DORIS MUTHONI KINYUA VS ANDREW MURAGURI

1. The Petitioner approached the Court under Section 26 and 28 of the Mental Health Act through Petition dated 24th May, 2023 as well as supporting affidavit the Petitioner, Doris Muthoni Kinyua dated 24th May, 2023, for the following orders of Court that:

a) Spent.

b) The Petitioner (Doris Muthoni Kinyua) be appointed as a legal guardian to manage the affairs of the subject.

c) The Honourable Court be pleased to grant orders to the Petitioner to be heard at the earliest date set by Court for Summons for Confirmation of grant in the estate of the late David Muraguri Mureithi pending hearing and determination of the Application herein.

d) Costs of the Application be in the cause.

2. The Petition was canvassed by way of viva voce evidence on the online platform on 15th June 2023.

3. The Petitioner averred that she is a nurse by professional, the subject is her nephew and the son to the late David Muraguri Mureithi who died on 3rd January, 2018 as per the copy of Death Certificate attached and marked DMK7.

4. The subject is a son to her sister, Edith Wanjiru Mureithi who is elderly and unwell therefore unable to take care of the subject.

5.  The Petitioner stated that the subject had been enjoying good health until 1st September, 2000 when he was taken ill. Upon visiting Gilead Mental Health Consultants with his late father David Mureithi he was diagnosed with Schizophrenia and has been living with this mental condition since.

6. The Petitioner stated that she had temporarily relocated from her ordinary residence in France and has been living with the subject, his ailing mother and sister who are wholly dependent on the Petitioner for basic needs, financial and medical expenses thus need for her to be appointed legal guardian.

7. The averments of the Petitioner are fortified by medical report prepared by Dr. J.K. Mutiso, Specialist Psychiatrist dated 6th May 2021 who makes the following observation having examined the subject

It is therefore my considered opinion that Andrew Muraguri Mureithi is not able and indeed has not been able to manage his own personal affairs. Further, he is not able nor does he have the capacity to manage the family estate property and financial affairs on account of mental incapacity due to schizophrenia.  There is therefore a growing need in my opinion to appoint legal guardianship to handle administration of the family estate as well as manage his personal affairs’.

8. The Subject, (Andrew Muraguri Mureithi) also appeared in Court and stated that the Petitioner is his aunt and he understands the application made by the Petitioner (Doris Muthoni Kinyua) and consented to the said orders.

9. The subject’s sister (Grace Mureithi Wambui) also appeared before the Court and stated that she resides in Scotland and the United Kingdom with her family and she understands the application made by Petitioner who is her aunt and supported the application and further asserted that it will be difficult for her to be placed as a guardian for the subject due to geographical distance thus supported the orders the Petitioner is seeking and consented to them.

10. Grace Mureithi Wambui consents to the Petitioner’s appointment as the legal guardian as well as the legal administrator of the estate, property and family affairs since there is no other family member who has a closer relationship with the patient willing to undertake his guardianship.

11. The Petitioner avers that she has no adverse interest to that of the subject and the family and she is willing to render a full account of the patient’s affairs whenever required by the Honourable Court and abide with such other conditions as this Honourable Court may impose.

12.  It’s Petitioner’s averment that for the best interest of the subject, she be appointed as legal guardian, so that upon confirmation of grant of the estate of the father of the subject she can access the resources of the estate to fully cater for the needs of the subject as he is in dire need of urgent medical attention.

13. From the foregoing, the issue(s) that are to be determined by the Court are: -

1) Whether the Subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248.

2) Whether the Petitioner should be appointed as guardian to the Subject as well as manager of the estate of the Subject.

14. The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons. Section 26 1 (a) and (b) of the Act grants the Court powers to grant orders for management of the estate of subjects and for their guardianship by any near relatives or any suitable persons.

15. Section 28 (1) of the same Act provides for management of the subject's estate. The subject shall require funds to facilitate and ensure provision of medical care, nutrition, hygiene and upkeep.

16. Section 26(3) of the Act it provides,

“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 persons, including proper provision for his maintenance…”

17. From the evidence produced by the Petitioner, the Medical Report on record, it is not disputed that the Subject is suffering from a mental disorder; a medical condition envisaged under Section 26 of the Mental Health Act.

18. In light of the above, the Court holds that: -

i. ANDREW MURAGURI MUREITHI (the Subject) is hereby adjudged to be suffering from mental disorder pursuant to Section 26 of the Mental Health Act, Cap 248 Laws of Kenya.

ii. DORIS MUTHONI KINYUA is hereby appointed the legal guardian to ANDREW MURAGURI MUREITHI.

iii. DORIS MUTHONI KINYUA is hereby appointed manager of the estate of ANDREW MURAGURI MUREITHI under Section 28 of Mental Health Act to manage his estate including any such description of moveable or immoveable property, money, debts and legacies, power to execute, sign all deeds and instruments relating to or evidencing the title or right to any property or giving a right to receive any money or goods.

iv. Pursuant to this appointment the Petitioner shall be required to provide an inventory of the subject’s assets to the court and the Public Trustee within 6 months.

v. In accordance with Section 27(4) of the Mental Health Act,2022 the Petitioner shall cause within 30 days the publication of notice in the Gazette, informing the public of her appointment as the manager of the estate ANDREW MURAGURI MUREITHI.

vi. As Manager of the Estate of ANDREW MURAGURI MUREITHI the Petitioner may dispose of the property only with the sanction of the court.

vii. The matter will be mentioned before court on 29th November 2023 to confirm the compliance.

viii. Costs to be met out of the Estate of the Subject.