1. The applicants, Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis, filed the Notice of Motion dated 8th April 2025 seeking to be appointed as the guardians ad litem of Mr Hussein Khamis Mohamed and for the court to order that the costs of the application be in the cause. The basis of the application is that they are daughters and son of Mr Hussein Khamis Mohamed. I shall hereafter refer to Mr Hussein Khamis Mohamed as “the Ward”. They contended that the Ward suffers from mental illness, that he was therefore unable to conduct his affairs, and that it would therefore be in the interest of justice to appoint guardians ad litem over the Ward to prevent his properties from being misappropriated by third parties.
2. The applicants deposed to a joint affidavit sworn on 8th April 2025 in which they averred that they were seeking guardianship over the Ward. The Ward, a retired teacher formerly of Mkwambani Primary School, in Kinondo, Kwale County, is currently undergoing treatment at Mombasa Women Rehabilitation Centre for schizophrenia, a condition that has impaired his ability to manage his affairs.
3. They deposed that upon becoming mentally ill, the Ward began to neglect his hygiene, became overly religious and irritable, and started talking to himself. He has also wandered and slept in the street and has been aggressive towards those around him. He was admitted to Port Reitz Hospital in 2022 due to the severity of his condition and has been undergoing treatment there since then.
4. The applicants stated that, given his condition, the Ward was unable to make decisions for himself. That being so, his personal, medical, and financial matters required management by guardians appointed by the Court. They stated that, as family members, they were well-placed to serve as guardian ad litem. They averred that they were competent and that it would be in the Ward's best interest for them to be appointed as guardians ad litem.
5. The applicants attached their birth certificates, photographs they took with the Ward as well as a medical report dated 24th March 2025 prepared by Dr Nafisa Ahmed Seif, set I, in which the said doctor, in his prognosis, identified the illness afflicting the patient as schizophrenia. She put the Ward on oral medication and “intramuscular depot of injections.”
6. The matter was heard by way of viva voce evidence on 24th July 2025. A total of 2 witnesses testified. I shall set out below a precis of their evidence.
7. The first witness was Dr Nafisa Ahmed Seif. Dr Nafisa is a consultant psychiatrist working at Port Reitz Hospital, Mombasa, at its Mental Health Unit. She has a Master's degree in Psychiatry from the University of Nairobi. Dr Nafisa testified that she examined the ward on 24th March 2025. He was brought to her clinic by his relatives. At the time she saw him, he was actively hallucinating.
8. Dr Nafisa testified that the Ward has schizophrenia. The said condition is incurable but can be managed with drugs. She stated that the patient must take medication; otherwise, the condition would worsen. The witness produced the medical report, which she had prepared.
9. The second witness was Eshe Hussein Khamis. Eshe is the Ward's daughter. She testified that her father has mental health challenges, which made it difficult for him to manage his affairs. She was apprehensive that he could be taken advantage of. Ms Eshe prayed that orders be issued so that he and the co-applicants could manage the affairs of their father. She testified that there is pending litigation that requires action. The applicants would only be able to act if this Court appoints them.
10. Ms Eshe Khamis testified that there were 3 in the family only, as their mother is divorced. She prayed that orders be issued.
11. The Court did not see the Ward. According to what was stated, the Ward is unmanageable and would have disrupted the Court proceedings. Given the doctor's emphatic report, I dispensed with the presence of the Ward during the hearing.
12. The co-applicants, Khamis Hussein Khamis and Rukiya Hussein Khamis, were present during the hearing and supported the application.
13. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:-
1. Whether the patient suffers from mental illness? and
2. If so, what order should be issued?
14. The appointment of a manager of the estate of a person with mental illness is made under section 27 of the Mental Health Act, as amended in 2022. A manager’s duty is to safeguard the patient's property. The appointment of a Manager must be published in the Kenya Gazette (section 27(4) of the said Act). Any person with probable cause may object to the appointment within 14 days of the publication of the notice. Section 28 (4) of the said Act provides that:-
“A manager shall perform the manager’s duty under this Act responsibly, taking into account the best interests of the estate of the person suffering from mental illness.”
15. Under the Mental Health Act, the application for administration may be made by a “supporter” or “representative” of the person with mental illness, in that order. Although Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis are not the “supporters” of the Ward, as they weren’t appointed in writing, it is my finding that being his children, they are the Ward’s “representatives,” within the meaning of the Act and, therefore, have locus to file the instant application.
16. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:-
“The Petitioners have sought to be declared as guardians and managers of the patient. To merit the above orders, the petitioners must adduce evidence sufficient to satisfy the Court, firstly that the patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the patient is incapable of managing her own affairs.”
