' JUDGMENT
INTRODUCTION
The Petition was brought by way of Certificate of Urgency under the provisions of Sections 26 and 28 (1) (2) of the Mental Health Act, Cap 248 Laws of Kenya; and the orders sought by the Petitioner are as follows;
Spent
That S.M.N. is incapable of protecting her interests with regard to her affairs due to mental incapacity
THAT this Honourable Court may be pleased to appoint the Petitioner MARIA WAMBUI CHORU as the Guardian of S.M.N. (hereinafter referred to as the Subject) for the purposes of pursing compensation from the owner of motor vehicle registration number KBW 857Y which caused the subject’s head injuries leading to her mental incapacity in case number LIMURU MCCC NO, E405/2022 MARIA WAMBUI CHORU (suing as the mother and next friend to S.M.N. vs ALLAN NGINYA GATHIMBA & CLIFF KIPKORIR CHIRCHIR.
THAT due to the road traffic accident on 17/10/2020 S.M.N. sustained severe head injuries causing her permanent disability which led to cognitive and memory impairment. The Subject is incapable of advancing her case in court, hence it is necessary to appoint a guardian.
THAT the Petitioner is the mother of the Subject who suffered a total brain injury as a result of the accident and the Petitioner has been taking care of the Subject due to her inability to take care of herself;
THAT the Petitioner is therefore seeking a Guardianship Order to represent the Subject in LIMURU MCCC NO, E405/2022 MARIA WAMBUI CHORU (suing as the mother and next friend to S.M.N. vs ALLAN NGINYA GATHIMBA & CLIFF KIPKORIR CHIRCHIR.
THAT it is therefore imperative that the Petitioner be appointed the legal guardian in respect of S.M.N. herein;
THAT the intended guardian is aware and is ready willing and able to assume her role in pursuing compensation of the Subject as a guardian and any such responsibility arising thereof.
THAT the intended guardian is well aware of her duties to her daughter should the orders herein be granted as prayed as the same are in the best interests of S.M.N.
Directions were given that the subject and her doctor be in attendance at the hearing of the application; at the hearing hereof the Petitioner relied on the Supporting Affidavit made on the 26 th May, 2025 and on the medical evidence adduced by Dr. Maina Ruga; hereunder is a summary of Petitioner’s case.
PETITIONERS CASE
The Petitioners relied on the grounds on the face of the Petition and the Supporting Affidavit made by the Petitioner, who is the mother of the subject; she has also annexed the Chiefs Letter dated 23/05/2025 confirming that she is the sole surviving parent of the subject and seeks to look after the subject and manage her affairs.
The Petitioner has actual and physical custody of the subject and takes care of her; that the subject is also not able to look after herself only moves around with the assistance of her mother; further she has no capacity to manage any financial affairs, comprehend transactions, or protect her interests.
Dr. Maina Ruga a General Medical Practitioner examined the subject on 28/10/2022 prepared the Medical Report (date not legible) which report was prepared and produced into court by the said doctor and is marked as “PExh.I” ;
Upon examining the subject, the Doctors’ assessment of her his findings were that the subject was in a poor general condition as she had weakness of her right upper and lower limbs. Therefore, she was not able to walk and needed to be supported by the mother to stand and to walk. The subject sustained a severe head injury with likely brain damage and was not able to communicate or hold any conversation and her mental capacity was assessed as challenged. The subject is unable to do anything for herself.
The witness formed an opinion that the subject mentally and physically challenged with little chance of recovery.
Given the subject’s current mental status the estate stands to suffer irreparable loss if the prayer sought is not granted; The Petitioner prays that she be appointed as the subject’s legal guardian to pursue compensation for her from the owner of the motor vehicle registration number KBW 857Y and also be appointed to manage and protect her estate.
ISSUES FOR DETERMINATION
After reading the Petitioners averments and hearing the doctors evidence this court has framed only one issue for determination;
Whether the subject has a mental disorder requiring the appointment of a guardian and a manager of her estate;
ANALYSIS
The application is premised under the provisions of the Mental Health Act which governs the handling of persons suffering from mental disabilities.
The Petitioner deposed that the subject was suffering from mental impairment and was not capable of taking charge of her affairs in particular pursuing compensation for herself from the owner of the motor vehicle registration number KBW 857Y .
There is a presumption of law that all persons are sane until proved otherwise; the burden of proof to controvert this presumption was upon the Petitioner to demonstrate that the subject was indeed mentally challenged; the Petitioner relied wholly on the evidence of Dr. Maina Ruga and on the annexure produced and marked as ‘PExh.1’.
