HIGH COURT FAMILY MISCELLANEOUS CASE NO. E012 OF 2025
HUMPHREY RITHO GICHOHI…………………………….APPLICANT
VERSUS
IRENE WANGUI RITHO……………………………………….SUBJECT
JUDGEMENT
1. Before this Court is the Chamber Summons dated 22 nd May 2025 by which the Petitioner HUMPHREY RITHO GICHOHI seeks the following orders:-
“1. SPENT.
2. THAT the Honourable Court be pleased to declare that the Subject, IRENE WANGUI RITHO, as a person suffering from a mental disorder and/or has become mentally and physically incapacitated within the meaning of Sections 26 and 28 of the Mental Health Act 248, Laws of Kenya.
3. THAT the Honourable Court be pleased to appoint the Applicant, HUMPHREY RITHO GICHOHI, being a Husband of the Subject, as the Guardian and Manager of the affairs estate, and person of the Subject.
4. THAT that the Applicant be granted authority to manage all the affairs of the Subject, including but not limited to making decisions concerning his medical care and receiving, holding, and generally managing her personal, legal and financial matters in the best interests of the Subject.
5. THAT this court be pleased to grant any other relief as it may please in the interest of justice.
6. THAT That the costs of this application be in the cause.”
2. The application which was premised upon Section 26(1) of the Mental Health Act, Cap 248, Laws of Kenya was supported by the Affidavit of even date sworn by the Applicant.
3. The Applicant is the husband of the subject IRENE WANGUI RITHO . He states that the Subject fell ill in the year 2015 and that since then she has been in and out of hospital. That the subject is currently bed-ridden and requires round the clock care. The Applicant has had to hire a caretaker to assist him care for the subject.
4. The Applicant states that due to her incapacity the Subject even had to retire early from her teaching job. He states that the subject is unable to manage her own affairs. As such the Applicant prays to be appointed as guardian over his wife.
ANALYSIS AND DETERMINATION
5. Section 26 of the Mental Health Act, Cap 248 provides for the circumstances in which a court may make orders for the management and maintenance of patient (subject) as follows:-
“Order for custody, management and guardianship.
(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) Where upon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent 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 . [Own emphasis]
6. In order to warrant the appointment of a legal guardian it must be demonstrated that the subject suffers from a mental disorder rendering her incapable of managing her own affairs.
7. I have perused the chief’s letter dated 28 th April 2025 which is annexed to the Summons. The chief of Chinga North East Location by this letter confirmed firstly that the Applicant is the husband of the subject. The chief also confirmed that the subject has been ailing since the year 2017 . That she is on medication and is not able to walk.
8. The couples three (3) children EDWIN KINYUA RITHO , BETTY WANJIKU and SAMMY RITHO all testified in this matter. They all confirmed that the subject who is their mother has been ailing for several years. They confirmed that the subject is not able to take care of herself and a caretaker has been hired to assist her with activities of daily living. The three (3) children all confirm that they are aware of this application and none has any objection to the grant of guardianship to the Applicant who is their father.
9. I have perused the medical report dated 18 th July 2015 issued
in respect of the subject from Kiriaini Mission Hospital . The report indicates that the subject underwent head surgery and that as a result she cannot express herself well, and is limited in carrying out her day to day activities.
10. I have also perused the Psychiatric Report dated 5 th December 2025 prepared by Dr. S. Musau of Outspan Hospital in Nyeri. The subject was found to have poor memory, confusion and required assistance in activities of daily living. She had slurred speech and was disoriented with poor attention and concentration. The psychiatrist concluded that the subject suffers from “ Major Neurocognitive disorder secondary to or worsened by a brain bleed .” The doctor stated that the subject was not able to manage her own affairs.
11. I did have a brief interaction with the subject on the virtual platform. She was a frail elderly lady sitting on a sofa. The subject was only able to express herself with difficulty. It is clear that the subject is suffering from a mental disorder.
12. In RE: N. M. K. [2007] , the Court in considering what factors
ought to be borne in mind when making a Guardianship order stated as follows:-
“In considering an application brought under section 26 and 27 of the Mental Health Act the court guided by three main factors.
(a) There must be medical evidence warranting the
determination by the court that the subject suffers a mental disorder.
(b) The person to be appointed to be either a Guardian
or Manager must be fit to be so appointed.
(c) The court must be satisfied that the proposed
manager will utilize her powers for the benefit and welfare of the subject.
The overriding principles in applying all these factors is that the welfare and best interest of the subject must be overall guiding principle . [Own emphasis]
13. Finally I find that this application is merited. The same is allowed and this court makes the following orders.
(1) The subject IRENE WANGUI RITHO is declared to be a person suffering from a mental disorder within the terms of the Mental Health Act, Cap 248, Laws of Kenya.
(2) The Applicant HUMPHREY RITHO GICHOHI is hereby appointed as legal Guardian for the subject Irene Wangui Ritho and Manager of her estate.
(3) No orders on costs.
