REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC APPLICATION No. E254 OF 2022
IN THE MATTER OF: THE MENTAL HEALTH (AMENDMENT) ACT (CHAPTER 248 LAWS OF KENYA)
IN THE MATTEROF: EFRATA GETACHEW TESSEMA
PETITION FOR GUARDIANSHIP BY DR. SOPIATO LIKIMANI
JUDGMENT
1. The Applicant herein Dr. SOPIATO LIKIMANI petitions the Court Vide Petition dated 23rd November 2022, for orders that:
a. A declaration do issue that EFRATA GATACHEW TESSSEMA is a person suffering from mental disorder pursuant to the Mental Health Act, Cap248 Laws of Kenya.
b. Dr. SOPRIATO LIKIMANI be appointed as the legal guardian of the said EFRATA GETACHEW TESSEMA with powers to take custody of her and manage her estate.
2. The Petition is supported by the Affidavit of Dr. Sopiato Likimani sworn on 23rd November 2022; The Statement by Dr. Pius Kigamwa, the treating Physician sworn on 23rd November 2022; The Statutory Declaration of the father to the subject Dr. Getachew Tessema declared on 23rd November 2022 and the Statutory Declaration by the brother of the Subject Menelik Tessema declared on the 23rd November 2022.
3. The matter proceeded virtually by Viva Voce Evidence on 2nd March 2023. PW1- Dr. Pius Kigamwa. He asked the Court to adopt his statement cited above. He examined the subject on 17th November 2019 and presented before court, his report dated 15th August 2022 attached to his statement. He formed the view that in view of the challenges she is facing she is not capable of living independently and a close family member would be required to manage her affairs.
4. PW2 Dr. Sopiato Likimani- she is an aunt to the Subject. The deceased mother of the Subject, Sheila Soila Tessema, is her sister. The subject was born on 8th November 1978 with mild cerebral palsy. In 1995 she developed pituitary adenoma. Following an operation to address this she lost her intellectual and mental abilities. Her mother obtained a Guardianship order on 21st April 2006 in Canada where they had relocated to.
5. In 2010-2011 on account of the ill health of the mother they relocated back home. The mother passed away in 2011and the subject has been in the custody of the applicant since then. The responsibility for taking care of the subject has rested on the Applicant her other sister and her mother. The Applicant is the primary care giver.
6. The applicant has made this application to formalise the current arrangement that the family has to manage the welfare of the Subject. The subject has a medical condition that requires that decisions be made, and she is not in a position to make those decisions. The Applicant would also like to make an application to resolve the status of the subject as a Kenyan citizen.
The guardianship will also formalise the subject as a dependant to the estate of the Applicant.
7. PW3- Menelik Tessema is a brother to the Subject, he supports the Application and confirms that the Applicant has to date taken good care of his sister. He asks that the Court adopt his statement filed in Court.
8. Part XII of the Mental Health (Amendment) Act provides for the Care and Administration of property of persons with mental illness.
9. The Applicant seeks for a declaration that the subject is a person suffering from mental disorder (illness) and further that she be appointed the legal guardian of the subject with powers to take custody of her and manage her estate.
10. I have carefully considered this Application, the Affidavits and reports filed in court. I am satisfied that the ward is a person suffering from a mental illness and is incapable of managing her own affairs. I am also persuaded that the grant of orders will safeguard the rights of the subject as enumerated in Section 3 of the Act and in particular 3 (e) that provides for;
The right of a personal with mental illness to receive reasonable care, assistance and protection from their family and state.
11. I have also considered the fact that her brother and father are supportive of the orders being made. I am further guided by the medical evidence that confirms that the subject is incapable and requires the support of close family members to manage her affairs.
12. Accordingly, the Application is allowed and
a. The Applicant Dr. Sipiato Likimani is appointed as Guardian/ Representative to Efrata Getachew Tessema
b. The Applicant Dr. Sipiato Likimani is appointed Manager of the Estate of Efrata Getachew Tessema
c. As Manager of the Estate of Efrata Getachew Tessema the Applicant may dispose of the property only with the sanction of the court.
13. No order as to costs
It is so ordered
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this 10TH day of MARCH, 2023.
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P M NYAUNDI
JUDGE
In the presence of:
Ms Ouma Advocates for the Petitioner/ Applicant
Karani Court Assistant