17. I would add that the third test is whether the application is in the patient's best interest. People with mental illnesses have diminished capacities to manage their affairs, analogous to those of children. Therefore, the court must ensure the application was filed in the patient's interest. Additionally, the court's orders must be designed to achieve this goal.
18. The evidence adduced shows that Mr Hussein Khamis Mohamed has schizophrenia. Dr Nafisa Ahmed Seif noted that the Ward had paranoid delusions and auditory hallucinations. She formed the professional opinion that the Ward has schizophrenia, which would require medication to be administered orally or through injections. She diagnosed his condition as a mental illness. Given the findings of the said doctor and the Ward’s present situation, it is my view that he suffers from a mental illness.
19. The applicants averred that the Ward could be taken advantage of by unscrupulous people. The Ward is a retired teacher with his properties. There is apprehension that without management, the said properties may be wasted. The applicants testified that a court case needs to be pursued, which requires the appointment of a guardian ad litem or guardians ad litem. Treatment of mental illnesses is expensive. Being ill, the Patient may not appreciate the need for treatment nor be able to manage the treatment regimen. The appointment of the applicants as the Ward's guardians ad litem and also the managers will enable them to access his funds, so that he can pay for the nursing care and medication and commence or defend suits on his behalf.
20. The first applicant’s testimony and the medical professional’s report show that the patient cannot manage his affairs. Therefore, it will be in his best interest to appoint managers to take care of his estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible, that his estate is not wasted or lost, and that his interests, including in matters pending in court, are protected.
21. I am satisfied, based on the evidence adduced, that the Ward has a mental illness. There is, therefore, a case for the appointment of the applicants as the joint guardians ad litem of the Ward, Mr Hussein Khamis Mohamed, and the manager of his estate. In the circumstances, I order as follows:-
1. The applicants, Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis, are hereby appointed as the guardians ad litem of the Ward, Mr Hussein Khamis Mohamed , and also the managers of his estate;
2. Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis shall manage the Ward’s estate but shall not have the power to sell, charge or otherwise alienate his immovable property without the leave of the Court;
3. Pursuant to section 27(4) of the Mental Health Act, the appointment of the manager/guardians ad litem shall be published in the Kenya Gazette;
4. The manager/guardian ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of his appointment; and
5. I make no orders as to costs.
22. Orders accordingly.
23. It is so ordered.
Dated and signed at Mombasa, this 4th day of August 2025. Delivered virtually through Microsoft TEAMS.
2. The applicants deposed to a joint affidavit sworn on 8th April 2025 in which they averred that they were seeking guardianship over the Ward. The Ward, a retired teacher formerly of Mkwambani Primary School, in Kinondo, Kwale County, is currently undergoing treatment at Mombasa Women Rehabilitation Centre for schizophrenia, a condition that has impaired his ability to manage his affairs.
3. They deposed that upon becoming mentally ill, the Ward began to neglect his hygiene, became overly religious and irritable, and started talking to himself. He has also wandered and slept in the street and has been aggressive towards those around him. He was admitted to Port Reitz Hospital in 2022 due to the severity of his condition and has been undergoing treatment there since then.
4. The applicants stated that, given his condition, the Ward was unable to make decisions for himself. That being so, his personal, medical, and financial matters required management by guardians appointed by the Court. They stated that, as family members, they were well-placed to serve as guardian ad litem. They averred that they were competent and that it would be in the Ward's best interest for them to be appointed as guardians ad litem.
5. The applicants attached their birth certificates, photographs they took with the Ward as well as a medical report dated 24th March 2025 prepared by Dr Nafisa Ahmed Seif, set I, in which the said doctor, in his prognosis, identified the illness afflicting the patient as schizophrenia. She put the Ward on oral medication and “intramuscular depot of injections.”
6. The matter was heard by way of viva voce evidence on 24th July 2025. A total of 2 witnesses testified. I shall set out below a precis of their evidence.
7. The first witness was Dr Nafisa Ahmed Seif. Dr Nafisa is a consultant psychiatrist working at Port Reitz Hospital, Mombasa, at its Mental Health Unit. She has a Master's degree in Psychiatry from the University of Nairobi. Dr Nafisa testified that she examined the ward on 24th March 2025. He was brought to her clinic by his relatives. At the time she saw him, he was actively hallucinating.
8. Dr Nafisa testified that the Ward has schizophrenia. The said condition is incurable but can be managed with drugs. She stated that the patient must take medication; otherwise, the condition would worsen. The witness produced the medical report, which she had prepared.
