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RULING
Having read the notice of motion under certification of urgency and supported by the sworn affidavit by Agnes Kagendo all evenly dated and filed pursuant to Order 32 Rule 15, Order 2 Rule 14 of the Civil Procedure Rules, 2010, Section 26(1) of the Mental Health Act, Cap 248 Laws of Kenya, Section 1A, 1B and 3A of the Civil Procedure Act I am accordingly convinced and persuaded as follows;
1. The Application is certified as urgent warranting e-parte hearing with its service being dispensed with in the 1st instance.
2. That Samuel Kiraguri Waihurathe the subject, is of advanced age of seventy (70) years, diabetic and hypertensive and Alzheimer's disease a degenerative diseased that has and continue to affect his memory with severe cognitive decline. He therefore suffers from mental disorder warranting the protection of the law.
3. Section 26 of the Mental Health Act falls under part XII “Judicial powers over persons and Estates of person’s suffering from mental illness”. It provides for the orders a court may make for the management of the estate of any person suffering from mental disorder and for the guardianship of that person by any near relative/any other suitable person. It states as follows;
Order for custody, management and guardianship
“(1) The court may make orders—
(a) for the management of the estate of any person suffering from mental disorder; and
(b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.
(2) 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.
(3) Whereupon inquiry 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 fit 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."
4. The Mental Health Act under section 27 bestows the court with the discretion to set the boundaries of the powers a person appointed may exercise.
5. Similarly Order 32 rule 1 to 15 of the Civil Procedure Rules, 2010 provides for procedures applicable to persons with unsound minds.
6. The application herein is brought by the wife of the subject whose primary concern is to protect the subject’s in interests from fraudulent and adverse dealings on all the property known as BAHATI/ENGORUSHA BLOCK 1/906.
7. The Application dated 28th April 2025 be and is hereby allowed in the following terms:-
i. THAT the Applicant be and is hereby appointed guardian of the subject.
ii. THAT the Applicant be and is hereby appointed guardian ad litem of the subject and is authorized to handle all the affairs of the subject.
iii. THAT the Applicant to pay the costs of this application.
8. This file shall be marked as closed
It is so ordered