Introduction
1. The Petitioner, Amina Anzazi Ndegwa, is a female adult. According to her Petition, she is the wife of Rumba Guni Kidzeli, having contracted a marriage under the customary laws of the Duruma people. Their union has been blessed with 5 issues, namely:-
(1) Omar Rumba Guni;
(2) Rama Rumba Guni;
(3) Lewa Rumba Guni;
(4) Aisha Rumba Guni; and
(5) Mamu Rumba Guni.
2. Rumba Guni Kidzeli (hereafter “RGK” or “the Patient”) was diagnosed with schizophrenia and polysubstance abuse disorder in 2018. In the opinion of Dr Said of Port Reitz Hospital, he has “schizoaffective disorder and is currently symptomatic.”
3. The Petitioner thus filed the Petition now before the Court dated 23rd February 2024, seeking, among other things, to be appointed as the guardian ad litem and manager of Rumba Guni Kidzeli and to be given access to the funds held by the Kenya Ports Authority Pension Scheme so that she could pay for his treatment and also settle school fees for the school going children.
The Petition
4. The Petitioner deposed in her affidavit sworn on 23rd February 2024, in support of the Petition, that Rumba Guni Kidzeli was dismissed from his employment with Kenya Ports Authority after he missed work following the diagnosis that he suffers from schizophrenia and polysubstance use disorder. Prior to his dismissal RGK was the family’s sole breadwinner. His illness affected the well-being of the family, as they depended on him for food, shelter, clothing, and school fees. Since being dismissed, he has been unable to take care of his responsibilities as a husband and a father and has no income.
5. The Petitioner averred that she had the sole responsibility of taking care of the family. She is not employed and relies on income from manual jobs she does from time to time. Four of her children go to school. However, they have been missing school as she does not have the ability to pay school fees.
6. She stated that the medication used by Rumba Guni Kidzeli was expensive. Given her condition, she is only able to provide medication intermittently. Thus, the Patient often goes without medication.
Hearing of the Petition
7. The Petition filed a Chamber Summons dated 28th February 2024 seeking to be appointed as the guardian ad litem of Rumba Guni Kidzeli. The Court directed that the application be heard on 13th March 2024. On 13th March 2024, the Court stated that given the nature of the matter, it was preferable that the Petition be heard on merit and a final determination made. Accordingly, it was directed that Rumba Guni Kidzeli be examined by a psychiatrist resident at Port Reitz Mental Hospital, and a report filed with the Deputy Registrar of the Court within 14 days of the said date. The hearing was slated for 17th April 2024. Due to the industrial action by public sector medical doctors, the matter could not be heard as scheduled, and it was only on the 22nd and 30th of July 2024 that the matter proceeded.
The Evidence of the Witnesses
8. The Petitioner was the first witness. She testified that she had been married to the Patient for 22 years and that they had five children. It was her testimony that Rumba Guni Kidzeli became unwell in 2018. At the time, he was employed by the Kenya Ports Authority. Upon becoming unwell, he left work without permission, and as a result, he was dismissed. He had not recovered since then. The Petitioner testified that the loss of the family breadwinner had left them destitute, resulting in children leaving school. She prayed that she be allowed to access his employment and pension benefits so that she could have funds with which to pay school fees and treat the Patient.
9. The second Witness was Omar Rumba Guni. Omar is the eldest son of Rumba Guni Kidzeli. He testified that he lives with the patient. He was 8 when his father fell ill. He testified that his father has mood swings; when unwell, he is harsh and can hardly understand anything, nor can the family members understand him. Omar stated that his father needs treatment while his siblings require school fees. He prayed that the Petition be allowed.
10. Dr. Salim Said, a consultant psychiatrist at Port Reitz Hospital, was the 3rd Witness. Dr. Said is a Consultant neurologist. He produced the medical report dated 24th November 2023. His report stated that Rumba Guni Kidzeli has paranoid delusions and poor attention. It was his opinion that Rumba Guni Kidzeli had Schizoaffective disorder. He testified that the patient is impaired in terms of making independent decisions. The doctor testified that given the nature of the treatment required, it would be necessary to issue the order sought.
11. The Court observed the patient and asked him questions. Although he answered most of the questions well and appeared to be conscious of his surroundings, he was clearly deluded about his employment status, as he still expected to resume employment. In the view of the Court, the patient appeared to be mentally ill.
