Introduction
1. Before me is the chamber summons application dated 15th February 2024, as amended on 4th March 2024, vide which the applicants, Hellen Njeri Maina and Samuel Macharia Maina, seek the following orders:-
(1) Spent;
(2) That Charles Maina Macharia is suffering from a mental disorder as defined in the Mental Health Act, Cap 248 of the Laws of Kenya;
(3) That this honourable Court do grant guardianship order to Hellen Njeri Maina and Samuel Macharia Maina as the wife and son, respectively of the above-named Charles Maina Macharia; and
(4) Costs of the Petition be provided.
2. The grounds upon which the application is based are listed in the body of the said summons and also in supporting affidavits of Ms Hellen Njeri Maina, sworn on 15th February 2024, and that of Samuel Macharia Maina, sworn on 4th March 2024. It is averred that Mr Charles Maina Macharia is a 68-year-old Kenyan male who had been found to suffer from severe depression, a form of mental disorder, by Dr Charlotte Mruche. Since being diagnosed, the patient had not recovered from his condition and was living under the care and protection of his wife, the 1st applicant.
3. The 1st applicant stated that the patient previously worked for Kenya Agriculture & Livestock Research Organization (KALRO) and got a depression. She is apprehensive that the patient cannot manage his benefits and shares with KALRO. She, therefore, sought to be appointed as a manager over his estate to ensure that any disposal of benefits or property belonging to the said person is done, having regard to his rights, titles, and interests in the properties and shares. She, therefore, sought a declaration that the patient suffers from a mental disorder and for her appointment, together with her son, as joint guardians/managers. She deposed that she would faithfully administer his estate according to law and render a true account of the estate whenever required to do so by law.
4. The applicant attached to her application the affidavit of Samuel Macharia Maina, one of the patient's two children, who is also a co-applicant, Dr. Charlotte Mruche's medical report, and some correspondence from KALRO.
5. Samuel Macharia Maina averred that he is the patient's son in his affidavit. He stated that his father’s mental faculties were currently impaired and that he needed to be protected. Mr Maina deposed that his father retired from KALRO on age grounds upon reaching 65 years of age but that he had declined to sign for his benefits due to this condition. He urged that as his father was incapable of speaking coherently, reading or writing, it was necessary that a legal guardian be appointed over his estate to “ensure that any disposal of any property is done having regard to the rights and interests.”
6. The Chamber Summons was amended on 4th March 2024. The amendment added Samuel Macharia Maina as a co-applicant. It provided a copy of a medical report prepared by Dr. Ilham of Port Reitz Hospital Mombasa, in which it was indicated that the patient suffers from depression and is under medication.
7. A further medical report dated 17th April 2024 prepared by Dr. Alfred Gitonga was filed and produced during the hearing. The finding in the latter report was that the patient suffers from early dementia.
The Evidence Adduced in Court
8. The matter was heard on 29th May and 8th July 2024. A total of 3 witnesses testified. I will give a precis of their testimony below
9. The first witness was Hellen Njeri Maina. She testified on oath that she resides in Ruiru and is a retired teacher. She stated that the patient was her husband, that they got married under Gikuyu customary law, and that their union was blessed with two children, one of whom has mental health challenges. She testified that since his retirement, the patient’s condition had worsened. Thus, she prayed to be appointed as his guardian/manager.
10. The second witness was D. Alfred Gitonga, a consultant psychiatrist teaching and practising Psychiatry at Mathari National Teaching and Referral Hospital. He testified that the patient had cognitive decline due to dementia, which condition was in its early stages and that it was superimposed with depressive conditions. The doctor recommended that the patient be put on management as his condition was bound to worsen.
11. The 2nd Applicant was the third witness. He testified that his father was physically healthy but that he was depressed. He stated that his father refused to sign for his pension because he had not retired, which is patently false. When asked by the Court why they fled the cause in Mombasa, Mr Maina stated that at the time of filing, they were in Mombasa, and hence, it was easy to file the matter in Mombasa. He averred that his father had only one wife and that unless the orders sought were issued, his father’s estate would be wasted as his assets would be taken to the unclaimed Financial Assets Authority.
Observations Made by Court During Trial
12. The Court had the opportunity to observe the patient. Although he no longer works for KALRO, having been retired on age grounds, he was insistent that he still works there and had not retired. He claimed that the retirement age at KALRO is 75 years. At the time I interviewed him, he was shirtless. In my view, the patient appeared to be mentally unsound. He was deluded about his condition.
The Applicable Law
13. 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 property of the Patient. 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 who is suffering from mental illness.”
