REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
IN THE MATTER OF AN APPLICATION A GUARDIAN AS LITEM FOR BARNABAS KYALO MAKENZI (PERSON OF UNSOUND MIND)
GREGORY MAKENZI MUTUA …………………………. 1 ST APPLICANT
FRANCISCA MUTETE MAKENZI ………..…………… 2 ND APPLICANT
-VS-
BARNABAS KYALO MAKENZI (BMK) …………….……RESPONDENT
JUDGMENT
1. What is before me is the contestation between a father, a wife and a son – as to who is best placed to be appointed as guardian ad litem of Barnabas Kyalo Makenzi ( the subject)
2. To that end there is filed an Originating Summons dated 15/9/2024 by Gregory Makenzi Mutia and Francisca Mutete Makenzi the parents of Barnabas Kyalo Makenzi. They seek orders;
a. that the court do a point the applicant as the guardian ad litem BMK
b. That the court appoint the applicant as Guardian ad litem of BMK in respect of suing and being sued
c. That the court do adjudge that BMK is not fit to sue and be sued due to his mental illness
d. That an order do issue to adjudge BMK as not fit to protect his interests due to his mental illness.
e. That Gregory Mackenzie and Francisca Mutete Mackenzie the mother and father be appointed to manage the affairs of BMK.
3. The reasons for seeking these orders are set out on the face of the originating summons and the supporting affidavit is sworn by Gregory and Francisca. Mainly that BMK was involved in a traffic accident on 6 th December 2016, sustained serious head injuries resulting in loss of memory and dementia; that the applicants intend to file a suit on behalf of BMK seeking compensation by way of general and special damages for the injuries sustained from the accident; that prior to the accident BMK had a wife and children who deserted him after the accident leaving the parents to take up his welfare; that the parents live with him and fully take care of him; that the marriage between the BMK and his wife irretrievably broke down and it is the interest of justice that the divorce be filed on behalf of BMK : that due to the mental illness BMK is unable to bring a suit on his behalf or defend himself or make decisions for himself or manage his affairs or protect his interests.
4. To their supporting affidavit is annexed a police abstract dated 14 th December 2017, medical report from Mediheal Diagnostic Dialysis and Daycare Center dated 9 th January 2017, P-3 by the police surgeon Dated 6 th February 2016, showing that he was sent to the Police Surgeon on 13 th December 2017, discharge summary from Kenyatta National Hospital showing date of admission as 6 th February 2016 and date of discharge as 12 April 2016.
5. Also filed is a letter from the chief Kathonzweni dated 28 th August 2024 confirming that BMK was married to Faith Musengya and had two children, a mental assessment report from the medical superintendent Makueni County referral hospital Dated 11 th September 2023, medical reports from Kenyatta National Hospital dated 15 th & 16 th November 2018.
6. They depone that on 6/12/2016 Barnabas was involved in a Road Traffic Accident along Tom Mboya Ronald Ngala Road in Nairobi. He sustained serious injuries to head – with subdural hematoma.
7. A report from Kenyatta National Teaching and Referral Hospital dated 15/11/2018 states that “currently he has right sided weakness and suffers from memory lapses and poor vision.”
8. A mental assessment report dated 11/9/2023 from the Makueni County Referral Hospital states that – he had at the time of examination reduced testamentary capacity and there was visceral dementia.
9. In the supporting affidavit to the Originating Summons, the applicants state that from the above, they had hoped their son would improve but that he has continued to deteriorate – he has been unable to file suit for compensation on his own or even to manage his own affairs.
10. It is also deponed that his wife and children deserted him after the accident, and that the applicants had been taking care of his welfare.
11. It is further deponed that the marriage between him and his wife has irretrievably broken down, and that it is necessary for the appointed guardian ad item to file divorce proceedings on his behalf-
12. That the applicants intend to file a suit seeking compensation on his behalf, and divorce – as he was no longer able to protect his interests.
13. Upon reading the affidavit – I directed that the wife be served to appear in person together with their children.
14. Faith Mwanza and (wife) Wayne Makenzi Kyalo (son) appeared in person on 24/2/2025. Daniel Wambua Makenzi a brother to Barnabas was also present .
