative of the person with mental illness.
(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given.
(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.
(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—
(a) court to examine the person; or
(b) person to be examined by a qualified registered mental health practitioner.
22. Section 26 of the Act therefore gives the court the power to make an order regarding management of the estate of any person with mental illness to any relative or any person suitable though preference will be given to a relative.
23. Section 27 of the Act provides that the court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness while section 28 of the Act provides for the duties of the manager of the estate of a person with mental illness which the applicant herein should apprise himself.
24. The applicant has stated that he is a nephew of the subject. The supporting affidavit and the letter from the assistant chief do not provide any information on where the subject’s parents are. The report by the psychiatrist indicates that he never got married. I would therefore presume that he has no child. The applicant states that he has the consent of his (the applicant’s) family members but without providing any useful information on where the subject’s parents are and if available, whether they are unable or unwilling to take up the guardianship. However, I note that there is no evidence or record challenging the granting of the prayers sought in the application. Being a nephew of the subject, the applicant is thus a relative of the subject.
25. I find the application merited and it is hereby allowed in the following terms:-
a) That the subject herein NN is hereby declared incapable of conducting his own affairs and is in need of a representative, next friend and Guardian Ad Litem.
b) That the applicant herein is appointed a representative, next friend and Guardian Ad Litem of the subject in all his affairs including the intended court case as well as the manager of his estate.
c) The order herein should be served through the area assistant chief, upon, if available, the parent, brother or sister of the subject and an affidavit of service filed in court by the representative to confirm that it was so served or if not, that the same was not feasible for reasons stated.
d) That there will be no order as to costs.
26. Orders accordingly.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Applicant.
Ummu (Ms): Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
KWALE HC MISC. APPLN NO. E001/20247 guardian ad litem of mental patient
a. The applicant Abubakar Mwandiga Ngasho be appointed as guardian Ad Litem and next friend of N.N. a person of unsound mind for purposes of instituting, prosecuting and conducting legal proceedings on behalf of N.N.
b. Upon grant of the first order, the applicant be at liberty to institute and prosecute the intended suit on behalf of N.N.
c. Costs be in the cause.
2. The grounds in support of the application as laid down on the face thereof and expounded in the affidavit of the applicant Abubakar Mwandiga Ngasho Kadenge sworn on 30 th January 2026 are as follows.
3. The applicant is deposes that he is a nephew of the subject. The subject has a mental illness described as chronic Schizophrenia, a chronic relapsing brain disease as described by Dr. Charles Mwangome, consultant psychiatrist in his report dated 27 th August 2025. The subject has suffered from the illness for the last ten years and Dr. Mwangome indicates in the report that this is a permanent mental disability. The subject has been in and out of Portreitz Mental Unit and at times defaulted on his medication. He has never been stable and never been married. He has been dependent on others for his daily upkeep and livelihood. He has a habit of chewing “ muguka” a psycho-stimulant.
4. When spoken to by the doctor he was unkempt and was speaking nonsense with inappropriate laughter. It was difficult to have a rapport with him. His orientation to time and place was poor. He was poor in activities of daily living. He had to be bathed at times because he was unaware of his personal hygiene.
5. The subject is unable to lead an independent life and will depend on others for his daily upkeep and livelihood. He cannot follow court proceedings.
6. According to the applicant, the subject was involved in a road traffic accident on 7 th May 2025 and sustained injuries for which compensation is to be sought. In the circumstances, it is necessary that a guardian Ad litem be appointed to safeguard and protect his legal interests. The applicant is his caregiver and prays that he be appointed as such under Order 32 Rule 15 of the CPR due to the subject’s unsoundness of mind.
7. The applicant has provided a police abstract dated 16 th May 2025 from Rabai Traffic Base, Mazeras, to show that indeed an accident involving the subject was reported to the police station.
8. The applicant indicates that he is willing to act as guardian Ad litem, next friend and manager for the subject for the duration of the proceedings and to act in good faith and in his best interests. He has made available a copy of a letter from the area assistant chief, mwatate sub-location, Mwatate location, Kasemeni Division in Samburu Sub-County of Kwale County from where they hail as confirmation that he is the next of kin of the subject.
9. The application is ex-parte and the issues for determination are:
i. Whether the subject should be declared a person with mental illness pursuant to the Mental Health Act (Cap 248) Laws of Kenya.
ii. Whether the applicant should be appointed as representative and manager of the estate of the subject.
10. The first issue to consider is whether the subject should be declared as suffering from mental illness pursuant to the Mental Health Act (Cap 248) Laws of Kenya and therefore in need of appointment of a representative of his affairs and manager of his estate.
11. A person with mental illness is defined under section 2 of the Act as follows:
“person with mental illness” means a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes—
(a) a person diagnosed with alcohol or substance use disorder; and
(b) a person with suicidal ideation or behaviour”
12. I have not immediately found definition of the phrase “mental illness” in the Act. It would appear that the failure to provide such a definition was deliberate in order to leave it to the diagnosis of a qualified mental health practitioner. So that upon a diagnosis by a qualified mental health practitioner that a person has a mental illness, then such a person is deemed as such and is brought under the operation of the Mental Health Act.
