In the Matter P.W.G.
And
In the matter of Maryclare Gatome & Ano-Applicant,
And
In the Matter of Mental Health Act, 248 Laws of Kenya.
1. In the fullness of time, the following decisions will be a guide on mental issues and the parameters within which courts operate in determination of these matters;
a. In the Matter of an Application by Laurence McGrady for Judicial Review [2003] NIQB 15, Kerr J sitting in the High Court of Justice in Northern Ireland said this at para [24]: “It is important to recognise clearly the nature of the role to be performed by the medical member in examining the applicant under Rule 11. He does not reach a final view on the question whether the applicant is suffering from a mental illness or severe mental impairment. His role is confined to a determination on a provisional basis of the patient’s mental condition. He does not consider whether the mental disorder (if he finds it) is sufficiently serious to warrant detention in hospital and he discloses the conclusion that he has reached in the course of the hearing.”
b. In English Vs Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 at paragraph 17 for the position where expert evidence is rejected, and also relies on what Dyson LJ said in R Vs Ashworth Hospital Authority and the Mental Health Review Tribunal at paragraph 80, where he stated that: "A tribunal which is rejecting expert evidence must at least indicate the reasoning process by which they have decided to accept some and reject other evidence."
c. In Winterwerp Vs The Netherlands [1979] 2 EHRR 387, 403, paragraph 39: "In the court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
2. In the Family Petition dated 5 th May, 2026, the applicant seeks the following four reliefs under sections 32 of the Civil Procedure Rules Cap 21 the Laws of Kenya;
a. A declaration do issue adjudging the subject P.W.G. as a person suffering from a mental health condition and in need of a guardian and caretaker pursuant to section 26 of the Mental health Act, Cap 248 of the Laws of Kenya.
b. The Petitioners herein James Mwarari Gatome, Anthony Gatome Mwarari , Catherine Wairimu Gatome, Rachel Njeri Gatome, Florence Wangui Gatome, Janet Gathoni Gatome , Agnes Nyambura Gatome and Maryclare Hiuko Gatome be appointed as Guardians of P.W.G. jointly and severally under the Mental Health Act.
c. Petitioners herein are appointed as Managers of the Estate of P.W.G. pursuant to section 27 of the Mental Health Act with full authority over all her moveable and immoveable property, debts, and legacies, including the power to execute and sign all deeds and instruments relating to or evidencing title to any property and to receive any monies or goods on her behalf.
d. The petitioners are hereby authorized to execute all necessary transfer instruments and to do such acts request to the effect the transfer of the property known as Title Number Mavoko Town Block 3/111951(Lukenya Property ) which is jointly owned by the subject and the 1 st Petitioner, to St Perpetua Catholic Church, in fulfilment of the subject’s voluntary pledge and gift made prior to her incapacity.
e. The petitioners are hereby granted access to and authority to operate and /or manage all funds held in the following bank accounts and in the name of the said P.W.G. and to apply such funds towards the subject’s medical care, personal maintenance and other lawful expenses;
i. Equity Bank Harambee Avenue Account Number***219
ii. HFC Buruburu Branch Account No.***411
iii. Absa Bank Ruaraka Branch Account No.***135
iv. Sidian Bank Buruburu Branch Account No.***382.
v. Sidian Bank Buruburu Branch Account No.***504.
vi. Sidian Bank Buruburu Branch Account No.***513.
vii. NCBA Bank NIC House Branch Account No.***678
viii. Cooperative Bank Co-operative House Branch Account No.***900
ix. Absa Bank Ruaraka Branch Account No.***851
x. Sidian Bank Buruburu Branch Account No. ***613
xi. NCBA Bank Account No.***012
xii. Absa Bank Harambee Avenue Branch No.***6421
xiii. Absa Bank Ruaraka Branch Account No. ***467
xiv. Absa Bank Ruaraka Branch Account No.***354.