15. The court proposed that it was easy for parties to agree on representation of the Barnabas now that they were all in court. There was a long discussion off the record where the court tried to understand the rival positions. Faith proposed that Wayne be appointed guardian of his father, instead of her father in law and her father in law Gregory halted the conversation stating that he needed to discuss the other members of the family. The matter was adjourned but at the next date , it turned out that the discussion did not bring any reconciliation – because Gregory was of the view that Faith and her children had not been in his life and had no relationship with him. He was of the view that for those reasons they had no relationship with him – and could not be allowed to take change of his affairs. Wayne on his part said he had related well with his father up to the last three years when matters broke down with his grandfather.
16. I directed Faith and Wayne to respond to the adverse statements made against them through a replying affidavit. Vide an affidavit sworn on 20 th June 2025 Faith deponed that it was true that her husband was involved in a road traffic accident in February 2016 was admitted in Kenyatta Hospital, discharged and stayed with them till November 2016 when her in- laws came for him at Eastleigh saying that the doctors had recommended that he needed more space to heal faster. That she continued to visit her husband till 2020, when her relationship with her in- laws broke down, and they would not allow her to see him.
17. She stated further that the issue here was the compensation that was expected from the RTA .
18. She added that she had not divorced her husband and attached the marriage certificate – and was raising their 2 children whose birth certificates she also attached, single handedly. It was her proposal that she and her son be appointed the guardians of her husband.
19. I heard oral testimony from both sides.
20. Gregory testified that he wanted to be appointed Guardian of BKM who was his first born son. He testified that BKM had a wife who ran away and for the last eight years she had taken off with the children. He said that at that time she was leaving him BKM was in Pampers. He told the court that he was about 79 years old and did not have anyone else to take care of BKM. He said that there was need for divorce to be filed in BKM’s behalf and that if he was made the Guardian, he would be happy to file divorce on his behalf He also said that there was a case for compensation which he wanted to find on his behalf . He said he had served the wife and the son but they had not agreed on anything.
21. On cross examination he said that he wanted to be guardian despite the fact that BKM had children because Faith had run away from him for the last eight years .
22. Asked by the grandson Why he wanted to take care of their father he told the court that since BKM was injured he is the one who was taking him to hospital , to home and that Ukambani was a safe place as compared to Nairobi which he described as risky he told Wayne that he was too young to take care of his father
23. Faith told the court that the material time she was living in Kasarani she was a business woman. She said she had two children with BMK Wayne and aged 16 years old. She said she objected to the application because BKM had his own children and that Wayne could be in charge of his father’s issues.
24. On cross examination the applicant asked Faith how Wayne would feed his father. He asked her whether BKM would eat stones ? Her response was: what do you think the children eat ? He asked whether Wayne was working, whether Wayne had money and how he would take care of his father. Faith told the court that she would assist Wayne.
25. It appeared to me that the exchange was about how BKM would be assisted after the compensation money (if any) had been paid .
26. The applicant told the court that his daughter in law was now bringing complications and that he wanted to take care of his first born son who was her husband because he loved him and that when she wanted to come home, she could do that.
27. On his part Wayne testified that his name is Jnr Wayne Makenzi KYALO and he said was a student at the University of Nairobi that the applicant was his grandfather and BKM was his father he wondered how his grandfather would manage to take care of his father while he was aging and that he had come to court because he had been summoned to come to court and had nothing else to say
28. From the foregoing the issues for determination are;
i. Whether BKM is a person to whom Section 26(1) of the Mental Health Act applies.
ii. Who should be the guardian ad litem for the purposes set out by the applicant; To
- File suit for compensation for the injuries sustained in the Road traffic accident.
- File divorce on behalf of BKM
- Take care of his estate and other affairs.
29. A person who falls under the Mental Health Act is one who is a “person with mental illness” which means as per s. 2 a person diagnosed by a qualified mental health practitioner to be suffering from mental illness , and includes—(a)a person diagnosed with alcohol or substance use disorder; and(b)a person with suicidal ideation or behaviour ;
30. The applicable principles are set out under s. 26 of the Mental Health Act and Order 32 of the Civil Procedure Rules
31. In M M M v A M K [2016] eKLR the court interpreted the two step process. The court states:
The correct interpretation of order 32 rule 15 of the Civil Procedure Rules, 2010 contemplated a judicial inquiry. The words used in the rule were “to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued”. That was an inquiry prescribed by the law under the rule where two stages ought to be complied with to satisfy the rule
1. Questioning the person by the court
2. Medical evidence
32. The medical evidence shows that BMK initially had weakness of the right side & memory lapses and poor vision, later he was examined by a psychiatrist who found that he had reduced testamentary capacity, and dementia of vascular type, making him to need assistance. The report indicated that his Appearance and behavior, mood ,thoughts, orientation, speech, perceptions, memory, concentration, judgment and insight were all abnormal drawing the conclusion that he had current mental illness.
