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JudgmentHAFSA FATUMA VS FATUMA SWALEH3 min read

HAFSA FATUMA VS FATUMA SWALEH

High Court at Milimani High Court · · C. Kendagor


  1. On the 8th of July 2024, the applicant submitted a petition under section 26 of the Mental Health Act, requesting the appointment of a guardian for FS. This request is based on the assertion that FS is deemed incapable of safeguarding her own interests due to mental infirmity.
  2. The matter proceeded for hearing on the virtual platform via viva voce evidence. The applicant testified that she is the only child of the subject. She told the court that she has been residing with the subject and has been her close confidant and advisor over time. The applicant further stated that she took the subject for a medical check-up when she realized that the subject had problems remembering small details of her day-to-day affairs. Upon assessment, the subject was found to have impaired memory and was diagnosed as suffering from dementia.
  3. The Petitioner produced a Medical Report from Embu Level 5 Hospital dated 24th June, 2024. The psychiatric examination report recommended the following;

“She has features of senile dementia. The patient is currently showing deficits in her memory, challenges with managing her finances and impairedness in decision making. Senile dementia is a neuro-degenerative condition which causes progressive deterioration of memory and other executive brain functions. Due to the associated challenges with decision making and ability to manage finances and other resources, it would be prudent to appoint an administrator appointed to manage the patient’s estate.”

Determination

4. The provisions of the Mental Health Act ensure that individuals suffering from mental illness are well cared for, and their estates are properly handled. Section 26 provides 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.

5. A birth certificate was produced as proof that the Petitioner is the subject’s daughter. The subject was introduced to the court via the online platform during the court proceedings.  The court noted her disorientation and minimal speech, painting a compelling picture of her state.

6. The medical report submitted shows that the subject is not in a proper mental position to take care of her affairs and her welfare. It is in the subject\'s best interest that the Petitioner be appointed as her legal guardian and manager of her estate, provide adequate care to the subject, and ensure her well-being.

7. In light of the circumstances, the Court is convinced of the subject\'s condition and situation and, therefore orders as follows;

  1. FS is hereby declared as suffering from a mental disorder under Section 26 of the Mental Health Act (Cap 248).
  2. The petitioner HF is hereby appointed as Guardian for the subject and Manager of her Estate.
  3. As Manager of the Estate of FS, the Petitioner shall not dispose of the property without the court\'s sanction. 
  4. The Petitioner is required to submit a comprehensive inventory of the Subject’s assets and a financial statement detailing the funds received and disbursed on behalf of the Subject\'s estate to this court within 6 months from the date of this ruling.
  5. Costs to be met out of the Estate of the Subject.

Delivered on 27th September, 2024

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