14. 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. Hellen Njeri Maina and Samuel Maina Macharia are not “supporters” of the patient as they weren’t appointed in writing. It is my finding that being the patient's wife and son, respectively, they are his “representatives” within the meaning of the Act and, therefore, have the locus to file the instant petition.
Analysis of the Facts and the Law
15. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated:-
“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.”
16. 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 that of children. Therefore, the court must ensure that the application was filed in the patient's interest. In addition, the court's orders must aim to achieve the said goal.
17. Charles Maina Macharia is said to have retirement benefits with KALRO, which he has not collected due to his condition. He lives in denial that his former employer retired him on age grounds. The applicants want to access the said benefits so that they can care for the Patient and that the benefits aren’t wasted.
18. I observed the Patient in court. He was deluded. I am persuaded that he suffers from a mental illness.
19. I have read the three reports by Dr Mruche, Dr Ilham of Port Reitz Sub Country Hospital and Dr Alfred Gitonga of Mathari National Teaching and Referral Hospital. I am satisfied that Charles Maina Macharia has mental illnesses. From the joint applicants' testimony and the medical professionals' reports, the patient cannot manage his affairs. It will, therefore, be in his best interest that managers/guardians-ad-litem are appointed to manage his estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible and that his estate is not wasted.
Determination
20. I am satisfied based on the evidence adduced that the patient has depression, which ailment is a mental health disorder. There is, therefore, a case for the appointment of the applicants as the managers/guardians ad litem of the patient Charles Maina Macharia. In the circumstances, I order as follows:-
1. The Applicants, Hellen Njeri Maina and Samuel Macharia Maina, are hereby appointed as the managers/guardians ad litem of the patient Charles Maina Macharia;
2. The managers/guardians ad litem shall manage the patient's estate, particularly his interest in retirement benefits at KALRO, in the patient's best interest. They shall, however, not have the power to sell charge, or otherwise alienate his immovable property without leave of the Court;
3. Pursuant to section 27 (4) of the Mental Health Ct, the appointment of the managers/guardians ad litem shall be published in the Kenya Gazette by the Court;
4. The managers/guardians ad litem shall file the inventory/statement of account of the estate of the patient within six months of the date of their appointment; and
5. No orders as to costs.
21. Orders accordingly.
DATED and SIGNED at Mombasa this 29th day of July 2024. Delivered virtually via Microsoft TEAMS.
1. Before me is the chamber summons application dated 15th February 2024, as amended on 4th March 2024, vide which the applicants, Hellen Njeri Maina and Samuel Macharia Maina, seek the following orders:-
(1) Spent;
(2) That Charles Maina Macharia is suffering from a mental disorder as defined in the Mental Health Act, Cap 248 of the Laws of Kenya;
(3) That this honourable Court do grant guardianship order to Hellen Njeri Maina and Samuel Macharia Maina as the wife and son, respectively of the above-named Charles Maina Macharia; and
(4) Costs of the Petition be provided.
2. The grounds upon which the application is based are listed in the body of the said summons and also in supporting affidavits of Ms Hellen Njeri Maina, sworn on 15th February 2024, and that of Samuel Macharia Maina, sworn on 4th March 2024. It is averred that Mr Charles Maina Macharia is a 68-year-old Kenyan male who had been found to suffer from severe depression, a form of mental disorder, by Dr Charlotte Mruche. Since being diagnosed, the patient had not recovered from his condition and was living under the care and protection of his wife, the 1st applicant.
3. The 1st applicant stated that the patient previously worked for Kenya Agriculture & Livestock Research Organization (KALRO) and got a depression. She is apprehensive that the patient cannot manage his benefits and shares with KALRO. She, therefore, sought to be appointed as a manager over his estate to ensure that any disposal of benefits or property belonging to the said person is done, having regard to his rights, titles, and interests in the properties and shares. She, therefore, sought a declaration that the patient suffers from a mental disorder and for her appointment, together with her son, as joint guardians/managers. She deposed that she would faithfully administer his estate according to law and render a true account of the estate whenever required to do so by law.
4. The applicant attached to her application the affidavit of Samuel Macharia Maina, one of the patient's two children, who is also a co-applicant, Dr. Charlotte Mruche's medical report, and some correspondence from KALRO.
5. Samuel Macharia Maina averred that he is the patient's son in his affidavit. He stated that his father’s mental faculties were currently impaired and that he needed to be protected. Mr Maina deposed that his father retired from KALRO on age grounds upon reaching 65 years of age but that he had declined to sign for his benefits due to this condition. He urged that as his father was incapable of speaking coherently, reading or writing, it was necessary that a legal guardian be appointed over his estate to “ensure that any disposal of any property is done having regard to the rights and interests.”
