1. The Applicant MARGARET WANJIKU KARURI has filed this Notice of Motion seeking the following orders:-
“1. SPENT.
2. THAT MARGARET WANJIKU KARURI a representative of
JAMES WANYOIKE NGUNJU be appointed as the Manager of the Estate and Affairs of JAMES WANYOIKE NGUNJU a Person with Mental illness.
3. THAT the Applicant be allowed to institute proceedings in court and protect the Estate of JAMES WANYOIKE
NGUNJU against any waste or alienation by 3 rd parties including TITLE NUMBER NYERI/MWEIGA/3741 .
4. THAT the Applicant be allowed to operate the subject’s Bank Account Number 034105002643 Post Bank Nyeri Branch and Bank Account Number 0110184479590 Equity Bank Nyeri Branch for the benefit of the subject.
5. THAT the Honourable Court does issue any other order as it may deem fit and just to grant in the circumstances of the matter.
6. THAT the costs of the application be in the costs in the cause.”
2. The application was premised upon Sections 26 and 27 of the Mental Health Act Cap 248 , Laws of Kenya, Section 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010 and was supported by the Affidavit of even date sworn by the Applicant.
3. The Applicant is the sister of the subject JAMES WANYOIKE NGUNJU . She told the court that the subject is an elderly man who has never been married and has no children. The Applicant stated that the subject fell ill in the year 2021 and has continued to deteriorate. That the subject is unable to manage his own affairs due to mental impairment arising from dementia.
4. The applicant told the court that the subject lives in the family home in Mweiga Nyeri County with a brother. She states that they have hired two caregivers for the Applicant. The applicant prays to be appointed as the legal guardian for the subject and manager of his affairs.
5. PW2 EDWARD KINGORI NGUNJU told the court that he is also a brother to the subject. PW2 confirms that the subject is suffering from dementia and is unable to manage his own affairs. PW2 further confirmed that he is aware of this application. He states that he has no objection to the Applicant who is their sister being appointed as the legal guardian for the subject.
ANALYSIS AND DETERMINATION
6. 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]
7. In order to warrant the appointment of a legal guardian it must be
demonstrated that the subject suffers from a mental disorder rendering
him incapable of managing his own affairs.
8. I have perused the letter dated 31 st March 2026 written by the area
Assistant Chief. (Annexture ’MWK 1’ to the Supporting Affidavit). The
chief confirms that the subject is a resident of his location and that he
has no wife or children. The chief confirms that the subject suffers from
mental problem and is being cared for by his two (2) siblings.
9. I have perused the Medical Report dated 10 th December 2025 prepared
by DR MWENDA , Consultant Psychiatrist at Nyeri PGH. (Annexture
‘MWK ‘3’ ). The report indicates that the subject has been diagnosed
with ‘ Moderately severe dementia’ . The psychiatrist goes on to state
that
“James Wanyoike suffers on irreversible dementia illness.
James cannot conduct his business/administer his estate
independently”
10. I was able to see the subject on the virtual platform. He was at the
time of the hearing admitted in hospital and was in a hospital bed. The
subject was an elderly gentleman who appeared weak and frail. He did
not respond when spoken to and appeared confused. It was clear that
the subject was suffering from some mental impairment.
11. In RE: N. M. K [2007] eKLR 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]
12. Finally I find that this application is merited. The same is allowed and
the court makes the following orders:-
1. The subject JAMES WANYOIKE NGUNJU 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 MARGARET WANJIKU KARURI is hereby
appointed as the legal Guardian for the subject and manager of his estate.
3. The Applicant MARGARET WANJIKU KARURI is authorized to manage and operate the assets of the subject including the Bank Accounts No. 0341050002643 held at Post Bank Nyeri Branch and Account No. 0110184479590 held at Equity Bank, Nyeri Branch as well as the property known as LR No. NYERI/MWEIGA/3741.
4. No orders on costs.
Dated in Nyeri this 29 th day of May 2026.
…………………..
MAUREEN A. ODERO
JUDGE
HC MISCELLANEOUS CIVIL APPLICATION NO. E032 OF 2026 JUDGEMENT Page 8 of 8
“1. SPENT.
