Introduction:
1. In the fullness of time, this court will have to be guided by copious statutes, superior court decisions, and charters which shall act as anchorage and resets the motion, even as I delve into mental petitions in this country, as well as from persuasive jurisdictions. I may now sample a few, for the purposes of having a handle of the matter.
2. In English Vs Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 at paragraph 17 for the position where expert evidence is rejected, and also relies on what Dyson LJ said in R Vs Ashworth Hospital Authority and the Mental Health Review Tribunal at paragraph 80, where he stated that: "[A tribunal which is rejecting expert evidence] must at least indicate the reasoning process by which they have decided to accept some and reject other evidence. "
3. In Winterwerp Vs The Netherlands [1979] 2 EHRR 387, 403, paragraph 39: "In the court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
In the case of Wilson J in R v (DR) Vs Mersey care NHS Trust (2002] EWHC 1810 at paragraph 30, Wilson J expressed himself: "... whether a significant component of the plan for the claimant was for treatment in hospital. It is worth noting that, by section 145(1) of the Act, the words 'medical treatment' include rehabilitation under medical supervision. There is no doubt, therefore, that the proposed leave of absence for the claimant is properly regarded as part of her treatment plan. As para 20.1 of the Code of Practice states, 'leave of absence can be an important part of a patient's treatment plan'. Its purpose was to preserve the claimant's links with the community; to reduce the stress caused by hospital surroundings which she found particularly uncongenial; and to build a platform of trust between her and the clinicians upon which dialogue might be constructed and insight on her part into her illness engendered."
4. In the Family Miscellaneous Application dated 17th June, 2026, the applicant seeks the following four reliefs under sections 26, 27, 28 and 29 of the Mental Health Act Cap 248 of the Laws of Kenya, Section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of Law.
a. A Declaration do issue that the subject, N.K.M, is incapacitated and incapable of managing her own affairs within the meaning of Mental Health Act, Cap 248, Laws of Kenya.
b. An Order do issue appointing Faith Mwendwa Mwiti as the Legal Guardian of N.K.M.
c. An order does issue to appoint the Petitioner as the manager of Estate of the N.K.M. granting her full access and instructional authority over all properties, bank accounts, and funds held in the name of the valid instructional authority for the general management of her affairs.
d. An order directing all funds derived from ICEA Lion Trust Company Limited under member Number KHDDF-043 BE channelled strictly into the medical bills, medication, nursing care and general daily maintenance of the subject.
e. The cost of this petition to be paid out of the subjects Estate.
5. The applicant, Faith Mwendwa Mwiti ID No. 29381934, in her sworn an affidavit in support of the Petition, she gave sworn testimony reiterating the averments in the supporting affidavit The witness told court that the subject is her biological mother together with the immediate members of the family who have consented to this application as evidence by copy of the birth certificate and National ID card, together with a family consent by other members of the Family.
6. The subject is critically ill and suffers from absolute physical and cognitive incapacitation. On account of this illness, she is unable to perform basic personal hygiene, make choices, or execute any financial transactions to care for herself, as evidenced by the official Medical/Psychiatric Evaluation Report.
7. The subject is a legal holder of active financial portfolios and investment funds with Icea Lion Company Limited under member number KHDDF-043. The hospital accumulation and home nursing care fees have completely overwhelmed the family’s current cash reserves, making it imperative to access the funds held by Icea Lion Company Limited under her membership card.
7. That Icea Lion Company Limited has failed to release the funds without a valid court Order for lack of capacity to sign authorization or withdrawals mandates. The applicant is ready, willing and capable acting as her legal guardian and manager of her funds.
Analysis and Determination:
8. It is clear from the observation of the doctor that the subject is suffering from dementia. In Medilineplus US National Library of Medicine 14th May 2015, the term dementia, also known as senility. This is a broad category of brain diseases that cause a long term and often gradual decrease in the ability to think and remember that is great enough to affect a person's daily functioning. Meriam-Webster, defines it as a condition that affects the mind of aging people and causes them to be confused, to forget things, etc. Dementia is an umbrella term for a group of cognitive disorders typically characterized by memory impairment, as well as marked difficulty in the domains of language, motor activity, object recognition, and disturbance of executive function – the ability to plan, organize, and abstract. Generally speaking, dementia is an illness of older adults.