9. The second witness was Eshe Hussein Khamis. Eshe is the Ward's daughter. She testified that her father has mental health challenges, which made it difficult for him to manage his affairs. She was apprehensive that he could be taken advantage of. Ms Eshe prayed that orders be issued so that he and the co-applicants could manage the affairs of their father. She testified that there is pending litigation that requires action. The applicants would only be able to act if this Court appoints them.
10. Ms Eshe Khamis testified that there were 3 in the family only, as their mother is divorced. She prayed that orders be issued.
11. The Court did not see the Ward. According to what was stated, the Ward is unmanageable and would have disrupted the Court proceedings. Given the doctor's emphatic report, I dispensed with the presence of the Ward during the hearing.
12. The co-applicants, Khamis Hussein Khamis and Rukiya Hussein Khamis, were present during the hearing and supported the application.
13. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:-
1. Whether the patient suffers from mental illness? and
2. If so, what order should be issued?
14. The appointment of a manager of the estate of a person with mental illness is made under section 27 of the Mental Health Act, as amended in 2022. A manager’s duty is to safeguard the patient's property. The appointment of a Manager must be published in the Kenya Gazette (section 27(4) of the said Act). Any person with probable cause may object to the appointment within 14 days of the publication of the notice. Section 28 (4) of the said Act provides that:-
“A manager shall perform the manager’s duty under this Act responsibly, taking into account the best interests of the estate of the person suffering from mental illness.”
15. Under the Mental Health Act, the application for administration may be made by a “supporter” or “representative” of the person with mental illness, in that order. Although Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis are not the “supporters” of the Ward, as they weren’t appointed in writing, it is my finding that being his children, they are the Ward’s “representatives,” within the meaning of the Act and, therefore, have locus to file the instant application.
16. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:-
“The Petitioners have sought to be declared as guardians and managers of the patient. To merit the above orders, the petitioners must adduce evidence sufficient to satisfy the Court, firstly that the patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the patient is incapable of managing her own affairs.”
17. I would add that the third test is whether the application is in the patient's best interest. People with mental illnesses have diminished capacities to manage their affairs, analogous to those of children. Therefore, the court must ensure the application was filed in the patient's interest. Additionally, the court's orders must be designed to achieve this goal.
18. The evidence adduced shows that Mr Hussein Khamis Mohamed has schizophrenia. Dr Nafisa Ahmed Seif noted that the Ward had paranoid delusions and auditory hallucinations. She formed the professional opinion that the Ward has schizophrenia, which would require medication to be administered orally or through injections. She diagnosed his condition as a mental illness. Given the findings of the said doctor and the Ward’s present situation, it is my view that he suffers from a mental illness.
19. The applicants averred that the Ward could be taken advantage of by unscrupulous people. The Ward is a retired teacher with his properties. There is apprehension that without management, the said properties may be wasted. The applicants testified that a court case needs to be pursued, which requires the appointment of a guardian ad litem or guardians ad litem. Treatment of mental illnesses is expensive. Being ill, the Patient may not appreciate the need for treatment nor be able to manage the treatment regimen. The appointment of the applicants as the Ward's guardians ad litem and also the managers will enable them to access his funds, so that he can pay for the nursing care and medication and commence or defend suits on his behalf.
20. The first applicant’s testimony and the medical professional’s report show that the patient cannot manage his affairs. Therefore, it will be in his best interest to appoint managers to take care of his estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible, that his estate is not wasted or lost, and that his interests, including in matters pending in court, are protected.
21. I am satisfied, based on the evidence adduced, that the Ward has a mental illness. There is, therefore, a case for the appointment of the applicants as the joint guardians ad litem of the Ward, Mr Hussein Khamis Mohamed, and the manager of his estate. In the circumstances, I order as follows:-
1. The applicants, Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis, are hereby appointed as the guardians ad litem of the Ward, Mr Hussein Khamis Mohamed , and also the managers of his estate;
2. Eshe Hussein Khamis, Khamis Hussein Khamis, and Rukiya Hussein Khamis shall manage the Ward’s estate but shall not have the power to sell, charge or otherwise alienate his immovable property without the leave of the Court;
3. Pursuant to section 27(4) of the Mental Health Act, the appointment of the manager/guardians ad litem shall be published in the Kenya Gazette;
4. The manager/guardian ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of his appointment; and
5. I make no orders as to costs.
22. Orders accordingly.
23. It is so ordered.
Dated and signed at Mombasa, this 4th day of August 2025. Delivered virtually through Microsoft TEAMS.