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JudgmentJAMES KAHINDI ZIRO VS JOHN SARROH DZUMBE5 min read

JAMES KAHINDI ZIRO VS JOHN SARROH DZUMBE

High Court at Malindi High Court · · M Thande


  1. By a Petition dated 28.11.24 the Petitioner, John Sarroh Dzumbe seeks to be appointed manager and guardian of Kahindi Ziro James (the subject) to take over the entire management of his estate so as to apply the proceeds thereof to his care and medication.   The Petitioner is a son of the subject.
  2. In his supporting affidavit, the Petitioner deponed that the subject, aged 70 years was prior to his illness, working as Bishop, Malindi Cathedral Central North Coast. The subject was also a businessman and retired Chief principal, Shanzu Teachers Training College. The Petitioner stated that the subject exhibits marked intellectual decline, severe physical deterioration and is now totally dependent on his family for all his needs. Additionally, that the subject is currently bed-ridden and under continuous medication and is therefore in need of finances to cater for his basic and medical needs.
  3. In a medical report dated 25.11.24, Dr. Mbote C. Gichango, a physician at Kilifi County Hospital indicated that the subject was admitted at the facility on 6.11.24. He is receiving treatment for a severe medical condition with a concurrent surgical complication. He is currently not ambulant, is unconscious, unresponsive and cannot attend normal duties. His condition has a guarded prognosis with a prolonged recovery period and requires that a legal guardian or next of kin manage his socioeconomic affairs.
  4. The Petitioner further stated that the subject holds bank accounts numbers 1060185830288 and 0460292564432 in Equity Bank, Kilifi branch, but that due to his present condition, he is unable to operate the same. The Petitioner thus seeks to be appointed legal guardian to the subject and undertakes to faithfully administer all the estate of the subject and to render any reports and a true account of his estate.
  5. The Court has considered the Petition, the supporting affidavit, the exhibited medical report, as well as counsel’s submissions. At the hearing, the Court heard the account of the Petitioner, his wife Mary Kai Goe and other son Jonathan Goe Kai, on the subject’s condition. The Court was also able to observe the subject and noted that he was in a hospital bed unconscious and completely unresponsive.  
  6. From the material before the Court and the Court’s own observation, it is evident that the subject’s condition has rendered him incapable of managing his own affairs.
  7. The Mental Health Act empowers the Court to make orders relating to a person suffering from mental disorder. Section 2 of the Mental Health Act defines a person suffering from mental disorder as follows:

person suffering from mental disorder” means a person who has been found to be so suffering under this Act and includes a person diagnozed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol of substance abuse;

  1. Section 26 of the Act requires the Court to make inquiry prior to making orders relating to a person suffering from mental disorder as follows:  
      1. The court may make orders—
        1. for the management of the estate of any person suffering from mental disorder; and
        2. 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.
  2. The Court has made inquiry and makes a finding that subject is a person suffering from mental disorder and incapable of managing his own affairs. It is therefore necessary to make orders for the guardianship of the subject and for the management of his estate.
  3. Under the Act, the Court may also direct that the property of a person suffering from mental disorder be applied for such person’s maintenance or his family. The Petitioner stated that the subject is unable to operate his bank accounts held in Equity Bank. Further that he has been looking after him and seeks to access funds to cater for his food, shelter and health care. 
  4. Section 29(1) of the Act provides:

Where it appears to the court that, having regard to the circumstances of a person who is suffering from mental disorder and of his family and any other relative circumstance, it is expedient that his property should be made available for his or their maintenance it may, instead of appointing a manager or, notwithstanding such appointment, order that the property or the proceeds thereof when realized be paid to such person as the court may think fit, to be applied for such maintenance.

  1. Having considered the foregoing, my finding is that it is expedient that the funds in the subject’s bank accounts be made available to the Petitioner for the subject’s medical care and maintenance.
  2. Mary Kai Goe and Jonathan Goe Kai, the subject’s wife and son respectively, have both agreed that the Petitioner be appointed guardian of the subject and manager of his estate. Their consent dated 28.11.24 is on record. Both were present at the hearing and affirmed their consent. In light of the foregoing, I am satisfied that the Petitioner is a fit and proper person to be appointed guardian over the subject and manager of his estate.
  3. In view of the Court’s finding that the subject is a person suffering from mental disorder, it is necessary to make orders for his guardianship and for the management of his estate. Accordingly, it is hereby ordered as follows:
  4. John Sarroh Dzumbe is hereby appointed as guardian of Kahindi Ziro James and manager of his estate for the purpose of making proper provision for his medical needs and maintenance.
  5. John Sarroh Dzumbe is hereby granted authority to operate 106 0185830288 and 0460292564432 in Equity Bank, Kilifi branch and to manage all other properties belonging to Kahindi Ziro James for the purpose stated in i) above.
  6. John Sarroh Dzumbe shall file accounts within the next 90 days and in default, the appointment made herein shall lapse.
  7. Mention for compliance on 3.3.25.
  8. There shall be no order as to costs.    

DATED SIGNED and DELIVERED in MALINDI this 5th day of December 2024

 

    JAMES KAHINDI ZIRO VS JOHN SARROH DZUMBE JAMES KAHINDI ZIRO VS JOHN SARROH DZUMBE