REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HC CIVIL MISC. NO. E159 OF 2025
DOROTHY NAKAMI WERE
GERSHOM MUKHWANA WERE
CHRISPSTABLE SERUYA WERE …..…PETITIONERS/APPLICANT
EMMANUEL WERE
VERSUS
COLLINS JOSEPH WERE ………………………… RESPONDENT
RULING
1. The applicants have filed a Motion dated 15/8/2025 seeking the following orders:
i. That Collins Joseph Were be produced in court for the purposes of an inquiry by the court for the court to establish whether by reason of unsoundness of mind or mental infirmity, he is incapable of protecting his interests.
ii. That a date for court assessment/ examination be provided by the court.
iii. That the respondent Collins Joseph Were be adjudicated as suffering from mental incapacity.
iv. That the Applicants Dorothy Nakami Were, Gerishom Mukhwana Were, Chrispstabel Seruya Were and Emmanuel Were to appointed as guardian ad litem of the respondent in all matters related to his property/ estate.
v. That the petitioners be appointed as managers of the patient’s estate and authorized to administer the finances and all properties of the patient.
2. The application is supported by grounds on the face of the application and the supporting affidavit of Dorothy Nakami Were the 1 st applicant. I have considered the affidavit in support of the application and the annexures. I also saw and examined the subject patient in court, the children of the subject and also read and considered the medical report dated 20/10/2025 on the patient, authored by Doctor Mbiti, the Medical Officer- Psychiatric Department KCGTRH. The medical report indicates that he was calm when being examined but not well oriented to time, place, and people. His memory is poor, and he has bizarre behavior and a history of insomnia and hallucination. He is likely to be suffering from schizoaffective disorder and is thus mentally unstable.
3. The applicants have invoked the provisions of Sections 26 and 28 of the Mental Health Act. Section 26 of the said Act states that:
“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
4. The definition in Section 2 of the Act provides that:
“A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”
5. Based on the medical reports and affidavit, it is apparent that the subject suffers from a mental disorder, which has resulted in a reduction in the subject’s cognitive capacity and has adversely affected his reasoning. Therefore, he is unable to take care of his affairs or of himself.
6. In the circumstances, this court finds that the subject is a person suffering from a mental disorder within the definition of the Mental Health Act, and hereby appoints the Applicants jointly as the subject’s guardians. The court also appoints the said Applicants as general managers of the subject’s estate. For the avoidance of doubt, such managers’ general powers will not include the power of alienation, sale or transfer of the subject’s immovable assets, but will include all the powers necessary for the management of such and other assets, and to plead and prosecute and/or defend any action brought by or against the subject in respect of any of the assets forming part of his estate.
7. The Applicants shall file an affidavit every six months showing the state of the properties stated in paragraph 6 of the affidavit. The Applicants shall attach a search certificate to the affidavit to be filed after six months.
Dated, Signed, and Delivered at BUNGOMA this 19 th day of December, 2025.
R.E. OUGO
JUDGE
In the presence of:
GERSHOM MUKHWANA WERE/ Applicant
CHRISPSTABLE SERUYA WERE /Applicant
Wilkister - C/A
HC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULINGHC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULING HC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULINGHC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULING 1111
IN THE HIGH COURT OF KENYA AT BUNGOMA
HC CIVIL MISC. NO. E159 OF 2025
DOROTHY NAKAMI WERE
GERSHOM MUKHWANA WERE
CHRISPSTABLE SERUYA WERE …..…PETITIONERS/APPLICANT
EMMANUEL WERE
VERSUS
COLLINS JOSEPH WERE ………………………… RESPONDENT
RULING
1. The applicants have filed a Motion dated 15/8/2025 seeking the following orders:
i. That Collins Joseph Were be produced in court for the purposes of an inquiry by the court for the court to establish whether by reason of unsoundness of mind or mental infirmity, he is incapable of protecting his interests.
ii. That a date for court assessment/ examination be provided by the court.
iii. That the respondent Collins Joseph Were be adjudicated as suffering from mental incapacity.
iv. That the Applicants Dorothy Nakami Were, Gerishom Mukhwana Were, Chrispstabel Seruya Were and Emmanuel Were to appointed as guardian ad litem of the respondent in all matters related to his property/ estate.
v. That the petitioners be appointed as managers of the patient’s estate and authorized to administer the finances and all properties of the patient.
2. The application is supported by grounds on the face of the application and the supporting affidavit of Dorothy Nakami Were the 1 st applicant. I have considered the affidavit in support of the application and the annexures. I also saw and examined the subject patient in court, the children of the subject and also read and considered the medical report dated 20/10/2025 on the patient, authored by Doctor Mbiti, the Medical Officer- Psychiatric Department KCGTRH. The medical report indicates that he was calm when being examined but not well oriented to time, place, and people. His memory is poor, and he has bizarre behavior and a history of insomnia and hallucination. He is likely to be suffering from schizoaffective disorder and is thus mentally unstable.
3. The applicants have invoked the provisions of Sections 26 and 28 of the Mental Health Act. Section 26 of the said Act states that:
“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
4. The definition in Section 2 of the Act provides that:
“A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”
5. Based on the medical reports and affidavit, it is apparent that the subject suffers from a mental disorder, which has resulted in a reduction in the subject’s cognitive capacity and has adversely affected his reasoning. Therefore, he is unable to take care of his affairs or of himself.
6. In the circumstances, this court finds that the subject is a person suffering from a mental disorder within the definition of the Mental Health Act, and hereby appoints the Applicants jointly as the subject’s guardians. The court also appoints the said Applicants as general managers of the subject’s estate. For the avoidance of doubt, such managers’ general powers will not include the power of alienation, sale or transfer of the subject’s immovable assets, but will include all the powers necessary for the management of such and other assets, and to plead and prosecute and/or defend any action brought by or against the subject in respect of any of the assets forming part of his estate.
7. The Applicants shall file an affidavit every six months showing the state of the properties stated in paragraph 6 of the affidavit. The Applicants shall attach a search certificate to the affidavit to be filed after six months.
Dated, Signed, and Delivered at BUNGOMA this 19 th day of December, 2025.
R.E. OUGO
JUDGE
In the presence of:
GERSHOM MUKHWANA WERE/ Applicant
CHRISPSTABLE SERUYA WERE /Applicant
Wilkister - C/A
HC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULINGHC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULING HC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULINGHC.CIVIL MISC. APPL. NO. E159 OF 2025 – RULING 1111