1. The subject of these proceedings is Kerry Kachimbi Furaha. Ms Furaha was born on 27th March 2000 at Kaloleni in Kilifi County. The father’s name is Kennedy Furaha Kazungu, and her mother is Lydiah Kitsao. I shall hereafter refer to Ms Furaha as the Patient.
2. According to medical reports, Ms Furaha suffered birth asphyxia, as a result of which she developed neonatal convulsion. She suffers from both physical and mental handicaps and requires constant and intensive medical attention.
3. Vide a Petition filed herein, the Petitioner, Kennedy Furaha Kazungu, seeks the following orders:-
a. The patient, Kerry Furaha Kachimbi, be and is hereby adjudged to be a person suffering from a mental disorder under Section 26 of the Mental Health Act, Cap 248 of the Laws of Kenya;
b. That Kennedy Furaha Kazungu be and is hereby appointed as the guardian of Kerry Furaha Kachimbi;
c. That Kennedy Furaha Kazungu be and is hereby appointed the manager of the estate of Kerry Furaha Kachimbi, which includes movables or immovable properties, money, debts and legacies, with power to execute, sign all deeds and instruments relating to or evidencing the title or right to any property, including spousal consent or giving right to receive any money or goods and proceeds, to take over and or instate litigation or claims and also to include not only such property as has been originally in possession of or under the control of any such persons, but also any property or for which the same has been converted or exchanged and anything required by such conversion whether immediately or otherwise;
d. That the costs of this application be provided for from the estate of Kerry Furaha Kachimbi; and
e. Such other and further orders as this honourable court may deem just.
4. The Petitioner attached to the Petition a copy of the certificate of birth of the Patient, identification documents and assessment done by the government to ascertain disability, and a certificate of registration of a business name in favour of the Patient, among other documents.
5. Upon the filing of the Petition this court directed that it would be heard in a closed session in the open court. The matter was heard, and a total of three witnesses testified. I shall briefly summarize their evidence below.
6. The 1st witness was Kennedy Furaha Kazungu. He is the father of the Patient. Mr Kazungu testified that Kerry was born disabled. Her own sibling is, however, in good health. The Patient was assessed and found to have mental and physical disability.
7. The Petitioner further testified that he opened a business for her called Kerry Kachimbi Enterprises. He now wishes to manage the said business and would like to access her account so that he can pay for her treatment.
8. The second witness was Lydiah Mwabaya Kazungu. Lydia is the mother of the patient. She stated that she had no objection to the applicant being appointed as a guardian of the patient.
9. The last witness was Dr Susan Muthinye Mua. Dr Mua is a psychiatrist who has one and a half years of experience as a psychiatrist. She testified that she examined the patient and wrote the report dated 5th November 2024. In her view, the patient had cerebral palsy at birth and suffered from developmental challenges. She produced her report.
10. The court had the occasion to observe the Patient in open court. The Patient could hardly talk. She was also unable to move and was in a wheelchair.
11. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:-
1. Whether the patient suffers from mental illness? and
2. If so, what order should be issued?
12. 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 suffering from mental illness.”
13. 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. Although Kennedy Furaha Kazungu is not a “supporter” of the patient, as he wasn’t appointed in writing, it is my finding that being the Patient’s father, he is his “representative” within the meaning of the Act and, therefore, has the locus to file the instant petition.
14. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:-
“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.”
15. 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 the application was filed in the patient's interest. In addition, the court's orders must aim to achieve the said goal.
16. The evidence adduced shows that Kerry Kachimbi Furaha has developmental challenges which developed after birth asphyxia that led to neonatal convulsions. She also has physical disabilities. Dr Mua diagnosed her condition as a mental illness. Given the finding of the said doctor and her present situation, it is my view that the Patient suffers from a mental illness.
17. The Petitioner averred that he registered a business name in Kerry’s name so that she could benefit from tenders set aside for people with disabilities. The court has seen a certificate of registration of the said business. It is highly likely, as stated by the Petitioner that the said business has funds in its accounts. Treatment of mental illnesses is expensive. Being ill, the Patient may not appreciate the need for treatment nor be able to manage the treatment regime. The appointment of the Petitioner as the Patient's guardian ad litem and also the manager will enable him to access her funds so that he can pay for the nursing care and medication.
18. The Petitioner’s testimony and the medical professional’s report show that the patient cannot manage her affairs. Therefore, it will be in her best interest that a manager be appointed to manage her estate. The managers/guardians ad litem will ensure that She receives the most appropriate care possible, that her estate is not wasted or lost, and that her interests are protected.
19. I am satisfied, based on the evidence adduced, that the Patient has mental illness. There is, therefore, a case for the appointment of the Petitioner as the guardian ad litem of the Patient, Kerry Kachimbi Furaha, and the manager of her estate. In the circumstances, I order as follows:-
1. The Petitioner, Kennedy Furaha Kazungu, be and is hereby appointed as the guardian ad litem of the Patient, Kerry Kachimbi Furaha, and also the manager of her estate;
2. Kennedy Furaha Kazungu shall manage the Patient’s estate but shall not have the power to sell, charge or otherwise alienate her immovable property without the leave of the Court;
3. Pursuant to section 27(4) of the Mental Health Act, the appointment of the manager/guardian ad litem shall be published in the Kenya Gazette;
4. The manager/guardian ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of his appointment; and
5. I make no orders as to costs.
20. Orders accordingly.
Dated and signed at Mombasa this 22nd day of January 2025. Delivered virtually via Microsoft TEAMS.