33. I conducted the inquiry. It was extra ordinary that when questioned by the court, he would recall his parents, his siblings, the number and names and that he had one sister only, but would not recall – his wife, and his children – his response was sina familia, – sijui mtu kama huyo-
34. He could not recall the day of the week or why exactly he was in court.
35. Faith however told the court that when they came into court with Wayne, he recognized them. It can be deduced that this is the effect of his frequent interactions with his parents and siblings brothers and sisters he can recall them but has been separated from his immediate family for long. According to Wayne, three years, according to his wife, 5 years , according to his father , 8 years . In total for him it is 8 years each, total 24 years of memories not made. One can understand if he does not recall them. I doubt that it would be in the best interests of BKM to continue to deny him access to his nuclear family. It is in his best interests that they all come together and help him to make good memories and to retain them. Each of his family members should be involved to find a way to narrow that forgetfulness.
36. That said I am not in doubt that he falls within the definition given by section 2 and brings him into the purview of s. 26 of the Mental Health Act, and Order 32 of the Civil Procedure Rules.
Does he need guardian ad litem and who should that be?-
37. Under the Civil Procedure Rules – Order 32 Rule 3(2) of the Civil Procedure Rule, as read with Order 32 Rule 15 – provides for the appointment of a guardian ad litem for persons adjudged by court to be person of “unsound mind and mental infirmity, to be incapable of protecting their interests when suing or being sued.”
38. S. 26 of the Mental Health Act states: Application for administration
(1) An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—
(a)a supporter of the person with mental illness; or
(b) the representative of the person where the person with mental illness has not appointed a supporter.
(2) An application under subsection (1) shall be submitted together with an affidavit setting out—
(a)the grounds upon which the application is made;
(b)the full particulars as to the property and relatives of the person to whom it relates; and
(c)a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.
(3)A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—
(a)person in respect of whom the application is made; or
(b)where an application is made by a supporter to the representative of the person with mental illness.
(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given .
(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.
(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—
(a)court to examine the person; or
(b)person to be examined by a qualified registered mental health practitioner.
39. Section 2 of the Mental Health Act defines “supporter” to mean a person appointed under section 3I by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness; “representative” to mean –
(a)a spouse of that person, or if unable or unwilling;
(b)the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling;
(c)a parent of that person, or if unable or unwilling;
(d)a relative of that person, or if unable or unwilling; or
(e)a person under whose care or charge the person with mental illness is;
40. It is evident that the mental health Act has changed the arena by giving the person with mental illness the agency to choose the person to take care of their welfare. In my view Order 32 must be read together with s. 26 of the Mental Health Act as If the person appoints a supporter, then that is the person. In this case BMK has not appointed a supporter . According to the Act the representative is the next in line. The Act creates a hierarchy of representatives giving priority to the spouse and children and the parents coming third, the default is unable or unwilling. If the representative is able and willing then the court will assign.
41. In this case I became aware of underlying issues between the immediate family of BMK and the parents of BMK. These are issues that ought not to play in the search for the well-being of BMK because on the face of it , he requires all the parties herein for his wellbeing. For instance – how can the father and mother of BMK seek to be guardians so as to divorce the subject from his wife? At this juncture how would the court even know that that is his wish.? The underlying issues will need to be resolved. His parents cannot purport to determine for him that his marriage is irretrievable broken under the guise of protecting the interests of their son- he is still married to his wife, he is still the father to his children- despite his mental health issues.
42. Having said that it is clear from the record that BMK’s wife and son are willing to be the representative of BMK. They are ready to take up the responsibility as the immediate family and do not understand why the Applicant would want to be BMK’s guardian ad litem , yet he has his family. The mental Health Act gives the answer.
43. In this case the applicant presented three issues that he wants to do if appointed: the management of the estate/ affairs of BMK, the filing of the suit for his compensation and the filing of divorce against BMK’s spouse.