13. It is apparent from Dr. Mwangome’s report that the subject is a person with mental illness as per section 2 of the Mental Health Act and further that due to that medical condition he is incapable of managing his own affairs. No evidence to the contrary has been produced. The doctor’s report is thus conclusive on the mental status and incapacity of the subject and this court so finds.
14. On whether the applicant should be appointed representative and manager of the estate of the subject of the subject, section 3K of the Act provides for the legal capacity of a person with mental illness thus:
S. 3K. “A person with mental illness has a right to recognition before the law and shall enjoy legal rights on an equal basis with other persons in all aspects of life.”
15. In that case, a person with mental illness is deemed capable as any other person of making his or her decisions unless otherwise when the person can seek the assistance of another as provided for under the Act. The Act provides that such a person can appoint another to act as his supporter under section 3I(1) and or where he is not capable of such appointment, then under section 3I(5) and (6) a representative can act on his behalf as follows:
“S. 3I(1) A person with mental illness may appoint a person to act as that person’s supporter for the purposes of this Act.”
(2) ...
(5) Where a person with mental illness is unable to appoint a supporter under subsection (1), the representative of the person may represent the person with mental illness for the purpose of treatment and care under this Act.
(6) A supporter or representative of a person with mental illness, as the case may be, may appoint another person to represent the person with mental illness in any complaint procedure or appeal.
16. A supporter is defined in section 2 as follows:
“supporter” means a person appointed under section 3I by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness;”
17. It would appear that the subject herein is incapable of appointing a supporter and therefore the Act provides for a person in the position of the applicant herein as a “representative” and defines the person as follows:
“representative” means –
a) a spouse of that person, or if unable or unwilling;
b) the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling;
c) a parent of that person, or if unable or unwilling;
d) a relative of that person, or if unable or unwilling; or
e) a person under whose care or charge the person with mental illness is;”
18. Given the chronological manner in which the persons who can be such a representative are listed and the use of the phrase “or if unable or unwilling”, I find that the list provides the order of priority or preference to which the persons to be appointed as representative should be considered. So that, in order to move to the next individual, it should be shown that the prior individual(s) is unable or unwilling to be such a representative. In the present case, the applicant falls in paragraph (c), that of a relative.
19. Order 32 of the Civil Procedure Rules makes provision for appointment of a person as next friend and guardian Ad Litem for a person with mental illness for purposes of suits by or against such a person. It has been deposed by the applicant herein that he wishes to institute a suit for compensation of the subject for injuries sustained in a road traffic accident.
20. I have seen a copy of the police abstract indicating that the subject was involved in a road traffic accident. In that case, he has an enforceable cause of action that may, if successful, lead to some property being available to his estate. I am satisfied that the applicant has made out a case before this court that the subject is incapable of conducting his case to enforce his right of action to sue for compensation for injuries arising out of a road traffic accident and therefore is in need of a next friend and guardian Ad Litem .
21. The care and administration of the property of a person with mental illness is then provided for under Part XII of the Mental Health Act. Section 26 of the Act provides for how an application for the management of the estate of a person with mental illness should be made.
S. 26. Application for administration
(1) An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—
(a) a supporter of the person with mental illness; or
(b) the representative of the person where the person with mental illness has not appointed a supporter.
(2) An application under subsection (1) shall be submitted together with an affidavit setting out—
(a) the grounds upon which the application is made;
(b) the full particulars as to the property and relatives of the person to whom it relates; and
(c) a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.
(3) A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—
(a) person in respect of whom the application is made; or
(b) where an application is made by a supporter to the representative of the person with mental illness.
(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given.
(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.
(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—
(a) court to examine the person; or
(b) person to be examined by a qualified registered mental health practitioner.
22. Section 26 of the Act therefore gives the court the power to make an order regarding management of the estate of any person with mental illness to any relative or any person suitable though preference will be given to a relative.
23. Section 27 of the Act provides that the court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness while section 28 of the Act provides for the duties of the manager of the estate of a person with mental illness which the applicant herein should apprise himself.
24. The applicant has stated that he is a nephew of the subject. The supporting affidavit and the letter from the assistant chief do not provide any information on where the subject’s parents are. The report by the psychiatrist indicates that he never got married. I would therefore presume that he has no child. The applicant states that he has the consent of his (the applicant’s) family members but without providing any useful information on where the subject’s parents are and if available, whether they are unable or unwilling to take up the guardianship. However, I note that there is no evidence or record challenging the granting of the prayers sought in the application. Being a nephew of the subject, the applicant is thus a relative of the subject.
25. I find the application merited and it is hereby allowed in the following terms:-
a) That the subject herein NN is hereby declared incapable of conducting his own affairs and is in need of a representative, next friend and Guardian Ad Litem.
b) That the applicant herein is appointed a representative, next friend and Guardian Ad Litem of the subject in all his affairs including the intended court case as well as the manager of his estate.
c) The order herein should be served through the area assistant chief, upon, if available, the parent, brother or sister of the subject and an affidavit of service filed in court by the representative to confirm that it was so served or if not, that the same was not feasible for reasons stated.
d) That there will be no order as to costs.
26. Orders accordingly.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Applicant.
Ummu (Ms): Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
KWALE HC MISC. APPLN NO. E001/20247 guardian ad litem of mental patient