HELLEN KEMUNTO MUSA VS PAOSTINAI MAGOMA ORORI

The Applicant/ petitioner   Hellen Kemunto Musa herein  namely Mary Keuya moved  the court vide a Petition  dated 2.5.24 and application dated  an even date  under Section 26 , 27 and 28 (1)   of the Mental Health Act CAP 248 for the following orders:

1. That the subject be and is hereby adjudged to be suffering from mental disorder as defined in the mental health Act cap 248 laws of Kenya  .
2. That the subject be and is hereby  adjudged to be a person with disability .
3. appointed guardian ad litem for Paostani Magoma Orori  the subject herein.
4. That Hellen Kemunto Musa be granted management orders and authourised to undertake all legal functions with regards to financial affairs and welfare of the subject’s maintenance .
5. That this Honourable court be pleased to grant any order that it may deem fit.

The application is based on the annexed affidavit of Hellen Kemunto Musa  .  She told this court that she is a daughter to the subject who is 80  years old suffering from severe  dementia which have impaired her judgment and thus she is unable to manage her own affairs due to the said disease . She annexed a medical report by Mr Rodgers Omuya a clinical Psychiatrist at the Kisii county referral hospital. ‘’HKM 2’’. She also filed a consent dated 9.5.24 indicating that all her siblings save Jane Orori and their father signed the consent to her being appointed guardian ad litem for their said mother. She said their father is aged about 91 and is thus old and also senile. He deponed that she has been staying with the mother and taking care of her single handedly and hence she is suitable to be appointed the guardian ad litem . also that it is in the interest of justice that the application be allowed

Jane Orori and he father Orori Misiani filed grounds of opposition dated 20.6.24 . thy listed grounds that ;

1. The application is non- starter and incompetent.
2. The application is  fatally defective as it contravenes the provisions of Section 28 (1) of the Mental Health Act.
3. The application is misconceived and an abuse of the process of the court and ought to be dismissed Ex Debito Justiae.

The applicant submitted that she has established that the  subject has mental the application disability and that she has been staying with her and hence he is seeking the orders . Further that the respondents did not explain why  they were objecting to the grant of the said orders . Also that the defect complained of by the respodents is curable under Article 159 of the Constitution of Kenya .

The respondents submitted that the application offends the provisions of Section 28 (1)  of Mental Health Act as it has been brought by way of  a Miscellaneous application instead of a petition and thus the application is fatally defective , frivolous vexatious and an abuse of the process of the court. Also that order 2 rule 15  of the civil procedure rules provides for  striking out of pleadings which are  frivolous vexacious and abuse of the procees of the court.

ANALYSIS AND DETERMINATION

. I have carefully  considered the petition the supporting affidavit of the petitioner  and all the annexures attached to it and the grounds of opposition . The issues  for determination are:

1. Whether the application is fatally defective ,
2. Whether  the application is merited and grant guardianship orders of the subject to the applicant herein.

 Section 2 of the Mental Health Act Cap 248 provides that:

“A person suffering from mental disorder” means a person who is suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”

Section 26 of the Mental Health Act  empowers the court  to grant custody, management and guardianship orders The said section provides ;

“(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

c) 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.

d) Where upon inquiries 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 just 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.” 

Section 27  provides for powers of a managers of the  estate of a patient while  Section 28 of the same Act provides for management of the subject's estate.

I have  perused the petition  and the affidavit of the applicant ,the grounds of opposition and the able submissions by both counsel and the medical report . It is not disputed that the subject is suffering from acute dementia disease which has affected her judgment and thus she is unable to manage . She thus has mental incapacity under section 2 of the Mental Health Act .

On whether the application is fatally defective , Section 28 of the mental health Act provides that the court shall be moved by way of a petition .  I have perused Section 28 of the Mental Health Act and I note that it does not provide for the form of filing the application for estate management . Section 26 of the said Act provides that an applicant may move the court by way of an application. The ground is thus without merit and I dismiss it. The applicant herein filed both  a petition and an application superfluous but not fatally defective. The defect is curable under Article 159 of the constitution. I proceed to strike out the application and that leave us with the petition dated 2.5.24.

On whether Applicant should be appointed as guardian/ manager to the patient’s estate . She says she is  a daughter  to the subject and that she has been staying with the subject while taking care of her  and that she has the consent of all her siblings save for Jane Orori  to be appointed her guardian ad litem . The husband to the subject Mr  Orori Misiani appeared in Court on  10.6.24 and told the court that the subject is his wife and she is sickly . He said he objected to the applicant taking care of his wife and that he wanted her back home. Though he did not file a replying affidavit , it  is not disputed that he is the husband to the subject and his wishes are on record . The applicant said their father  is senile but I noted that his wishes are very clear; he objected to the application and said he wanted  his wife back at home . No application has been made for  guardianship of the said Mr Orori whom I  note is a senior citizen aged 91 and there is no indication that the applicant will also take him together with the subject  . This court takes judicial notice of a bad emerging  trend in Kenya whereby children totally neglect their aged fathers at home while they move their mothers to their homes and  give them  privileged care and attention . Spouses have a right and a corresponding duty to be there for  each other in sickness and  health .  I agree with Mr Orori that his wife  be taken back home to be in his company.   This is because it is  my considered view that separating the subject from her husband is not in the interest of their marriage and that her husband may also be affected psychologically as he will be left lonely .

The subject also has several children and it is my view that the estate should be administered by atleast two people.

In the upshot , I proceed to allow the petition on the following terms :

1. The subject be and is hereby adjudged to be suffering from mental disorder as defined in the mental health Act cap 248 laws of Kenya  .
2. The subject be and is hereby  adjudged to be a person with disability .
3. appointed guardian ad litem for Paostani Magoma Orori  the subject herein.
4. Hellen Kemunto Musa and Jane Orori are hereby jointly appointed guardians ad litem of  Paostani Magoma Orori  the subject herein.
5. Hellen Kemunto Musa and Jane Orori are hereby jointly  granted management orders and authourised to undertake all legal functions with regards to financial affairs and welfare of the subject’s maintenance .
6. Any proceeds from her estate be held in trust for her and be utilized in her best interest . 
7. The subject to be taken back to her matrimonial home where her husband is .
8. This being a family matter ,each party to bear his own costs .
9. The  file is closed .