44. On the filing of the suit Order 32 rule 4 states
Who may act as next friend or be appointed guardian for the suit
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian ad litem:
45. In my considered view the Mental health Act already has given us the persons who can be appointed as guardian ad litem for purposes of filing suit: The supporter appointed by the person with mental Illness and in their absence the representative as defined by the Act. The supporter or the representative of the person with mental health illness has superior rights over any given person.
46. Considering the circumstances of this case- where BMK has been separated from his spouse and children for a long time , and where the family and his parents want the same thing for him, it is my view that any suit filed on his behalf his wife and or his son be involved. That means that they would have to cooperate and work together. Hence the, Father of BMK and the spouse and the son , or the spouse or the son to file suit jointly.
47. On the management and administration of his personal affairs the Act is specific. BMK is married to Faith. She has the statutory obligation to run manage his estate and his personal affairs. Hence Faith is appointed as such as per s. 2 as read with s. 26 of the mental health Act.
48. Regarding the issue of the filing of the divorce, the applicant will have to make a specific application to be appointed to for this purpose and to serve both BMK and the spouse
49. In the circumstance the application is partially successful in the following terms :
i. BMK is adjudged as a person with mental illness as defined by Section 26(1) of the Mental Health Act. He is not fit to sue or be sued, manage his affairs or protect his interests.
ii. Gregory Makenzi Mutia, Faith Mwanza and Wayne Makenzi Kyalo be and are hereby appointed in terms of order 32 rule 4 as read with Rule 15 of the Civil Procedure Rules and s. 26 of the Mental Health Act, as joint guardians ad litem for purposes of filing suit for compensation on behalf of BMK . Faith and Wayne have the liberty to decide if they both want to be in the suit or only one of them will be in the suit.
iii. Faith Mwanza be and is hereby appointed as the manager of the estate and affairs of BMK in accordance with s. 2 (a) as read with s. 26 of the Mental Health Act.
iv. On the issue of filing of Divorce Proceedings, the applicant is directed to make a specific application to be appointed for this purpose and which application will have to be served upon both BMK and the spouse, Faith Mwanza.
v. No orders as to costs
vi. Orders accordingly.
Dated , signed and delivered virtually this 19 th December 2025
Mumbua T. Matheka
Judge
Applicant Present in open Court
Faith & Present Virtually
Court Assistant – Chrispol
Judgment HC MISC E134 of 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
IN THE MATTER OF AN APPLICATION A GUARDIAN AS LITEM FOR BARNABAS KYALO MAKENZI (PERSON OF UNSOUND MIND)
GREGORY MAKENZI MUTUA …………………………. 1 ST APPLICANT
FRANCISCA MUTETE MAKENZI ………..…………… 2 ND APPLICANT
-VS-
BARNABAS KYALO MAKENZI (BMK) …………….……RESPONDENT
JUDGMENT
1. What is before me is the contestation between a father, a wife and a son – as to who is best placed to be appointed as guardian ad litem of Barnabas Kyalo Makenzi ( the subject)
2. To that end there is filed an Originating Summons dated 15/9/2024 by Gregory Makenzi Mutia and Francisca Mutete Makenzi the parents of Barnabas Kyalo Makenzi. They seek orders;
a. that the court do a point the applicant as the guardian ad litem BMK
b. That the court appoint the applicant as Guardian ad litem of BMK in respect of suing and being sued
c. That the court do adjudge that BMK is not fit to sue and be sued due to his mental illness
d. That an order do issue to adjudge BMK as not fit to protect his interests due to his mental illness.
e. That Gregory Mackenzie and Francisca Mutete Mackenzie the mother and father be appointed to manage the affairs of BMK.
3. The reasons for seeking these orders are set out on the face of the originating summons and the supporting affidavit is sworn by Gregory and Francisca. Mainly that BMK was involved in a traffic accident on 6 th December 2016, sustained serious head injuries resulting in loss of memory and dementia; that the applicants intend to file a suit on behalf of BMK seeking compensation by way of general and special damages for the injuries sustained from the accident; that prior to the accident BMK had a wife and children who deserted him after the accident leaving the parents to take up his welfare; that the parents live with him and fully take care of him; that the marriage between the BMK and his wife irretrievably broke down and it is the interest of justice that the divorce be filed on behalf of BMK : that due to the mental illness BMK is unable to bring a suit on his behalf or defend himself or make decisions for himself or manage his affairs or protect his interests.