3. The Petition is supported by an affidavit jointly sworn by all the Petitioners and here is summary of the grounds;
a. The applicants are the children to the subject PWG and attached to the affidavit are their copies of national ID cards.
b. The subject begun to suffer mental illness in te year 2015 and was examined by Prof. Wangari Kuia on 29 th October 2021 and later by Dr S.J. Wroe at Nuffied Health Ipswich and it was opined that the subject was suffering from Alzheimer’s disease.
c. The subject’s condition has progressively deteriorated over time necessitating continuous urgent medical intervention and that which has depleted the petitioners’ finances and now seek to access her estate to meet the costs that accrue in the course of her maintenance.
d. The petitioners have identified specific assets which cannot be properly managed or alienated due to her incapacity. In particular there is a property namely Title Number Mavoko Town Block 3/111951(Lukenya owned by the subject and 1 st Petitioner and is supposed to be transferred to a church as per the wish of the subject.
e. The petitioners submit that they have been bearing a monthly expense of Kshs265,000/ monthly towards medical care and personal maintenance and this financial burden has overwhelmed them as per the copy of the budget.
4. In addition to the reliefs sought by the Petitioners, they have annexed their copies of id cars as Exhibit 1, medical report aby Prof Wangari Kuria dated 29 th October 2021 as Exhibit 2, another medical report by Dr S.J. Wroe as exhibit 3, a copy of the certificate of title as exhibit 3 and a budget and current contribution by all petitioners as Exhibit 5.
Analysis and determination:
5. Section 26 of the Mental Health Act, Cap 248, Laws of Kenya provides for the circumstances under which a Court may make orders for the Guardianship of a Subject (Patient) and the management of their affairs as follows:- “(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) 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.
6. The court has perused the medical report by Prof Wangari Kuria dated 16 th January, 2026 and in the pertinent part of the report, is recorded “the above named has been my patient since 29 th October 2021 when she was diagnosed with dementia and was put on treatment. The dementia has affected her memory and capacity to make decisions as well as psychological wellbeing. She is currently incapable of handling important activities including financial management. Any assistance accorded to the husband is highly appreciated.”
7. Equally, in the 2 nd Medical report by Dr S.J. Wroe it is recorded “Mrs Gatome is severely disorientated. She would not tell me the year, day and date she was unable to name Queen Elizabeth or recognise that King Charles was on the throne she was unable to give me any items in the news. On formal testing with Montreal Cognitive Assessment (MoCA) she scored 9/30 demonstrating wide spread cognitive deficits. Mrs Gatome, speaks good English although her first language is Swahili…the gradually progressive cognitive problems with predominant amnesia initially do suggest Alzheimer’s disease…”
8. Consequently, based on the uncontested averment in the supporting affidavit as well as the grounds on the body of the petition by the applicants, and more particularly the opinions of two Doctors, this court issues the following Orders.
a. A declaration is hereby issued adjudging the subject P.W.G. as a person suffering from a mental health condition and in need of a guardian and caretaker pursuant to section 26 of the Mental Health Act, Cap 248 of the Laws of Kenya.
b. The petitioners herein James Mwarari Gatome, Anthony Gatome Mwarari, Catherine Wairimu Gatome, Rachel Njeri Gatome, Florence Wangui Gatome, Janet Gathoni Gatome, Agnes Nyambura Gatome and Maryclare Hiuko Gatome are hereby appointed as Guardians of PWG, jointly and severally under the Mental health Act.
c. Petitioners are hereby appointed as Managers of the Estate of PWG pursuant to section 27 of the Mental Health Act with full authority over all her moveable and immoveable property, debts, and legacies, including the power to execute and sign all deeds and instruments relating to or evidencing title to any property and to receive any monies or goods on her behalf.
