' The Applicant, who is the son of the Respondent, has moved this Honourable Court by way of the present application. It is the Applicant’s case that the Subject is critically ill and is presently admitted at the Nairobi Hospital Intensive Care Unit (ICU). The Subject is an account holder with KCB Bank, Murang’a Town Branch, and the said account has funds that may be applied towards settlement of her hospital bills.
The Applicant averred that the family has consented to his appointment as Guardian and Manager of the Estate of the Subject for purposes of facilitating access to the said funds. The Applicant contended that unless the orders sought herein are granted, the Subject and the entire family stand to suffer loss and irreparable harm.
In further support of the application, Jane Wangeci Mbuiga swore an affidavit stating that she is the Applicant’s sister and the first-born daughter of the Respondent. She deposed that the Subject is currently admitted at Nairobi Hospital Intensive Care Unit (ICU) as Patient No. 102xxxxxx022, suffering from chronic respiratory failure, dementia, and other age-related conditions. She further deposed that the Subject was admitted on 18.09.2025 and that her treatment attracts a bill of approximately Kshs. 200,000/= per every 24 hours in the ICU. As a result, the family has already expended substantial sums of money towards her medication, care, and support.
Issues for Determination
The Court has considered the pleadings, affidavits, and medical evidence placed on record. The issues arising for determination are as follows: Whether the Subject is incapable of managing her affairs within the meaning of the Mental Health Act, Cap 248
Whether the Applicant should be appointed Guardian and Manager of the Estate of the Respondent.
Whether the Applicant should be authorized to access funds in the Respondent’s bank account for purposes of settling medical bills and related upkeep.
Analysis
From the material placed before this Court, it is not disputed that the Subject is critically ill and currently admitted at Nairobi Hospital ICU. According to her, has caused them to exhaust all their savings. She listed the names of all the five siblings who have consented to the withdraw. She stated that subject cannot communicate or handle anything on her own. A medical report by Dr Muhindi Wanjugu was filed saying that she is now stable but not stable enough to undertake activities on her own. the applicant relied on the case of where Onyiego J posited as follows:
7. I have considered the petition herein, grounds on the face of it, affidavit in support and evidence by the applicant/petitioner. There is no dispute that the Subject is very sick, bed ridden, physically and mentally incapacitated. She is not able to make any independent decision as she has been in a comatose since 2015. The applicant is praying for authority to withdraw 500,000/= from one of the respondents’ accounts in Eco Bank, Karen branch to meet her medical expenses and daily upkeep.
The medical evidence, including the affidavit of Jane Wangeci Mbuiga, establishes that the Subject is suffering from chronic respiratory failure, dementia, and other age-related ailments, rendering her physically and mentally incapacitated. It is my understanding that the applicant has to bring this case within the meaning of mental health act. sections 26 and 27 of the Mental Health Act, Cap 248, empowers this Court to make orders for the custody, management, and guardianship of persons suffering from mental disorder or incapacity. Section 27 thereof allows the Court to appoint a suitable person to manage the estate of such a person. this however has limits. the power does not include disposing or wasting the estate.
The Court held that the appointment of a guardian or manager under the Act must be guided by the best interests of the person under incapacity and the suitability of the proposed manager. The jurisdiction under the Mental Health Act exists to protect vulnerable persons and ensure their welfare. In this case, it is not just mental health but the applicant had total physical incapacity as she is in a comma.
Having regard to the affidavit evidence and medical record, the court is satisfied that the Subjectis incapable of managing her own affairs. The Applicant, being her son, enjoys the support of his siblings, and no objection has been raised as to his suitability. It is important to appoint a close family member as guardian. I have seen the extracts of the identity cards and note that they reflect the identity of the sons. I find the Applicant to be a fit and proper person to be appointed Guardian and Manager of the Subject’s Estate.
On the question of access to funds, the evidence shows that the Respondent’s medical condition requires urgent and sustained financial intervention, with ICU expenses alone amounting to approximately Kshs. 200,000/= per day. Unless access is granted, her welfare, dignity, and even survival would be gravely compromised. Faced with the same circumstances, Musyoka J, in hearing the matter of mental incapacity stated as follows in In re Estate of R W W (Patient) [2016] KEHC 7964 (KLR)
8. The Mental Health Act is the law governing handling of persons suffering from mental disorder or sub normality in Kenya. It also provides for custody of such persons and the management of their estates. Part XII of the Act deals with judicial power over persons and estates of persons suffering from mental disorder. Section 26 of the Act specifically provides for the making of orders for custody, management and guardianship of such persons and their estates.
