DORIS MUTHONI KINYUA VS WINFRED WANGECHI

1. By a Petition dated 24th May, 2023 presented under certificate of urgency the Petitioner, Doris Muthoni Kinyua sought the following orders, 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 is supported by an affidavit sworn on 24th May, 2023 and further supporting affidavit sworn on

3. The Petition proceeded to hearing by way of viva voce evidence on the virtual platform on 15th June, 2023,

4. The subject is the Petitioner’s niece and the daughter to the late David Muraguri Mureithi who died on 3rd January, 2018 as per the annexed Death Certificate marked DMK7. She is the daughter of the Petitioner’s sister, called Edith Wanjiru Mureithi who is elderly and unwell therefore unable to take care of the subject.

5. The Petitioner stated that she had temporarily relocated from her ordinary residence in France and has been living with the subject, her ailing mother and brother who are wholly dependent on the Petitioner for basic needs, financial and medical expenses.

6. The Petitioner states that the subject fell in 2008 and has been receiving treatment at Gilead Mental Health Consultants. The subject is battling several health complications including schizophrenia and Breast cancer stage 2.

7. The Petitioner is seeking for the guardianship so that she can take care for the subject. Owing to the long illness the Subject is unable to manage her own affairs

8. She has been admitted at a rehabilitation home where she is being taken care of and is incapable of making decisions owing to the mental illness.

9. She is further unable to make independent decisions regarding the share of her father’s estate that she is entitled to.

10. The evidence of the Petitioner is buttressed by the medical report made on 6th May, 2021 by Dr. J.K. Mutiso, the Specialist Psychiatrist indicating that the subject psychosocial functioning is severely impaired therefore need to appoint legal guardianship to manage the subject’s personal affairs.

11. The subject’s sister Grace Wambui Mureithi resides in Scotland and the United Kingdom with her family and it will be difficult to act as a guardian for the subject due to geographical distance,

12. She has understood the application and orders that the Petitioner is seeking and consented to them. She has no objection to the Petitioner being appointed as the legal guardian as well as the legal manager of the estate, property and family affairs of the Subject, since there is no other family member who has a closer relationship with the patient willing to undertake her guardianship.

13. The subject attended Court and confirmed that she is admitted at Mombasa Women’s Empowerment Network Hospital and she knows the Petitioner who her aunt as well as her much loved younger sister Grace.

14.  The subject averred that she is a lawyer by training and understand the orders sought and consents to them.

15.  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.

16. It is Petitioner contends that it is in the interest of the Subject that she be appointed legal guardian.

1. 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.

2. 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.

3. 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.

4. Section 26(3) of the Mental Health Act 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…”

5. 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.

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

i. WINFRED WANGECHI 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 Winfred Wangechi Mureithi.

iii. DORIS MUTHONI KINYUA is hereby appointed manager of the estate of WINFRED WANGECHI MUREITHI under Section 28 of Mental Health Act to manage her 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 assets within 6 months to the Court and the Public Trustee.

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 WINFRED WANGECHI MUREITHI.

vi. As Manager of the Estate of WINFRED WANGECHI 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.