At the hearing hereof, Dr. Maina Ruga the doctor was in attendance and gave evidence on the treatment of the subject; he relied on the report he prepared and produced into court as ‘PExh.1’ .
The applicable law is found at Section 26 (1) of the Mental Health Act which empowers this court to make orders for the management of a person suffering from a mental disorder; and for a guardian of the subject who can either be a close relative or a person the court determines to be suitable.
Upon perusal of the annexure prepared by the said Dr. Maina Ruga this court is satisfied with his evidence when treating the subject for her condition after her discharge from Hospital; the court notes that the application is uncontested and that it is supported by satisfactory medical evidence on the subject’s mental status.
From the material placed before it and upon examining the subject who was in the doctors waiting room being supported by her mother and having a totally incorrigible communication with them, this court is satisfied that the subject has a mental disorder and is not capable of managing her own affairs; this court is also satisfied that she requires a guardian and a manager to manage her affairs.
FINDINGS AND DETERMINATION
For the foregoing reasons this court makes the following findings and determinations: -
The Petition is found to have merit and it is hereby allowed.
The subject herein S.M.N. is hereby adjudged to be a person suffering from a mental disorder pursuant to Section 26 of the Mental Health Act.
The subject is found to be a person who requires to be managed as she has a mental disorder; and this court finds that this is a suitable case for the issuance of the following orders.
This Court hereby appoints MARIA WAMBUI CHORU the Petitioner to be the legal guardian and manager of the subject S.M.N. The Petitioner shall pursue compensation and shall not distribute the Subjects award without the consent of the Court.
The Petitioner shall in particular do the following: -
Execute and sign documents on behalf of the Subject with respect to the intended suit seeking compensation from the owner of the motor vehicle registration number KBW 857Y
Receive monies and proceeds for the award for and on behalf of the Subject.
Utilize these proceeds to cater for the subject’s health care, medical expenses and maintenance;
To render to family members regular yearly accounts on the monies received for and on behalf of the Subject.
This being a family matter there shall be no order as to costs.
Orders accordingly.
DATED, SIGNED and DELIVERED via Teams at KIAMBU this 3 rd day of SEPTEMBER, 2025.
MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Mrs Njau -for the Petitioner
'
INTRODUCTION
The Petition was brought by way of Certificate of Urgency under the provisions of Sections 26 and 28 (1) (2) of the Mental Health Act, Cap 248 Laws of Kenya; and the orders sought by the Petitioner are as follows;
Spent
That S.M.N. is incapable of protecting her interests with regard to her affairs due to mental incapacity
THAT this Honourable Court may be pleased to appoint the Petitioner MARIA WAMBUI CHORU as the Guardian of S.M.N. (hereinafter referred to as the Subject) for the purposes of pursing compensation from the owner of motor vehicle registration number KBW 857Y which caused the subject’s head injuries leading to her mental incapacity in case number LIMURU MCCC NO, E405/2022 MARIA WAMBUI CHORU (suing as the mother and next friend to S.M.N. vs ALLAN NGINYA GATHIMBA & CLIFF KIPKORIR CHIRCHIR.
THAT due to the road traffic accident on 17/10/2020 S.M.N. sustained severe head injuries causing her permanent disability which led to cognitive and memory impairment. The Subject is incapable of advancing her case in court, hence it is necessary to appoint a guardian.
THAT the Petitioner is the mother of the Subject who suffered a total brain injury as a result of the accident and the Petitioner has been taking care of the Subject due to her inability to take care of herself;
THAT the Petitioner is therefore seeking a Guardianship Order to represent the Subject in LIMURU MCCC NO, E405/2022 MARIA WAMBUI CHORU (suing as the mother and next friend to S.M.N. vs ALLAN NGINYA GATHIMBA & CLIFF KIPKORIR CHIRCHIR.
THAT it is therefore imperative that the Petitioner be appointed the legal guardian in respect of S.M.N. herein;
THAT the intended guardian is aware and is ready willing and able to assume her role in pursuing compensation of the Subject as a guardian and any such responsibility arising thereof.
THAT the intended guardian is well aware of her duties to her daughter should the orders herein be granted as prayed as the same are in the best interests of S.M.N.
Directions were given that the subject and her doctor be in attendance at the hearing of the application; at the hearing hereof the Petitioner relied on the Supporting Affidavit made on the 26 th May, 2025 and on the medical evidence adduced by Dr. Maina Ruga; hereunder is a summary of Petitioner’s case.