9. The petition before me asks the court to make an appointment of guardians for the patient, as well as managers for her estate. From the material before me it is clear that the patient is no longer able to manage herself and her affairs on account of mental disorder arising from the conditions that have been documented in the medical report of Dr. Ndege referred to above.
This Court is persuaded, by the principle in In re Estate of GW [2022] KEHC 14714 (KLR) , that the estate of an incapacitated person must be applied first and foremost to preserve their health and life. Kasango J, Posited as follows:
I am satisfied that the subject is suffering from mental disorder as provided under Cap 248. I am also satisfied that the petitioner and his sibling are well intended in bringing this action. It is for the safety and wellbeing of the subject whom the court was informed is unable to take care of himself even in the mundane everyday needs.
The last aspect relates to whether to hear parties viva voce or via affidavits. The subject is on a time bound incapacity and a full hearing will render the protection to the funds nugatory. Therefore, proceeding via affidavit was proper. The only protection relates to expending the money specifically for the named hospital and for the named subject.
The further protection is for filing of accounts within a reasonable time. In the circumstances, the application is merited and consequently allowed. There shall be no order as to costs.
Determination
Consequently, the court makes the following orders: The Respondent, is hereby declared to be a person suffering from incapacity within the meaning of Section 26 of the Mental Health Act, Cap 248, Laws of Kenya.
The Applicant, being the son of the Respondent, is hereby appointed Guardian and Manager of the Estate of the Subject pursuant to Sections 26 and 27 of the Mental Health Act.
The Applicant is authorized to withdraw the sum of Kshs. 1,000,000/= from the Respondent’s account held at KCB Bank, Murang’a Town Branch, strictly for the purposes of meeting her medical expenses and daily upkeep.
The Applicant shall file before this Court a detailed account of the expenditure of the said funds within sixty (60) days of withdrawal.
The Applicant shall continue to manage the affairs of the Subject diligently and in her best interests, and any further substantial dealings with the estate shall be subject to prior approval of this Court.
no order as to Costs.
Mention on 17.11.2025 for further directions on accounts.
DELIVERED, DATED and SIGNED at NYERI on this 10 th day of September 2025. Ruling delivered through Microsoft Teams Online Platform.
Represented by: -
Mr. Koech for Appellant
Court Assistant – Michael/ Matiko
'
The Applicant averred that the family has consented to his appointment as Guardian and Manager of the Estate of the Subject for purposes of facilitating access to the said funds. The Applicant contended that unless the orders sought herein are granted, the Subject and the entire family stand to suffer loss and irreparable harm.
In further support of the application, Jane Wangeci Mbuiga swore an affidavit stating that she is the Applicant’s sister and the first-born daughter of the Respondent. She deposed that the Subject is currently admitted at Nairobi Hospital Intensive Care Unit (ICU) as Patient No. 102xxxxxx022, suffering from chronic respiratory failure, dementia, and other age-related conditions. She further deposed that the Subject was admitted on 18.09.2025 and that her treatment attracts a bill of approximately Kshs. 200,000/= per every 24 hours in the ICU. As a result, the family has already expended substantial sums of money towards her medication, care, and support.
Issues for Determination
The Court has considered the pleadings, affidavits, and medical evidence placed on record. The issues arising for determination are as follows: Whether the Subject is incapable of managing her affairs within the meaning of the Mental Health Act, Cap 248
Whether the Applicant should be appointed Guardian and Manager of the Estate of the Respondent.
Whether the Applicant should be authorized to access funds in the Respondent’s bank account for purposes of settling medical bills and related upkeep.
Analysis
From the material placed before this Court, it is not disputed that the Subject is critically ill and currently admitted at Nairobi Hospital ICU. According to her, has caused them to exhaust all their savings. She listed the names of all the five siblings who have consented to the withdraw. She stated that subject cannot communicate or handle anything on her own. A medical report by Dr Muhindi Wanjugu was filed saying that she is now stable but not stable enough to undertake activities on her own. the applicant relied on the case of where Onyiego J posited as follows:
7. I have considered the petition herein, grounds on the face of it, affidavit in support and evidence by the applicant/petitioner. There is no dispute that the Subject is very sick, bed ridden, physically and mentally incapacitated. She is not able to make any independent decision as she has been in a comatose since 2015. The applicant is praying for authority to withdraw 500,000/= from one of the respondents’ accounts in Eco Bank, Karen branch to meet her medical expenses and daily upkeep.