9. The subject in this petition is critically ill as exhibited by a Medical Report from Fatima Mission Hospital dated 2nd June 2026. In this report, covered are clinical examination, Musculoskeletal examination, skin assessment and recommendation. The conclusion and recommendation of the attendant Doctor/Clinical Officer had the following to say; “… given the patient’s advanced age, dementia, immobility and pressure sores, a multidisciplinary approach involving medical, nursing, nutritional and physiotherapy support is strongly recommended to improve comfort, prevent complications and maintain quality of life.”
10. The medical evidence adduced show, that the subject is suffering from senile dementia and is incapable of protecting his interests.
11. I also note, that all the three siblings Carolyne Ncekei Mwiti and Lydia Kathambi Mwiti have formally declared their consent and authorization regarding care and representation of the subject who is their mother by their sister Faith Mwendwa Mwiti.
12. Consequently, this court issues the following Orders.
a. A declaration Order do hereby that the subject herein issue that N.K.M is incapacitated and incapable of managing her own affairs within the meaning of the Mental Health Cap 248 laws of Kenya.
b. An Order do issue appointing Faith Mwendwa Mwiti as the legal guardian of N.K.M.
c. An Order do issue appointing the Petitioner as the Manager of the Estate of N.K.M. granting her lawful access and valid instructional authority over all properties, bank accounts, and funds held in the name of the valid instructional authority for the general management of her affairs.
d. An Order do issue directing all funds derived from ICEA Lion Trust Company Limited under member Number KHDDF-043, be channelled strictly into the medical bills, medication, nursing care and general daily maintenance of the subject.
e. Cost of the petition to be paid by the subjects Estate.
Delivered in the open court virtually this 24th June, 2026 in the presence of Brian-CA,Ms AumaAdvocate, Petitioner and all interested parties.
1. In the fullness of time, this court will have to be guided by copious statutes, superior court decisions, and charters which shall act as anchorage and resets the motion, even as I delve into mental petitions in this country, as well as from persuasive jurisdictions. I may now sample a few, for the purposes of having a handle of the matter.
2. In English Vs Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 at paragraph 17 for the position where expert evidence is rejected, and also relies on what Dyson LJ said in R Vs Ashworth Hospital Authority and the Mental Health Review Tribunal at paragraph 80, where he stated that: "[A tribunal which is rejecting expert evidence] must at least indicate the reasoning process by which they have decided to accept some and reject other evidence. "
3. In Winterwerp Vs The Netherlands [1979] 2 EHRR 387, 403, paragraph 39: "In the court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
In the case of Wilson J in R v (DR) Vs Mersey care NHS Trust (2002] EWHC 1810 at paragraph 30, Wilson J expressed himself: "... whether a significant component of the plan for the claimant was for treatment in hospital. It is worth noting that, by section 145(1) of the Act, the words 'medical treatment' include rehabilitation under medical supervision. There is no doubt, therefore, that the proposed leave of absence for the claimant is properly regarded as part of her treatment plan. As para 20.1 of the Code of Practice states, 'leave of absence can be an important part of a patient's treatment plan'. Its purpose was to preserve the claimant's links with the community; to reduce the stress caused by hospital surroundings which she found particularly uncongenial; and to build a platform of trust between her and the clinicians upon which dialogue might be constructed and insight on her part into her illness engendered."
4. In the Family Miscellaneous Application dated 17th June, 2026, the applicant seeks the following four reliefs under sections 26, 27, 28 and 29 of the Mental Health Act Cap 248 of the Laws of Kenya, Section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of Law.
a. A Declaration do issue that the subject, N.K.M, is incapacitated and incapable of managing her own affairs within the meaning of Mental Health Act, Cap 248, Laws of Kenya.
b. An Order do issue appointing Faith Mwendwa Mwiti as the Legal Guardian of N.K.M.
c. An order does issue to appoint the Petitioner as the manager of Estate of the N.K.M. granting her full access and instructional authority over all properties, bank accounts, and funds held in the name of the valid instructional authority for the general management of her affairs.
d. An order directing all funds derived from ICEA Lion Trust Company Limited under member Number KHDDF-043 BE channelled strictly into the medical bills, medication, nursing care and general daily maintenance of the subject.
e. The cost of this petition to be paid out of the subjects Estate.
