RULING
1. Before this Court is the Application/Petition dated 11th March 2024 by which the Petitioner, Beth Wangari Kimotho is seeking the following orders: -
i. Spent
ii. That the subject be and is hereby adjudged to be diagnosed with mental disorder as defined in the Mental Health Act Cap 248 Laws of Kenya.
iii. That BETH WANGARI KIMOTHO be and is hereby appointed as the legal guardian over the affairs of the Subject in accordance with the Mental Health Act, with powers to sign, access, withdraw, execute and/or carry out any act incidental to affairs of the Subject.
iv. That BETH WANGARI KIMOTHO be and is hereby granted management orders and authorized to take all legal functions with regards to the financial affairs, interests and welfare of the Subject.
v. That BETH WANGARI KIMOTHO be and is hereby appointed the legal guardian of the Subject’s child, WEMA WANGARI WANJIKU.
vi. That the Honourable Court be pleased to make any further orders as it may deem just and fit to grant.
2. The application is supported by the grounds on the face of the application and the affidavit of the Applicant/Petitioner dated 11th March 2024.
3. The Applicant/Petitioner deponed that she is the biological mother of the Subject. The Applicant annexed to her affidavit copies of the Subject’s birth certificate and identity card as “BWK-1a” and “BWK-1b” respectively.
4. The Applicant further deponed that the Subject was diagnosed with Multiple Sclerosis, which is a mental disorder causing memory lapses. That this has rendered the Subject unable to store information and cannot therefore take care of her interests.
5. It was further the Applicant’s position that the Subject was assessed for disability and a Persons With Disabilities (PWDs) Medical Assessment Report dated 28th July 2020 issued by the Director of Medical Services adjudging the Subject as a Person With Disability (PWD). Annexed to the affidavit and marked “BWK-2” is a copy of the Medical Assessment Report.
6. That following the issuance of the Medical Assessment Report of the Subject, the National Council of Persons with Disabilities (NCPWD) formally acknowledged the Subject as a Person with Permanent Disability and issued the Subject with a Persons with Disabilities Card. The Applicant annexed to her affidavit and marked as “BWK-3” a copy of the disability card issued by the NCPWD issued on 24th August 2020.
7. It was also deponed by the Applicant that Subject has a daughter, born on 10th September 2022. That the said Subject’s daughter, one WEMA WANGARI WANJIKU has since birth, been in the total custody and care of the Applicant. Annexed to the Applicant’s affidavit and marked “BWK-4” is a copy of the minor’s birth certificate.
8. The Applicant further asserted in her affidavit that by reason of the Subject’s mental disability, she is unable to carter for the best interest of the minor, the said WEMA WANGARI WANJIKU.
9. That due to the Subject’s inability to make proper decision’s regarding the child’s welfare, the Applicant seeks that she be declared the Subject’s legal guardian as well as the legal guardian of the child.
10. The Applicant stated that she is financially, physically and emotionally fit and competent to take care of the welfare of the Subject as well as the best interest of the child, WEMA WANGARI WANJIKU.
11. I have carefully considered the Petition the Supporting Affidavit filed in support thereof as well as the annextures. I will first I first outline the applicable law before proceeding to the deal with the Petition.
12. Section 26 of the Mental Health Act, Cap 248, Laws of Kenya provides for the circumstances under which a Court may make orders for the Guardianship of a Subject and the management of their affairs 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.”
13. By this application, the Petitioner seeks to be declared as a Guardian and Manager of the Subject. For the orders sought to be granted by a court, the Petitioner must first adduce sufficient evidence that the Subject is actually a person suffering from a mental disorder within the meaning of the Mental Health Act, Cap. 248 Laws of Kenya. It must also be demonstrated by an applicant that the Subject is unable to manage her own affairs.
14. The Petitioner seeks to be declared as a Guardian and Manager of the Subject. For the orders sought to be granted by a court, the Petitioner must first adduce sufficient evidence that the Subject is actually a person suffering from a mental disorder within the meaning of the Mental Health Act, Cap. 248 Laws of Kenya. It must also be demonstrated by an applicant that the Subject is unable to manage her own affairs.
15. The Petitioner/Applicant deponed that the Subject was diagnosed with Multiple Sclerosis, a mental disorder disease causing memory lapses. That due to the disorder, the Subject is unable to store information and cannot therefore take care of her interests and that of her child, WEMA WANGARI WANJIKU.
16. A Medical Assessment Report (Annexture “BWK-2” to the Supporting Affidavit) by the Director of Medical Servies was produced as an exhibit in support of the Petition. I have perused the Report and established that the Ministry of Health constituted a panel of three members who conducted an Assessment on the Subject on 28th July 2020. The findings of the panel were that the Subject was suffering from Multiple Sclerosis and was therefore unable to store information due to the frequent relapse of the disease. The report is dated 17th August 2020.
17. I have also established from the evidence attached to the Petitioner’s Affidavit in support of the application that following the issuance of the Medical Assessment report, the National Council of Persons with Disabilities (NCPWD) formally acknowledged the Subject as a Person with Permanent Disability and issued the Subject with a Persons with Disabilities Card. A copy of the Subject’s disability card is annexed and marked as “BWK-3” to the affidavit of the Petitioner.
18. When the matter came up in court for directions on 19th March 2023, the Court directed that the Petitioner to have a further medical assessment conducted on the Subject and have a report in that regard filed in court. I have perused the court record and established that a report dated 5th June 2024 from Mama Lucy Hospital was filed by the Petitioners essentially confirming the earlier assessment that the Subject suffers multiple sclerosis.
19. Based on the material availed to this Court I am satisfied that the Subject suffers from a mental illness/disorder within the meaning of the Mental Health Act, Cap. 248 Laws of Kenya and that she is unable to manage her own affairs.
20. For the portion of the application that relates to the Subject’s child, Section 8(1) of the Children Act, Cap 141 Laws of Kenya directs that in deciding upon any matter involving a child, this court is obliged to give priority to the best interests of the said child. The Section provides: -
“(8). (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) …………”
21. The powers of the court to appoint a guardian are provided for under section 34 of the Children Act, Cap 141 Laws of Kenya. It provides that on the application of any individual, where the child’s parents are no longer living and the child has no guardian nor other person having parental responsibility for him, the court may appoint a guardian.
22. Section 101 of the Act provides that a person, not having legal custody of a child, but with actual custody of the child shall be deemed to be charged with the care of the child, and shall take all reasonable steps to safeguard the interests and welfare of the child.
23. Further, Section 98 of the Act requires a court before whom a child is brought, particularly where the child is not represented to appoint guardian ad litem to safeguard the interest of the child in the proceedings before the court.
24. Having perused the instant application, I find that the prayer to have the Petitioner herein appointed as the legal guardian of the Subject’s child has not been brought under the correct legal provisions. The child has been treated in the instant application as one and the same person as the mother. No provisions of the Children Act have been cited in the application neither have they been complied with and/or met.
25. It is important to note that the minor is a different person and applications for orders relating to the child must of essence comply with the strictures set out under the Children Act.
26. For the reasons set out above, I hereby allow prayers (a) (b) and (c) of the Petition dated 11th March 2024. Prayer (d) is of the Petition is hereby declined.
27. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Kembo For the Applicant