The medical evidence, including the affidavit of Jane Wangeci Mbuiga, establishes that the Subject is suffering from chronic respiratory failure, dementia, and other age-related ailments, rendering her physically and mentally incapacitated. It is my understanding that the applicant has to bring this case within the meaning of mental health act. sections 26 and 27 of the Mental Health Act, Cap 248, empowers this Court to make orders for the custody, management, and guardianship of persons suffering from mental disorder or incapacity. Section 27 thereof allows the Court to appoint a suitable person to manage the estate of such a person. this however has limits. the power does not include disposing or wasting the estate.
The Court held that the appointment of a guardian or manager under the Act must be guided by the best interests of the person under incapacity and the suitability of the proposed manager. The jurisdiction under the Mental Health Act exists to protect vulnerable persons and ensure their welfare. In this case, it is not just mental health but the applicant had total physical incapacity as she is in a comma.
Having regard to the affidavit evidence and medical record, the court is satisfied that the Subjectis incapable of managing her own affairs. The Applicant, being her son, enjoys the support of his siblings, and no objection has been raised as to his suitability. It is important to appoint a close family member as guardian. I have seen the extracts of the identity cards and note that they reflect the identity of the sons. I find the Applicant to be a fit and proper person to be appointed Guardian and Manager of the Subject’s Estate.
On the question of access to funds, the evidence shows that the Respondent’s medical condition requires urgent and sustained financial intervention, with ICU expenses alone amounting to approximately Kshs. 200,000/= per day. Unless access is granted, her welfare, dignity, and even survival would be gravely compromised. Faced with the same circumstances, Musyoka J, in hearing the matter of mental incapacity stated as follows in In re Estate of R W W (Patient) [2016] KEHC 7964 (KLR)
8. The Mental Health Act is the law governing handling of persons suffering from mental disorder or sub normality in Kenya. It also provides for custody of such persons and the management of their estates. Part XII of the Act deals with judicial power over persons and estates of persons suffering from mental disorder. Section 26 of the Act specifically provides for the making of orders for custody, management and guardianship of such persons and their estates.
9. The petition before me asks the court to make an appointment of guardians for the patient, as well as managers for her estate. From the material before me it is clear that the patient is no longer able to manage herself and her affairs on account of mental disorder arising from the conditions that have been documented in the medical report of Dr. Ndege referred to above.
This Court is persuaded, by the principle in In re Estate of GW [2022] KEHC 14714 (KLR) , that the estate of an incapacitated person must be applied first and foremost to preserve their health and life. Kasango J, Posited as follows:
I am satisfied that the subject is suffering from mental disorder as provided under Cap 248. I am also satisfied that the petitioner and his sibling are well intended in bringing this action. It is for the safety and wellbeing of the subject whom the court was informed is unable to take care of himself even in the mundane everyday needs.
The last aspect relates to whether to hear parties viva voce or via affidavits. The subject is on a time bound incapacity and a full hearing will render the protection to the funds nugatory. Therefore, proceeding via affidavit was proper. The only protection relates to expending the money specifically for the named hospital and for the named subject.
The further protection is for filing of accounts within a reasonable time. In the circumstances, the application is merited and consequently allowed. There shall be no order as to costs.
Determination
Consequently, the court makes the following orders: The Respondent, is hereby declared to be a person suffering from incapacity within the meaning of Section 26 of the Mental Health Act, Cap 248, Laws of Kenya.
The Applicant, being the son of the Respondent, is hereby appointed Guardian and Manager of the Estate of the Subject pursuant to Sections 26 and 27 of the Mental Health Act.
The Applicant is authorized to withdraw the sum of Kshs. 1,000,000/= from the Respondent’s account held at KCB Bank, Murang’a Town Branch, strictly for the purposes of meeting her medical expenses and daily upkeep.
The Applicant shall file before this Court a detailed account of the expenditure of the said funds within sixty (60) days of withdrawal.
The Applicant shall continue to manage the affairs of the Subject diligently and in her best interests, and any further substantial dealings with the estate shall be subject to prior approval of this Court.
no order as to Costs.
Mention on 17.11.2025 for further directions on accounts.
DELIVERED, DATED and SIGNED at NYERI on this 10 th day of September 2025. Ruling delivered through Microsoft Teams Online Platform.
Represented by: -
Mr. Koech for Appellant
Court Assistant – Michael/ Matiko
'