Analysis
12. 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 suffer from mental illness? and
2. If so, what order should be issued?
The Applicable Law
13. 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.”
14. 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 Amina Anzazi Ndegwa is not a “supporter” of the Patient, as she wasn’t appointed in writing, it is my finding that being the patient’s wife, she 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
15. 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.”
16. 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.
17. The evidence adduced shows that Rumba Guni Kidzeli has schizophrenia and polysubstance disorder marked by mood swings and paranoid delusions about his work. His condition is exacerbated by lack of treatment. Schizophrenia and polysubstance disorders are mental illnesses. Consequently, I do not doubt that RGK suffers from a mental illness.
18. The Petitioner averred that the Patient was dismissed from his employment with the Kenya Ports Authority and that there are terminal and pension benefits that ought to be collected. Treatment of mental illnesses is expensive. Being ill, the Patient may not appreciate the need for treatment. His children require school fees. Otherwise, their futures will be ruined. Access to the terminal and pension benefits will help the Patient and his family. The appointment of the Petitioner as the manager of the Patient will enable her to access his funds so that she can buy medication for him and educate the children.
19. From the Petitioner’s testimony and the medical professional’s report, the patient cannot manage his affairs. It will, therefore, be in his best interest that managers/guardians-ad-litem is appointed to manage his 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.
20. In my view education of his children is also in the patient’s best interest.
Determination
21. I am satisfied, based on the evidence adduced, that the patient has schizophrenia and polysubstance disorder. As stated by Dr. Said, schizophrenia is a mental disorder. There is, therefore, a case for the appointment of the Petitioner as the Manager/Guardian ad litem of the Patient, Rumba Guni Kidzeli. In the circumstances, I order as follows:-
1. The Petitioner, Amina Anzazi Ndegwa, be and is hereby appointed as the Manager/guardian ad litem of the patient Rumba Guni Kidzeli;
2. The manager/guardian ad litem shall manage the patient’s estate but shall not have the power to sell, charge or otherwise alienate his immovable property without 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 her appointment; and
5. I make no orders as to costs.
22. Orders accordingly.
Dated and signed at Mombasa this 16th day of September 2024. Delivered virtually via Microsoft TEAMS.
1. The Petitioner, Amina Anzazi Ndegwa, is a female adult. According to her Petition, she is the wife of Rumba Guni Kidzeli, having contracted a marriage under the customary laws of the Duruma people. Their union has been blessed with 5 issues, namely:-
(1) Omar Rumba Guni;
(2) Rama Rumba Guni;
(3) Lewa Rumba Guni;
(4) Aisha Rumba Guni; and
(5) Mamu Rumba Guni.
2. Rumba Guni Kidzeli (hereafter “RGK” or “the Patient”) was diagnosed with schizophrenia and polysubstance abuse disorder in 2018. In the opinion of Dr Said of Port Reitz Hospital, he has “schizoaffective disorder and is currently symptomatic.”
3. The Petitioner thus filed the Petition now before the Court dated 23rd February 2024, seeking, among other things, to be appointed as the guardian ad litem and manager of Rumba Guni Kidzeli and to be given access to the funds held by the Kenya Ports Authority Pension Scheme so that she could pay for his treatment and also settle school fees for the school going children.
The Petition
4. The Petitioner deposed in her affidavit sworn on 23rd February 2024, in support of the Petition, that Rumba Guni Kidzeli was dismissed from his employment with Kenya Ports Authority after he missed work following the diagnosis that he suffers from schizophrenia and polysubstance use disorder. Prior to his dismissal RGK was the family’s sole breadwinner. His illness affected the well-being of the family, as they depended on him for food, shelter, clothing, and school fees. Since being dismissed, he has been unable to take care of his responsibilities as a husband and a father and has no income.
5. The Petitioner averred that she had the sole responsibility of taking care of the family. She is not employed and relies on income from manual jobs she does from time to time. Four of her children go to school. However, they have been missing school as she does not have the ability to pay school fees.
6. She stated that the medication used by Rumba Guni Kidzeli was expensive. Given her condition, she is only able to provide medication intermittently. Thus, the Patient often goes without medication.