4. To their supporting affidavit is annexed a police abstract dated 14 th December 2017, medical report from Mediheal Diagnostic Dialysis and Daycare Center dated 9 th January 2017, P-3 by the police surgeon Dated 6 th February 2016, showing that he was sent to the Police Surgeon on 13 th December 2017, discharge summary from Kenyatta National Hospital showing date of admission as 6 th February 2016 and date of discharge as 12 April 2016.
5. Also filed is a letter from the chief Kathonzweni dated 28 th August 2024 confirming that BMK was married to Faith Musengya and had two children, a mental assessment report from the medical superintendent Makueni County referral hospital Dated 11 th September 2023, medical reports from Kenyatta National Hospital dated 15 th & 16 th November 2018.
6. They depone that on 6/12/2016 Barnabas was involved in a Road Traffic Accident along Tom Mboya Ronald Ngala Road in Nairobi. He sustained serious injuries to head – with subdural hematoma.
7. A report from Kenyatta National Teaching and Referral Hospital dated 15/11/2018 states that “currently he has right sided weakness and suffers from memory lapses and poor vision.”
8. A mental assessment report dated 11/9/2023 from the Makueni County Referral Hospital states that – he had at the time of examination reduced testamentary capacity and there was visceral dementia.
9. In the supporting affidavit to the Originating Summons, the applicants state that from the above, they had hoped their son would improve but that he has continued to deteriorate – he has been unable to file suit for compensation on his own or even to manage his own affairs.
10. It is also deponed that his wife and children deserted him after the accident, and that the applicants had been taking care of his welfare.
11. It is further deponed that the marriage between him and his wife has irretrievably broken down, and that it is necessary for the appointed guardian ad item to file divorce proceedings on his behalf-
12. That the applicants intend to file a suit seeking compensation on his behalf, and divorce – as he was no longer able to protect his interests.
13. Upon reading the affidavit – I directed that the wife be served to appear in person together with their children.
14. Faith Mwanza and (wife) Wayne Makenzi Kyalo (son) appeared in person on 24/2/2025. Daniel Wambua Makenzi a brother to Barnabas was also present .
15. The court proposed that it was easy for parties to agree on representation of the Barnabas now that they were all in court. There was a long discussion off the record where the court tried to understand the rival positions. Faith proposed that Wayne be appointed guardian of his father, instead of her father in law and her father in law Gregory halted the conversation stating that he needed to discuss the other members of the family. The matter was adjourned but at the next date , it turned out that the discussion did not bring any reconciliation – because Gregory was of the view that Faith and her children had not been in his life and had no relationship with him. He was of the view that for those reasons they had no relationship with him – and could not be allowed to take change of his affairs. Wayne on his part said he had related well with his father up to the last three years when matters broke down with his grandfather.
16. I directed Faith and Wayne to respond to the adverse statements made against them through a replying affidavit. Vide an affidavit sworn on 20 th June 2025 Faith deponed that it was true that her husband was involved in a road traffic accident in February 2016 was admitted in Kenyatta Hospital, discharged and stayed with them till November 2016 when her in- laws came for him at Eastleigh saying that the doctors had recommended that he needed more space to heal faster. That she continued to visit her husband till 2020, when her relationship with her in- laws broke down, and they would not allow her to see him.
17. She stated further that the issue here was the compensation that was expected from the RTA .
18. She added that she had not divorced her husband and attached the marriage certificate – and was raising their 2 children whose birth certificates she also attached, single handedly. It was her proposal that she and her son be appointed the guardians of her husband.
19. I heard oral testimony from both sides.
20. Gregory testified that he wanted to be appointed Guardian of BKM who was his first born son. He testified that BKM had a wife who ran away and for the last eight years she had taken off with the children. He said that at that time she was leaving him BKM was in Pampers. He told the court that he was about 79 years old and did not have anyone else to take care of BKM. He said that there was need for divorce to be filed in BKM’s behalf and that if he was made the Guardian, he would be happy to file divorce on his behalf He also said that there was a case for compensation which he wanted to find on his behalf . He said he had served the wife and the son but they had not agreed on anything.
21. On cross examination he said that he wanted to be guardian despite the fact that BKM had children because Faith had run away from him for the last eight years .
22. Asked by the grandson Why he wanted to take care of their father he told the court that since BKM was injured he is the one who was taking him to hospital , to home and that Ukambani was a safe place as compared to Nairobi which he described as risky he told Wayne that he was too young to take care of his father
23. Faith told the court that the material time she was living in Kasarani she was a business woman. She said she had two children with BMK Wayne and aged 16 years old. She said she objected to the application because BKM had his own children and that Wayne could be in charge of his father’s issues.