5. The applicant, Faith Mwendwa Mwiti ID No. 29381934, in her sworn an affidavit in support of the Petition, she gave sworn testimony reiterating the averments in the supporting affidavit The witness told court that the subject is her biological mother together with the immediate members of the family who have consented to this application as evidence by copy of the birth certificate and National ID card, together with a family consent by other members of the Family.
6. The subject is critically ill and suffers from absolute physical and cognitive incapacitation. On account of this illness, she is unable to perform basic personal hygiene, make choices, or execute any financial transactions to care for herself, as evidenced by the official Medical/Psychiatric Evaluation Report.
7. The subject is a legal holder of active financial portfolios and investment funds with Icea Lion Company Limited under member number KHDDF-043. The hospital accumulation and home nursing care fees have completely overwhelmed the family’s current cash reserves, making it imperative to access the funds held by Icea Lion Company Limited under her membership card.
7. That Icea Lion Company Limited has failed to release the funds without a valid court Order for lack of capacity to sign authorization or withdrawals mandates. The applicant is ready, willing and capable acting as her legal guardian and manager of her funds.
Analysis and Determination:
8. It is clear from the observation of the doctor that the subject is suffering from dementia. In Medilineplus US National Library of Medicine 14th May 2015, the term dementia, also known as senility. This is a broad category of brain diseases that cause a long term and often gradual decrease in the ability to think and remember that is great enough to affect a person's daily functioning. Meriam-Webster, defines it as a condition that affects the mind of aging people and causes them to be confused, to forget things, etc. Dementia is an umbrella term for a group of cognitive disorders typically characterized by memory impairment, as well as marked difficulty in the domains of language, motor activity, object recognition, and disturbance of executive function – the ability to plan, organize, and abstract. Generally speaking, dementia is an illness of older adults.
9. The subject in this petition is critically ill as exhibited by a Medical Report from Fatima Mission Hospital dated 2nd June 2026. In this report, covered are clinical examination, Musculoskeletal examination, skin assessment and recommendation. The conclusion and recommendation of the attendant Doctor/Clinical Officer had the following to say; “… given the patient’s advanced age, dementia, immobility and pressure sores, a multidisciplinary approach involving medical, nursing, nutritional and physiotherapy support is strongly recommended to improve comfort, prevent complications and maintain quality of life.”
10. The medical evidence adduced show, that the subject is suffering from senile dementia and is incapable of protecting his interests.
11. I also note, that all the three siblings Carolyne Ncekei Mwiti and Lydia Kathambi Mwiti have formally declared their consent and authorization regarding care and representation of the subject who is their mother by their sister Faith Mwendwa Mwiti.
12. Consequently, this court issues the following Orders.
a. A declaration Order do hereby that the subject herein issue that N.K.M is incapacitated and incapable of managing her own affairs within the meaning of the Mental Health Cap 248 laws of Kenya.
b. An Order do issue appointing Faith Mwendwa Mwiti as the legal guardian of N.K.M.
c. An Order do issue appointing the Petitioner as the Manager of the Estate of N.K.M. granting her lawful access and valid instructional authority over all properties, bank accounts, and funds held in the name of the valid instructional authority for the general management of her affairs.
d. An Order do issue directing all funds derived from ICEA Lion Trust Company Limited under member Number KHDDF-043, be channelled strictly into the medical bills, medication, nursing care and general daily maintenance of the subject.
e. Cost of the petition to be paid by the subjects Estate.
Delivered in the open court virtually this 24th June, 2026 in the presence of Brian-CA,Ms AumaAdvocate, Petitioner and all interested parties.