1. By a Summons in Chambers dated 10/8/2026, the applicants invoked sections 26 of the Mental Health Act, Cap 248 Laws of Kenya and sought a declaration that Mark I. Owondo Okere aka Mark Owondo Okere (“the subject”) a person suffering from acute pneumonia that had affected his neurological status was therefore person suffering from a mental disorder, that they be made his legal guardian and that they be appointed to manage all his affairs.
2. The Summons was anchored on the grounds set out in its body as well as the supporting affidavit of JOSEPH OKELLO OKERE and ANNETTE ACHIENG OKERE sworn on the 10/8/2026.
3. The matter proceeded by way of viva voce evidence in which the Annette Achieng Okere told the Court that the applicants were the biological Son and Daughter, respectively of the subject. That the subject was 77 years old who was critically ill and in hospital with had mental incapacity in terms of the Medical Report dated 4/8/2026.
4. The said Medical Report from the Nightingale Medical Centre, Kisumu revealed that the subject had been ill for some time and was currently in a critical condition in that facility. That due to acute pneumonia, his neurological status had been affected and a depressed consciousness and unable to perform any transaction.
5. That due to the subject’s condition, he was not able to take care of his matters including making bank transactions to pay for his medical bills. That he was in a critical condition requiring continued medical attention. That it was therefore imperative to grant the orders sought for the subject to be able to be protected.
6. The applicants also relied on the documents exhibited in their affidavit. These included birth certificates of their siblings and a Consent and Authority signed by all their siblings dated 10/8/2026. In the said consent, all the siblings supported the applicants’ application,
7. The main issues for determination are Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248 and Whether the applicant should be appointed as guardian to the subject.
8. The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons.
9. Section 2 of the Act defines “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 diagnosed as psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse.”
10. Section 26 provides 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 of the 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 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.”
11. According to the medical report referred to above, it is clear that the subject cannot comprehend his situation place and time. From the said report, it is apparent that the subject is suffering from a mental disorder in terms of section 2 of the Mental Act and further a medical condition contemplated under section 26 of the Act and is thus incapable of managing his own affairs.
12. Section 26 of the Mental Health Act gives the Court the power to make orders regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable but giving preference to a relative.
13. From the evidence on record, the course of the application is well supported as required under the law. It is therefore my considered view that the prayer for appointment of guardian is well grounded and merited.
14. Consequently, the Summons dated 10/8/2026 is allowed in the following terms: -
a) That the subject Mark I. Owondo Okere aka Mark Owondo Okere is hereby declared mentally incapacitated under Section 26 of the Mental Health Act.
b) That the applicants, Joseph Okello Okere and Annette Achieng Okere are hereby appointed the guardians of the subject to manage the subject’s affairs including the operation of his bank account No. 1107955092 at KCB or any other accounts in any other banks or institutions.
It is hereby so ordered.
2. The Summons was anchored on the grounds set out in its body as well as the supporting affidavit of JOSEPH OKELLO OKERE and ANNETTE ACHIENG OKERE sworn on the 10/8/2026.
3. The matter proceeded by way of viva voce evidence in which the Annette Achieng Okere told the Court that the applicants were the biological Son and Daughter, respectively of the subject. That the subject was 77 years old who was critically ill and in hospital with had mental incapacity in terms of the Medical Report dated 4/8/2026.
4. The said Medical Report from the Nightingale Medical Centre, Kisumu revealed that the subject had been ill for some time and was currently in a critical condition in that facility. That due to acute pneumonia, his neurological status had been affected and a depressed consciousness and unable to perform any transaction.
5. That due to the subject’s condition, he was not able to take care of his matters including making bank transactions to pay for his medical bills. That he was in a critical condition requiring continued medical attention. That it was therefore imperative to grant the orders sought for the subject to be able to be protected.
6. The applicants also relied on the documents exhibited in their affidavit. These included birth certificates of their siblings and a Consent and Authority signed by all their siblings dated 10/8/2026. In the said consent, all the siblings supported the applicants’ application,
7. The main issues for determination are Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248 and Whether the applicant should be appointed as guardian to the subject.
8. The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons.
9. Section 2 of the Act defines “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 diagnosed as psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse.”
10. Section 26 provides 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 of the 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 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.”
11. According to the medical report referred to above, it is clear that the subject cannot comprehend his situation place and time. From the said report, it is apparent that the subject is suffering from a mental disorder in terms of section 2 of the Mental Act and further a medical condition contemplated under section 26 of the Act and is thus incapable of managing his own affairs.
12. Section 26 of the Mental Health Act gives the Court the power to make orders regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable but giving preference to a relative.
13. From the evidence on record, the course of the application is well supported as required under the law. It is therefore my considered view that the prayer for appointment of guardian is well grounded and merited.
14. Consequently, the Summons dated 10/8/2026 is allowed in the following terms: -
a) That the subject Mark I. Owondo Okere aka Mark Owondo Okere is hereby declared mentally incapacitated under Section 26 of the Mental Health Act.
b) That the applicants, Joseph Okello Okere and Annette Achieng Okere are hereby appointed the guardians of the subject to manage the subject’s affairs including the operation of his bank account No. 1107955092 at KCB or any other accounts in any other banks or institutions.
It is hereby so ordered.