24. On cross examination the applicant asked Faith how Wayne would feed his father. He asked her whether BKM would eat stones ? Her response was: what do you think the children eat ? He asked whether Wayne was working, whether Wayne had money and how he would take care of his father. Faith told the court that she would assist Wayne.
25. It appeared to me that the exchange was about how BKM would be assisted after the compensation money (if any) had been paid .
26. The applicant told the court that his daughter in law was now bringing complications and that he wanted to take care of his first born son who was her husband because he loved him and that when she wanted to come home, she could do that.
27. On his part Wayne testified that his name is Jnr Wayne Makenzi KYALO and he said was a student at the University of Nairobi that the applicant was his grandfather and BKM was his father he wondered how his grandfather would manage to take care of his father while he was aging and that he had come to court because he had been summoned to come to court and had nothing else to say
28. From the foregoing the issues for determination are;
i. Whether BKM is a person to whom Section 26(1) of the Mental Health Act applies.
ii. Who should be the guardian ad litem for the purposes set out by the applicant; To
- File suit for compensation for the injuries sustained in the Road traffic accident.
- File divorce on behalf of BKM
- Take care of his estate and other affairs.
29. A person who falls under the Mental Health Act is one who is a “person with mental illness” which means as per s. 2 a person diagnosed by a qualified mental health practitioner to be suffering from mental illness , and includes—(a)a person diagnosed with alcohol or substance use disorder; and(b)a person with suicidal ideation or behaviour ;
30. The applicable principles are set out under s. 26 of the Mental Health Act and Order 32 of the Civil Procedure Rules
31. In M M M v A M K [2016] eKLR the court interpreted the two step process. The court states:
The correct interpretation of order 32 rule 15 of the Civil Procedure Rules, 2010 contemplated a judicial inquiry. The words used in the rule were “to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued”. That was an inquiry prescribed by the law under the rule where two stages ought to be complied with to satisfy the rule
1. Questioning the person by the court
2. Medical evidence
32. The medical evidence shows that BMK initially had weakness of the right side & memory lapses and poor vision, later he was examined by a psychiatrist who found that he had reduced testamentary capacity, and dementia of vascular type, making him to need assistance. The report indicated that his Appearance and behavior, mood ,thoughts, orientation, speech, perceptions, memory, concentration, judgment and insight were all abnormal drawing the conclusion that he had current mental illness.
33. I conducted the inquiry. It was extra ordinary that when questioned by the court, he would recall his parents, his siblings, the number and names and that he had one sister only, but would not recall – his wife, and his children – his response was sina familia, – sijui mtu kama huyo-
34. He could not recall the day of the week or why exactly he was in court.
35. Faith however told the court that when they came into court with Wayne, he recognized them. It can be deduced that this is the effect of his frequent interactions with his parents and siblings brothers and sisters he can recall them but has been separated from his immediate family for long. According to Wayne, three years, according to his wife, 5 years , according to his father , 8 years . In total for him it is 8 years each, total 24 years of memories not made. One can understand if he does not recall them. I doubt that it would be in the best interests of BKM to continue to deny him access to his nuclear family. It is in his best interests that they all come together and help him to make good memories and to retain them. Each of his family members should be involved to find a way to narrow that forgetfulness.
36. That said I am not in doubt that he falls within the definition given by section 2 and brings him into the purview of s. 26 of the Mental Health Act, and Order 32 of the Civil Procedure Rules.
Does he need guardian ad litem and who should that be?-
37. Under the Civil Procedure Rules – Order 32 Rule 3(2) of the Civil Procedure Rule, as read with Order 32 Rule 15 – provides for the appointment of a guardian ad litem for persons adjudged by court to be person of “unsound mind and mental infirmity, to be incapable of protecting their interests when suing or being sued.”
38. S. 26 of the Mental Health Act states: Application for administration
(1) An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—
(a)a supporter of the person with mental illness; or
(b) the representative of the person where the person with mental illness has not appointed a supporter.
(2) An application under subsection (1) shall be submitted together with an affidavit setting out—
(a)the grounds upon which the application is made;
(b)the full particulars as to the property and relatives of the person to whom it relates; and
(c)a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.
(3)A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—
(a)person in respect of whom the application is made; or
(b)where an application is made by a supporter to the representative of the person with mental illness.