Hearing of the Petition
7. The Petition filed a Chamber Summons dated 28th February 2024 seeking to be appointed as the guardian ad litem of Rumba Guni Kidzeli. The Court directed that the application be heard on 13th March 2024. On 13th March 2024, the Court stated that given the nature of the matter, it was preferable that the Petition be heard on merit and a final determination made. Accordingly, it was directed that Rumba Guni Kidzeli be examined by a psychiatrist resident at Port Reitz Mental Hospital, and a report filed with the Deputy Registrar of the Court within 14 days of the said date. The hearing was slated for 17th April 2024. Due to the industrial action by public sector medical doctors, the matter could not be heard as scheduled, and it was only on the 22nd and 30th of July 2024 that the matter proceeded.
The Evidence of the Witnesses
8. The Petitioner was the first witness. She testified that she had been married to the Patient for 22 years and that they had five children. It was her testimony that Rumba Guni Kidzeli became unwell in 2018. At the time, he was employed by the Kenya Ports Authority. Upon becoming unwell, he left work without permission, and as a result, he was dismissed. He had not recovered since then. The Petitioner testified that the loss of the family breadwinner had left them destitute, resulting in children leaving school. She prayed that she be allowed to access his employment and pension benefits so that she could have funds with which to pay school fees and treat the Patient.
9. The second Witness was Omar Rumba Guni. Omar is the eldest son of Rumba Guni Kidzeli. He testified that he lives with the patient. He was 8 when his father fell ill. He testified that his father has mood swings; when unwell, he is harsh and can hardly understand anything, nor can the family members understand him. Omar stated that his father needs treatment while his siblings require school fees. He prayed that the Petition be allowed.
10. Dr. Salim Said, a consultant psychiatrist at Port Reitz Hospital, was the 3rd Witness. Dr. Said is a Consultant neurologist. He produced the medical report dated 24th November 2023. His report stated that Rumba Guni Kidzeli has paranoid delusions and poor attention. It was his opinion that Rumba Guni Kidzeli had Schizoaffective disorder. He testified that the patient is impaired in terms of making independent decisions. The doctor testified that given the nature of the treatment required, it would be necessary to issue the order sought.
11. The Court observed the patient and asked him questions. Although he answered most of the questions well and appeared to be conscious of his surroundings, he was clearly deluded about his employment status, as he still expected to resume employment. In the view of the Court, the patient appeared to be mentally ill.
Analysis
12. 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 suffer from mental illness? and
2. If so, what order should be issued?
The Applicable Law
13. 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.”
14. 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 Amina Anzazi Ndegwa is not a “supporter” of the Patient, as she wasn’t appointed in writing, it is my finding that being the patient’s wife, she 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
15. 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.”
16. 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.
17. The evidence adduced shows that Rumba Guni Kidzeli has schizophrenia and polysubstance disorder marked by mood swings and paranoid delusions about his work. His condition is exacerbated by lack of treatment. Schizophrenia and polysubstance disorders are mental illnesses. Consequently, I do not doubt that RGK suffers from a mental illness.
18. The Petitioner averred that the Patient was dismissed from his employment with the Kenya Ports Authority and that there are terminal and pension benefits that ought to be collected. Treatment of mental illnesses is expensive. Being ill, the Patient may not appreciate the need for treatment. His children require school fees. Otherwise, their futures will be ruined. Access to the terminal and pension benefits will help the Patient and his family. The appointment of the Petitioner as the manager of the Patient will enable her to access his funds so that she can buy medication for him and educate the children.
19. From the Petitioner’s testimony and the medical professional’s report, the patient cannot manage his affairs. It will, therefore, be in his best interest that managers/guardians-ad-litem is appointed to manage his 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.
20. In my view education of his children is also in the patient’s best interest.
Determination
21. I am satisfied, based on the evidence adduced, that the patient has schizophrenia and polysubstance disorder. As stated by Dr. Said, schizophrenia is a mental disorder. There is, therefore, a case for the appointment of the Petitioner as the Manager/Guardian ad litem of the Patient, Rumba Guni Kidzeli. In the circumstances, I order as follows:-
1. The Petitioner, Amina Anzazi Ndegwa, be and is hereby appointed as the Manager/guardian ad litem of the patient Rumba Guni Kidzeli;
2. The manager/guardian ad litem shall manage the patient’s estate but shall not have the power to sell, charge or otherwise alienate his immovable property without 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 her appointment; and
5. I make no orders as to costs.
22. Orders accordingly.
Dated and signed at Mombasa this 16th day of September 2024. Delivered virtually via Microsoft TEAMS.