Dated in Nyeri this 19 th day of March 2026
HIGH COURT FAMILY MISCELLANEOUS CASE NO. E012/2025 JUDGEMENT Page 1 of 8
HUMPHREY RITHO GICHOHI…………………………….APPLICANT
VERSUS
IRENE WANGUI RITHO……………………………………….SUBJECT
JUDGEMENT
1. Before this Court is the Chamber Summons dated 22 nd May 2025 by which the Petitioner HUMPHREY RITHO GICHOHI seeks the following orders:-
“1. SPENT.
2. THAT the Honourable Court be pleased to declare that the Subject, IRENE WANGUI RITHO, as a person suffering from a mental disorder and/or has become mentally and physically incapacitated within the meaning of Sections 26 and 28 of the Mental Health Act 248, Laws of Kenya.
3. THAT the Honourable Court be pleased to appoint the Applicant, HUMPHREY RITHO GICHOHI, being a Husband of the Subject, as the Guardian and Manager of the affairs estate, and person of the Subject.
4. THAT that the Applicant be granted authority to manage all the affairs of the Subject, including but not limited to making decisions concerning his medical care and receiving, holding, and generally managing her personal, legal and financial matters in the best interests of the Subject.
5. THAT this court be pleased to grant any other relief as it may please in the interest of justice.
6. THAT That the costs of this application be in the cause.”
2. The application which was premised upon Section 26(1) of the Mental Health Act, Cap 248, Laws of Kenya was supported by the Affidavit of even date sworn by the Applicant.
3. The Applicant is the husband of the subject IRENE WANGUI RITHO . He states that the Subject fell ill in the year 2015 and that since then she has been in and out of hospital. That the subject is currently bed-ridden and requires round the clock care. The Applicant has had to hire a caretaker to assist him care for the subject.
4. The Applicant states that due to her incapacity the Subject even had to retire early from her teaching job. He states that the subject is unable to manage her own affairs. As such the Applicant prays to be appointed as guardian over his wife.
ANALYSIS AND DETERMINATION
5. Section 26 of the Mental Health Act, Cap 248 provides for the circumstances in which a court may make orders for the management and maintenance of patient (subject) as follows:-
“Order for custody, management and guardianship.
(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) Where upon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent 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 . [Own emphasis]
6. In order to warrant the appointment of a legal guardian it must be demonstrated that the subject suffers from a mental disorder rendering her incapable of managing her own affairs.
7. I have perused the chief’s letter dated 28 th April 2025 which is annexed to the Summons. The chief of Chinga North East Location by this letter confirmed firstly that the Applicant is the husband of the subject. The chief also confirmed that the subject has been ailing since the year 2017 . That she is on medication and is not able to walk.
8. The couples three (3) children EDWIN KINYUA RITHO , BETTY WANJIKU and SAMMY RITHO all testified in this matter. They all confirmed that the subject who is their mother has been ailing for several years. They confirmed that the subject is not able to take care of herself and a caretaker has been hired to assist her with activities of daily living. The three (3) children all confirm that they are aware of this application and none has any objection to the grant of guardianship to the Applicant who is their father.
9. I have perused the medical report dated 18 th July 2015 issued
in respect of the subject from Kiriaini Mission Hospital . The report indicates that the subject underwent head surgery and that as a result she cannot express herself well, and is limited in carrying out her day to day activities.
10. I have also perused the Psychiatric Report dated 5 th December 2025 prepared by Dr. S. Musau of Outspan Hospital in Nyeri. The subject was found to have poor memory, confusion and required assistance in activities of daily living. She had slurred speech and was disoriented with poor attention and concentration. The psychiatrist concluded that the subject suffers from “ Major Neurocognitive disorder secondary to or worsened by a brain bleed .” The doctor stated that the subject was not able to manage her own affairs.
11. I did have a brief interaction with the subject on the virtual platform. She was a frail elderly lady sitting on a sofa. The subject was only able to express herself with difficulty. It is clear that the subject is suffering from a mental disorder.
12. In RE: N. M. K. [2007] , the Court in considering what factors
ought to be borne in mind when making a Guardianship order stated as follows:-
“In considering an application brought under section 26 and 27 of the Mental Health Act the court guided by three main factors.
(a) There must be medical evidence warranting the
determination by the court that the subject suffers a mental disorder.
(b) The person to be appointed to be either a Guardian
or Manager must be fit to be so appointed.
(c) The court must be satisfied that the proposed
manager will utilize her powers for the benefit and welfare of the subject.
The overriding principles in applying all these factors is that the welfare and best interest of the subject must be overall guiding principle . [Own emphasis]
13. Finally I find that this application is merited. The same is allowed and this court makes the following orders.
(1) The subject IRENE WANGUI RITHO is declared to be a person suffering from a mental disorder within the terms of the Mental Health Act, Cap 248, Laws of Kenya.
(2) The Applicant HUMPHREY RITHO GICHOHI is hereby appointed as legal Guardian for the subject Irene Wangui Ritho and Manager of her estate.
(3) No orders on costs.
Dated in Nyeri this 19 th day of March 2026
HIGH COURT FAMILY MISCELLANEOUS CASE NO. E012/2025 JUDGEMENT Page 1 of 8