JUDGMENT
1. The Applicant herein AMOS KIPROTICH KIMEBUR petitions the Court Vide Petition dated 15th November 2022 , for orders that :
a. Grant of Guardian Ad litem be issued to the petitioner for purposes of filing suit against the Karen Hospital and Others.
2. The Petition is supported by the Affidavit of AMOS KIPROTICH KIMEBUR, the Applicant, sworn on 15th November 2022 and further Affidavit of the Petitioner sworn on the 24th February 2023
3. The Petition proceeded for hearing virtually by Viva Voce Evidence on 9th March 2023.
4. PW1- Dr. Silvanus. Wabwire . He is a Neurologist attached to Kenyatta National Hospital and runs a private practice He examined the subject on 17th November 2020. She had a history of having undergone an operation after which she suffered complications, namely a cardiac arrest and a brain injury.
5. He observed that post the operation she was undergoing rehabilitation and was under 24-hour care by a caregiver as she cannot take care of herself. He submitted his report to court. His conclusion was that she cannot manage her affairs.
6. PW2- Amos Kiprotich Kimebur. He is the husband to the subject. He seeks to be appointed guardian over his wife as in her current state she cannot represent her interests. He submitted marriage certificate Serial No. 539810 as evidence of Marriage celebrated between him and the Subject on 4th December 2004 at the AIC Church Kapkitony.
7. He stated his wife was admitted at Karen Hospital for a procedure. That post the operation she developed complications that have resulted in her current state where she is unable to manage her affairs and requires 24-hour nursing support.
8. The Guardianship order is important as it will enable him to pursue her legal rights as against Karen Hospital and Others. The couple has 2 children aged 17 years and 15 Years.
9. The Court had an opportunity to observe the Subject via video and confirmed the gravity of her condition.
10. Part XII of the Mental Health ( Amendment ) Act provides for the Care and Administration of property of persons with mental illness.
11. The Applicant has demonstrated that the Applicant is incapable of managing her affairs in her current condition. The Doctor’s report dated 17th October 2020 indicates that Subjects ‘cognitive function is severely impaired and as such she is not able to engage in her normal duties as she is totally dependent on her caregivers for activities of normal living.’
12. I have carefully considered this Application, the Affidavits and reports filed in court. I am satisfied that the subject is a person suffering from a mental illness and is incapable of managing her own affairs. I am also persuaded that the grant of orders will safeguard the rights of the subject as enumerated in Section 3 of the Act and in particular 3 (e) that provides for;
The right of a personal with mental illness to receive reasonable care, assistance and protection from their family and state.
13. Accordingly, the Application is allowed and
a. the Applicant AMOS KIPROTICH KIMEBUR is appointed as Guardian/ Representative to PAULINE KANAIZA MASAMBU
14. No order as to costs
It is so ordered.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…17th day of…March 2023
In the presence of :
Kiprono………………………………..Advocates for the Petitioner/ Applicant
Karani Court Assistant
1. The Applicant herein AMOS KIPROTICH KIMEBUR petitions the Court Vide Petition dated 15th November 2022 , for orders that :
a. Grant of Guardian Ad litem be issued to the petitioner for purposes of filing suit against the Karen Hospital and Others.
2. The Petition is supported by the Affidavit of AMOS KIPROTICH KIMEBUR, the Applicant, sworn on 15th November 2022 and further Affidavit of the Petitioner sworn on the 24th February 2023
3. The Petition proceeded for hearing virtually by Viva Voce Evidence on 9th March 2023.
4. PW1- Dr. Silvanus. Wabwire . He is a Neurologist attached to Kenyatta National Hospital and runs a private practice He examined the subject on 17th November 2020. She had a history of having undergone an operation after which she suffered complications, namely a cardiac arrest and a brain injury.
5. He observed that post the operation she was undergoing rehabilitation and was under 24-hour care by a caregiver as she cannot take care of herself. He submitted his report to court. His conclusion was that she cannot manage her affairs.
6. PW2- Amos Kiprotich Kimebur. He is the husband to the subject. He seeks to be appointed guardian over his wife as in her current state she cannot represent her interests. He submitted marriage certificate Serial No. 539810 as evidence of Marriage celebrated between him and the Subject on 4th December 2004 at the AIC Church Kapkitony.
7. He stated his wife was admitted at Karen Hospital for a procedure. That post the operation she developed complications that have resulted in her current state where she is unable to manage her affairs and requires 24-hour nursing support.
8. The Guardianship order is important as it will enable him to pursue her legal rights as against Karen Hospital and Others. The couple has 2 children aged 17 years and 15 Years.
9. The Court had an opportunity to observe the Subject via video and confirmed the gravity of her condition.
10. Part XII of the Mental Health ( Amendment ) Act provides for the Care and Administration of property of persons with mental illness.
11. The Applicant has demonstrated that the Applicant is incapable of managing her affairs in her current condition. The Doctor’s report dated 17th October 2020 indicates that Subjects ‘cognitive function is severely impaired and as such she is not able to engage in her normal duties as she is totally dependent on her caregivers for activities of normal living.’
12. I have carefully considered this Application, the Affidavits and reports filed in court. I am satisfied that the subject is a person suffering from a mental illness and is incapable of managing her own affairs. I am also persuaded that the grant of orders will safeguard the rights of the subject as enumerated in Section 3 of the Act and in particular 3 (e) that provides for;
The right of a personal with mental illness to receive reasonable care, assistance and protection from their family and state.
13. Accordingly, the Application is allowed and
a. the Applicant AMOS KIPROTICH KIMEBUR is appointed as Guardian/ Representative to PAULINE KANAIZA MASAMBU
14. No order as to costs
It is so ordered.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…17th day of…March 2023
In the presence of :
Kiprono………………………………..Advocates for the Petitioner/ Applicant
Karani Court Assistant