(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given .
(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.
(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—
(a)court to examine the person; or
(b)person to be examined by a qualified registered mental health practitioner.
39. Section 2 of the Mental Health Act defines “supporter” to mean a person appointed under section 3I by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness; “representative” to mean –
(a)a spouse of that person, or if unable or unwilling;
(b)the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling;
(c)a parent of that person, or if unable or unwilling;
(d)a relative of that person, or if unable or unwilling; or
(e)a person under whose care or charge the person with mental illness is;
40. It is evident that the mental health Act has changed the arena by giving the person with mental illness the agency to choose the person to take care of their welfare. In my view Order 32 must be read together with s. 26 of the Mental Health Act as If the person appoints a supporter, then that is the person. In this case BMK has not appointed a supporter . According to the Act the representative is the next in line. The Act creates a hierarchy of representatives giving priority to the spouse and children and the parents coming third, the default is unable or unwilling. If the representative is able and willing then the court will assign.
41. In this case I became aware of underlying issues between the immediate family of BMK and the parents of BMK. These are issues that ought not to play in the search for the well-being of BMK because on the face of it , he requires all the parties herein for his wellbeing. For instance – how can the father and mother of BMK seek to be guardians so as to divorce the subject from his wife? At this juncture how would the court even know that that is his wish.? The underlying issues will need to be resolved. His parents cannot purport to determine for him that his marriage is irretrievable broken under the guise of protecting the interests of their son- he is still married to his wife, he is still the father to his children- despite his mental health issues.
42. Having said that it is clear from the record that BMK’s wife and son are willing to be the representative of BMK. They are ready to take up the responsibility as the immediate family and do not understand why the Applicant would want to be BMK’s guardian ad litem , yet he has his family. The mental Health Act gives the answer.
43. In this case the applicant presented three issues that he wants to do if appointed: the management of the estate/ affairs of BMK, the filing of the suit for his compensation and the filing of divorce against BMK’s spouse.
44. On the filing of the suit Order 32 rule 4 states
Who may act as next friend or be appointed guardian for the suit
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian ad litem:
45. In my considered view the Mental health Act already has given us the persons who can be appointed as guardian ad litem for purposes of filing suit: The supporter appointed by the person with mental Illness and in their absence the representative as defined by the Act. The supporter or the representative of the person with mental health illness has superior rights over any given person.
46. Considering the circumstances of this case- where BMK has been separated from his spouse and children for a long time , and where the family and his parents want the same thing for him, it is my view that any suit filed on his behalf his wife and or his son be involved. That means that they would have to cooperate and work together. Hence the, Father of BMK and the spouse and the son , or the spouse or the son to file suit jointly.
47. On the management and administration of his personal affairs the Act is specific. BMK is married to Faith. She has the statutory obligation to run manage his estate and his personal affairs. Hence Faith is appointed as such as per s. 2 as read with s. 26 of the mental health Act.
48. Regarding the issue of the filing of the divorce, the applicant will have to make a specific application to be appointed to for this purpose and to serve both BMK and the spouse
49. In the circumstance the application is partially successful in the following terms :
i. BMK is adjudged as a person with mental illness as defined by Section 26(1) of the Mental Health Act. He is not fit to sue or be sued, manage his affairs or protect his interests.
ii. Gregory Makenzi Mutia, Faith Mwanza and Wayne Makenzi Kyalo be and are hereby appointed in terms of order 32 rule 4 as read with Rule 15 of the Civil Procedure Rules and s. 26 of the Mental Health Act, as joint guardians ad litem for purposes of filing suit for compensation on behalf of BMK . Faith and Wayne have the liberty to decide if they both want to be in the suit or only one of them will be in the suit.
iii. Faith Mwanza be and is hereby appointed as the manager of the estate and affairs of BMK in accordance with s. 2 (a) as read with s. 26 of the Mental Health Act.
iv. On the issue of filing of Divorce Proceedings, the applicant is directed to make a specific application to be appointed for this purpose and which application will have to be served upon both BMK and the spouse, Faith Mwanza.
v. No orders as to costs
vi. Orders accordingly.
Dated , signed and delivered virtually this 19 th December 2025
Mumbua T. Matheka
Judge
Applicant Present in open Court
Faith & Present Virtually
Court Assistant – Chrispol
Judgment HC MISC E134 of 2024 Page 2 of 2