6. The Chamber Summons was amended on 4th March 2024. The amendment added Samuel Macharia Maina as a co-applicant. It provided a copy of a medical report prepared by Dr. Ilham of Port Reitz Hospital Mombasa, in which it was indicated that the patient suffers from depression and is under medication.
7. A further medical report dated 17th April 2024 prepared by Dr. Alfred Gitonga was filed and produced during the hearing. The finding in the latter report was that the patient suffers from early dementia.
The Evidence Adduced in Court
8. The matter was heard on 29th May and 8th July 2024. A total of 3 witnesses testified. I will give a precis of their testimony below
9. The first witness was Hellen Njeri Maina. She testified on oath that she resides in Ruiru and is a retired teacher. She stated that the patient was her husband, that they got married under Gikuyu customary law, and that their union was blessed with two children, one of whom has mental health challenges. She testified that since his retirement, the patient’s condition had worsened. Thus, she prayed to be appointed as his guardian/manager.
10. The second witness was D. Alfred Gitonga, a consultant psychiatrist teaching and practising Psychiatry at Mathari National Teaching and Referral Hospital. He testified that the patient had cognitive decline due to dementia, which condition was in its early stages and that it was superimposed with depressive conditions. The doctor recommended that the patient be put on management as his condition was bound to worsen.
11. The 2nd Applicant was the third witness. He testified that his father was physically healthy but that he was depressed. He stated that his father refused to sign for his pension because he had not retired, which is patently false. When asked by the Court why they fled the cause in Mombasa, Mr Maina stated that at the time of filing, they were in Mombasa, and hence, it was easy to file the matter in Mombasa. He averred that his father had only one wife and that unless the orders sought were issued, his father’s estate would be wasted as his assets would be taken to the unclaimed Financial Assets Authority.
Observations Made by Court During Trial
12. The Court had the opportunity to observe the patient. Although he no longer works for KALRO, having been retired on age grounds, he was insistent that he still works there and had not retired. He claimed that the retirement age at KALRO is 75 years. At the time I interviewed him, he was shirtless. In my view, the patient appeared to be mentally unsound. He was deluded about his condition.
The Applicable Law
13. 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 property of the Patient. 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 who is suffering from mental illness.”
14. 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. Hellen Njeri Maina and Samuel Maina Macharia are not “supporters” of the patient as they weren’t appointed in writing. It is my finding that being the patient's wife and son, respectively, they are his “representatives” within the meaning of the Act and, therefore, have the locus to file the instant petition.
Analysis of the Facts and the Law
15. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated:-
“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.”
16. 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 that of children. Therefore, the court must ensure that the application was filed in the patient's interest. In addition, the court's orders must aim to achieve the said goal.
17. Charles Maina Macharia is said to have retirement benefits with KALRO, which he has not collected due to his condition. He lives in denial that his former employer retired him on age grounds. The applicants want to access the said benefits so that they can care for the Patient and that the benefits aren’t wasted.
18. I observed the Patient in court. He was deluded. I am persuaded that he suffers from a mental illness.
19. I have read the three reports by Dr Mruche, Dr Ilham of Port Reitz Sub Country Hospital and Dr Alfred Gitonga of Mathari National Teaching and Referral Hospital. I am satisfied that Charles Maina Macharia has mental illnesses. From the joint applicants' testimony and the medical professionals' reports, the patient cannot manage his affairs. It will, therefore, be in his best interest that managers/guardians-ad-litem are appointed to manage his estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible and that his estate is not wasted.
Determination
20. I am satisfied based on the evidence adduced that the patient has depression, which ailment is a mental health disorder. There is, therefore, a case for the appointment of the applicants as the managers/guardians ad litem of the patient Charles Maina Macharia. In the circumstances, I order as follows:-
1. The Applicants, Hellen Njeri Maina and Samuel Macharia Maina, are hereby appointed as the managers/guardians ad litem of the patient Charles Maina Macharia;
2. The managers/guardians ad litem shall manage the patient's estate, particularly his interest in retirement benefits at KALRO, in the patient's best interest. They shall, however, not have the power to sell charge, or otherwise alienate his immovable property without leave of the Court;
3. Pursuant to section 27 (4) of the Mental Health Ct, the appointment of the managers/guardians ad litem shall be published in the Kenya Gazette by the Court;
4. The managers/guardians ad litem shall file the inventory/statement of account of the estate of the patient within six months of the date of their appointment; and
5. No orders as to costs.
21. Orders accordingly.
DATED and SIGNED at Mombasa this 29th day of July 2024. Delivered virtually via Microsoft TEAMS.