PETITIONERS CASE
The Petitioners relied on the grounds on the face of the Petition and the Supporting Affidavit made by the Petitioner, who is the mother of the subject; she has also annexed the Chiefs Letter dated 23/05/2025 confirming that she is the sole surviving parent of the subject and seeks to look after the subject and manage her affairs.
The Petitioner has actual and physical custody of the subject and takes care of her; that the subject is also not able to look after herself only moves around with the assistance of her mother; further she has no capacity to manage any financial affairs, comprehend transactions, or protect her interests.
Dr. Maina Ruga a General Medical Practitioner examined the subject on 28/10/2022 prepared the Medical Report (date not legible) which report was prepared and produced into court by the said doctor and is marked as “PExh.I” ;
Upon examining the subject, the Doctors’ assessment of her his findings were that the subject was in a poor general condition as she had weakness of her right upper and lower limbs. Therefore, she was not able to walk and needed to be supported by the mother to stand and to walk. The subject sustained a severe head injury with likely brain damage and was not able to communicate or hold any conversation and her mental capacity was assessed as challenged. The subject is unable to do anything for herself.
The witness formed an opinion that the subject mentally and physically challenged with little chance of recovery.
Given the subject’s current mental status the estate stands to suffer irreparable loss if the prayer sought is not granted; The Petitioner prays that she be appointed as the subject’s legal guardian to pursue compensation for her from the owner of the motor vehicle registration number KBW 857Y and also be appointed to manage and protect her estate.
ISSUES FOR DETERMINATION
After reading the Petitioners averments and hearing the doctors evidence this court has framed only one issue for determination;
Whether the subject has a mental disorder requiring the appointment of a guardian and a manager of her estate;
ANALYSIS
The application is premised under the provisions of the Mental Health Act which governs the handling of persons suffering from mental disabilities.
The Petitioner deposed that the subject was suffering from mental impairment and was not capable of taking charge of her affairs in particular pursuing compensation for herself from the owner of the motor vehicle registration number KBW 857Y .
There is a presumption of law that all persons are sane until proved otherwise; the burden of proof to controvert this presumption was upon the Petitioner to demonstrate that the subject was indeed mentally challenged; the Petitioner relied wholly on the evidence of Dr. Maina Ruga and on the annexure produced and marked as ‘PExh.1’.
At the hearing hereof, Dr. Maina Ruga the doctor was in attendance and gave evidence on the treatment of the subject; he relied on the report he prepared and produced into court as ‘PExh.1’ .
The applicable law is found at Section 26 (1) of the Mental Health Act which empowers this court to make orders for the management of a person suffering from a mental disorder; and for a guardian of the subject who can either be a close relative or a person the court determines to be suitable.
Upon perusal of the annexure prepared by the said Dr. Maina Ruga this court is satisfied with his evidence when treating the subject for her condition after her discharge from Hospital; the court notes that the application is uncontested and that it is supported by satisfactory medical evidence on the subject’s mental status.
From the material placed before it and upon examining the subject who was in the doctors waiting room being supported by her mother and having a totally incorrigible communication with them, this court is satisfied that the subject has a mental disorder and is not capable of managing her own affairs; this court is also satisfied that she requires a guardian and a manager to manage her affairs.
FINDINGS AND DETERMINATION
For the foregoing reasons this court makes the following findings and determinations: -
The Petition is found to have merit and it is hereby allowed.
The subject herein S.M.N. is hereby adjudged to be a person suffering from a mental disorder pursuant to Section 26 of the Mental Health Act.
The subject is found to be a person who requires to be managed as she has a mental disorder; and this court finds that this is a suitable case for the issuance of the following orders.
This Court hereby appoints MARIA WAMBUI CHORU the Petitioner to be the legal guardian and manager of the subject S.M.N. The Petitioner shall pursue compensation and shall not distribute the Subjects award without the consent of the Court.
The Petitioner shall in particular do the following: -
Execute and sign documents on behalf of the Subject with respect to the intended suit seeking compensation from the owner of the motor vehicle registration number KBW 857Y
Receive monies and proceeds for the award for and on behalf of the Subject.
Utilize these proceeds to cater for the subject’s health care, medical expenses and maintenance;
To render to family members regular yearly accounts on the monies received for and on behalf of the Subject.
This being a family matter there shall be no order as to costs.
Orders accordingly.
DATED, SIGNED and DELIVERED via Teams at KIAMBU this 3 rd day of SEPTEMBER, 2025.
MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Mrs Njau -for the Petitioner
'