REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
PETITION No. EO12 OF 2021
IN THE MATTER OF: THE MENTAL HEALTH ACT (CHAPTER 248 LAWS OF KENYA)
AND
IN THE MATTEROF: PETITION FOR GUARDIANSHIP UNDER SECTION 26 OF THE MENTAL HEALTH ACT
AND
IN THE MATTER OF: THE CIVIL PROCEDURE RULES
AND
IN THE MATTEROF: JAMES MBUGUA WAITHAKA
AND
MARGARET WANJIKU WAITHAKA ..................................... 1st PETITIONER
CATHERINE WAMBUI KAREKEZI .................................. 2nd PETITIONER
ANNE NJERI WAITHAKA ...........………………………....... 3rd PETITIONER
ANGELA WANJIRU WOKABl ……………………………... 4th PETITIONER
JUDGMENT
1. Vide Petition dated 23rd April 2021 , the petitioners seek the following orders that :
a. This Honourable court be pleased to appoint the 2nd Petitioner as the Guardian of person of James Mbugua Waithaka in accordance with the mental health Act with powers to make personal decisions for and on his behalf.
b. This Honourable court be pleased to appoint the 2nd Petitioner as the manager of the estate of James Mbugua Waithaka in accordance with the mental Health Act with Special permission, pursuant to Section 27 (1) Of the mental Health Act to Mortgage, Charge, or transfer by sale , gift, surrender, exchange or otherwise any immoveable property of which the estate may consist.
c. Such further orders as this Honorable court may deems mete and just
d. The costs of this petition be awarded to the Petitioner.
2. The Petition is supported by the Affidavit of Catherine Wambui Karekezi, the 2nd Petitioner. The 1st, 3rd and 4th Petitioners have also sworn affidavits of support dated 23rd April 2021. The Petitioners are the Children of the Ward.
3. At the hearing the 2nd Petitioner relied on her affidavit. The Ward currently resides with the 2nd Petitioner. The Ward is well advanced in years he is currently aged 92 years and based on the report of Dr. Juzar Hooker, dated 17th February 2021 is in poor health. The doctor states that the Ward;
' has advanced vascular dementia and gait disorder with significant and
severe functional impairment ... This is to certify that he is therefore
unable to discharge his own affairs i sign documents, operate bank
accounts and/ or ably look after his financial or business affairs…he
may be deemed to lack testamentary capacity at this point.’
4. The Doctor in his report advised against the participation of the Ward in the proceedings before Court.
5. Section 25 of the Mental Health Act, cap 248 Laws of Kenya provides for the circumstances under which a court may make orders for Guardianship of a subject ( patient) 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.
6. The 2nd Petitioner seeks to be appointed guardian of her father and also be appointed manager of his estate with special permission to mortgage, charge or transfer by sale, gift, surrender, exchange or Otherwise any immoveable property of the estate. Her siblings have no objection.
7. I have carefully considered this Petition, the Affidavits and reports filed in court. I am satisfied that the ward is a person suffering from a mental disorder and is incapable of managing his own affairs.
8. Accordingly the Petition is allowed and
a. the 2nd Petitioner is appointed as Guardian to James Mbugua Waithaka
b. the 2nd Petitioner is appointed Manager of the Estate of James Mbugua Waithaka
c. Pursuant to this appointment the 2nd Petitioner shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging James Mbugua Waithaka
d. As Manager of the Estate of James Mbugua Waithaka the 2nd Petitioner may dispose of the property only with the sanction of the court.
e. The matter will be mentioned before court on 19th September 2023 to confirm compliance
9. No order as to costs
It is so ordered
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…16th……………day of…………Feb……………..2023
P M NYAUNDI
JUDGE
In the presence of :
Mr.Kihara ………………………………………..Advocates for the Petitioners
Lucy Mwangi Court Assistant