2. According to medical reports, Ms Furaha suffered birth asphyxia, as a result of which she developed neonatal convulsion. She suffers from both physical and mental handicaps and requires constant and intensive medical attention.
3. Vide a Petition filed herein, the Petitioner, Kennedy Furaha Kazungu, seeks the following orders:-
a. The patient, Kerry Furaha Kachimbi, be and is hereby adjudged to be a person suffering from a mental disorder under Section 26 of the Mental Health Act, Cap 248 of the Laws of Kenya;
b. That Kennedy Furaha Kazungu be and is hereby appointed as the guardian of Kerry Furaha Kachimbi;
c. That Kennedy Furaha Kazungu be and is hereby appointed the manager of the estate of Kerry Furaha Kachimbi, which includes movables or immovable properties, money, debts and legacies, with power to execute, sign all deeds and instruments relating to or evidencing the title or right to any property, including spousal consent or giving right to receive any money or goods and proceeds, to take over and or instate litigation or claims and also to include not only such property as has been originally in possession of or under the control of any such persons, but also any property or for which the same has been converted or exchanged and anything required by such conversion whether immediately or otherwise;
d. That the costs of this application be provided for from the estate of Kerry Furaha Kachimbi; and
e. Such other and further orders as this honourable court may deem just.
4. The Petitioner attached to the Petition a copy of the certificate of birth of the Patient, identification documents and assessment done by the government to ascertain disability, and a certificate of registration of a business name in favour of the Patient, among other documents.
5. Upon the filing of the Petition this court directed that it would be heard in a closed session in the open court. The matter was heard, and a total of three witnesses testified. I shall briefly summarize their evidence below.
6. The 1st witness was Kennedy Furaha Kazungu. He is the father of the Patient. Mr Kazungu testified that Kerry was born disabled. Her own sibling is, however, in good health. The Patient was assessed and found to have mental and physical disability.
7. The Petitioner further testified that he opened a business for her called Kerry Kachimbi Enterprises. He now wishes to manage the said business and would like to access her account so that he can pay for her treatment.
8. The second witness was Lydiah Mwabaya Kazungu. Lydia is the mother of the patient. She stated that she had no objection to the applicant being appointed as a guardian of the patient.
9. The last witness was Dr Susan Muthinye Mua. Dr Mua is a psychiatrist who has one and a half years of experience as a psychiatrist. She testified that she examined the patient and wrote the report dated 5th November 2024. In her view, the patient had cerebral palsy at birth and suffered from developmental challenges. She produced her report.
10. The court had the occasion to observe the Patient in open court. The Patient could hardly talk. She was also unable to move and was in a wheelchair.
11. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:-
1. Whether the patient suffers from mental illness? and
2. If so, what order should be issued?
12. 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 suffering from mental illness.”
13. 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. Although Kennedy Furaha Kazungu is not a “supporter” of the patient, as he wasn’t appointed in writing, it is my finding that being the Patient’s father, he is his “representative” within the meaning of the Act and, therefore, has the locus to file the instant petition.
14. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:-
“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.”
15. 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 the application was filed in the patient's interest. In addition, the court's orders must aim to achieve the said goal.
16. The evidence adduced shows that Kerry Kachimbi Furaha has developmental challenges which developed after birth asphyxia that led to neonatal convulsions. She also has physical disabilities. Dr Mua diagnosed her condition as a mental illness. Given the finding of the said doctor and her present situation, it is my view that the Patient suffers from a mental illness.
17. The Petitioner averred that he registered a business name in Kerry’s name so that she could benefit from tenders set aside for people with disabilities. The court has seen a certificate of registration of the said business. It is highly likely, as stated by the Petitioner that the said business has funds in its accounts. Treatment of mental illnesses is expensive. Being ill, the Patient may not appreciate the need for treatment nor be able to manage the treatment regime. The appointment of the Petitioner as the Patient's guardian ad litem and also the manager will enable him to access her funds so that he can pay for the nursing care and medication.
18. The Petitioner’s testimony and the medical professional’s report show that the patient cannot manage her affairs. Therefore, it will be in her best interest that a manager be appointed to manage her estate. The managers/guardians ad litem will ensure that She receives the most appropriate care possible, that her estate is not wasted or lost, and that her interests are protected.
19. I am satisfied, based on the evidence adduced, that the Patient has mental illness. There is, therefore, a case for the appointment of the Petitioner as the guardian ad litem of the Patient, Kerry Kachimbi Furaha, and the manager of her estate. In the circumstances, I order as follows:-
1. The Petitioner, Kennedy Furaha Kazungu, be and is hereby appointed as the guardian ad litem of the Patient, Kerry Kachimbi Furaha, and also the manager of her estate;
2. Kennedy Furaha Kazungu shall manage the Patient’s estate but shall not have the power to sell, charge or otherwise alienate her immovable property without the leave of the Court;
3. Pursuant to section 27(4) of the Mental Health Act, the appointment of the manager/guardian ad litem shall be published in the Kenya Gazette;
4. The manager/guardian ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of his appointment; and
5. I make no orders as to costs.
20. Orders accordingly.
Dated and signed at Mombasa this 22nd day of January 2025. Delivered virtually via Microsoft TEAMS.