2. THAT MARGARET WANJIKU KARURI a representative of
JAMES WANYOIKE NGUNJU be appointed as the Manager of the Estate and Affairs of JAMES WANYOIKE NGUNJU a Person with Mental illness.
3. THAT the Applicant be allowed to institute proceedings in court and protect the Estate of JAMES WANYOIKE
NGUNJU against any waste or alienation by 3 rd parties including TITLE NUMBER NYERI/MWEIGA/3741 .
4. THAT the Applicant be allowed to operate the subject’s Bank Account Number 034105002643 Post Bank Nyeri Branch and Bank Account Number 0110184479590 Equity Bank Nyeri Branch for the benefit of the subject.
5. THAT the Honourable Court does issue any other order as it may deem fit and just to grant in the circumstances of the matter.
6. THAT the costs of the application be in the costs in the cause.”
2. The application was premised upon Sections 26 and 27 of the Mental Health Act Cap 248 , Laws of Kenya, Section 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010 and was supported by the Affidavit of even date sworn by the Applicant.
3. The Applicant is the sister of the subject JAMES WANYOIKE NGUNJU . She told the court that the subject is an elderly man who has never been married and has no children. The Applicant stated that the subject fell ill in the year 2021 and has continued to deteriorate. That the subject is unable to manage his own affairs due to mental impairment arising from dementia.
4. The applicant told the court that the subject lives in the family home in Mweiga Nyeri County with a brother. She states that they have hired two caregivers for the Applicant. The applicant prays to be appointed as the legal guardian for the subject and manager of his affairs.
5. PW2 EDWARD KINGORI NGUNJU told the court that he is also a brother to the subject. PW2 confirms that the subject is suffering from dementia and is unable to manage his own affairs. PW2 further confirmed that he is aware of this application. He states that he has no objection to the Applicant who is their sister being appointed as the legal guardian for the subject.
ANALYSIS AND DETERMINATION
6. 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]
7. In order to warrant the appointment of a legal guardian it must be
demonstrated that the subject suffers from a mental disorder rendering
him incapable of managing his own affairs.
8. I have perused the letter dated 31 st March 2026 written by the area
Assistant Chief. (Annexture ’MWK 1’ to the Supporting Affidavit). The
chief confirms that the subject is a resident of his location and that he
has no wife or children. The chief confirms that the subject suffers from
mental problem and is being cared for by his two (2) siblings.
9. I have perused the Medical Report dated 10 th December 2025 prepared
by DR MWENDA , Consultant Psychiatrist at Nyeri PGH. (Annexture
‘MWK ‘3’ ). The report indicates that the subject has been diagnosed
with ‘ Moderately severe dementia’ . The psychiatrist goes on to state
that
“James Wanyoike suffers on irreversible dementia illness.
James cannot conduct his business/administer his estate
independently”
10. I was able to see the subject on the virtual platform. He was at the
time of the hearing admitted in hospital and was in a hospital bed. The
subject was an elderly gentleman who appeared weak and frail. He did
not respond when spoken to and appeared confused. It was clear that
the subject was suffering from some mental impairment.
11. In RE: N. M. K [2007] eKLR 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]
12. Finally I find that this application is merited. The same is allowed and
the court makes the following orders:-
1. The subject JAMES WANYOIKE NGUNJU 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 MARGARET WANJIKU KARURI is hereby
appointed as the legal Guardian for the subject and manager of his estate.
3. The Applicant MARGARET WANJIKU KARURI is authorized to manage and operate the assets of the subject including the Bank Accounts No. 0341050002643 held at Post Bank Nyeri Branch and Account No. 0110184479590 held at Equity Bank, Nyeri Branch as well as the property known as LR No. NYERI/MWEIGA/3741.
4. No orders on costs.
Dated in Nyeri this 29 th day of May 2026.
…………………..
MAUREEN A. ODERO
JUDGE
HC MISCELLANEOUS CIVIL APPLICATION NO. E032 OF 2026 JUDGEMENT Page 8 of 8