d. The petitioners are hereby authorized to execute all necessary transfer instruments and to do such acts request to the effect the transfer of the property known as Title Number Mavoko Town Block 3/111951(Lukenya Property ) which is jointly owned by the subject and the 1 st Petitioner, to St Perpetua Catholic Church, in fulfilment of the subject’s voluntary pledge and gift made prior to her incapacity.
e. The petitioners are hereby granted access to and authority to operate and /or manage all funds held in the following bank accounts in the name of the said PWG and to apply such funds towards the subject’s medical care, personal maintenance and other lawful expenses;
i. Equity bank Harambee Avenue Account Number***219
ii. HFC Buruburu Branch Account No.***411
iii. Absa Bank Ruaraka Branch Account No.***135
iv. Sidian Bank Buruburu Branch Account No.***382.
v. Sidian Bank Buruburu Branch Account No.***504.
vi. Sidian Bank Buruburu Branch Account No.***513.
vii. NCBA Bank NIC House Branch Account No.***678
viii. Cooperative Bank Coperative House Branch Account No.***900
ix. Absa Bank Ruaraka Branch Account No.***851
x. Sidian Bank Buruburu Branch Account No. ***613
xi. NCBA Bank Account No.***012
xii. Absa Bank Harambee Avenue Branch No.***6421
xiii. Absa Bank Ruaraka Branch Account No. ***467
xiv. Absa Bank Ruaraka Branch Account No.***354.
Delivered in the open court virtually this 30 th July, 2026 in the presence of Christine-CA and Ms Achieng for the applicant.
R.K. Ondieki,
Judge.
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And
In the matter of Maryclare Gatome & Ano-Applicant,
And
In the Matter of Mental Health Act, 248 Laws of Kenya.
1. In the fullness of time, the following decisions will be a guide on mental issues and the parameters within which courts operate in determination of these matters;
a. In the Matter of an Application by Laurence McGrady for Judicial Review [2003] NIQB 15, Kerr J sitting in the High Court of Justice in Northern Ireland said this at para [24]: “It is important to recognise clearly the nature of the role to be performed by the medical member in examining the applicant under Rule 11. He does not reach a final view on the question whether the applicant is suffering from a mental illness or severe mental impairment. His role is confined to a determination on a provisional basis of the patient’s mental condition. He does not consider whether the mental disorder (if he finds it) is sufficiently serious to warrant detention in hospital and he discloses the conclusion that he has reached in the course of the hearing.”
b. In English Vs Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 at paragraph 17 for the position where expert evidence is rejected, and also relies on what Dyson LJ said in R Vs Ashworth Hospital Authority and the Mental Health Review Tribunal at paragraph 80, where he stated that: "A tribunal which is rejecting expert evidence must at least indicate the reasoning process by which they have decided to accept some and reject other evidence."
c. In Winterwerp Vs The Netherlands [1979] 2 EHRR 387, 403, paragraph 39: "In the court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
2. In the Family Petition dated 5 th May, 2026, the applicant seeks the following four reliefs under sections 32 of the Civil Procedure Rules Cap 21 the Laws of Kenya;
a. A declaration do issue adjudging the subject P.W.G. as a person suffering from a mental health condition and in need of a guardian and caretaker pursuant to section 26 of the Mental health Act, Cap 248 of the Laws of Kenya.
b. The Petitioners herein James Mwarari Gatome, Anthony Gatome Mwarari , Catherine Wairimu Gatome, Rachel Njeri Gatome, Florence Wangui Gatome, Janet Gathoni Gatome , Agnes Nyambura Gatome and Maryclare Hiuko Gatome be appointed as Guardians of P.W.G. jointly and severally under the Mental Health Act.
c. Petitioners herein are appointed as Managers of the Estate of P.W.G. pursuant to section 27 of the Mental Health Act with full authority over all her moveable and immoveable property, debts, and legacies, including the power to execute and sign all deeds and instruments relating to or evidencing title to any property and to receive any monies or goods on her behalf.
d. The petitioners are hereby authorized to execute all necessary transfer instruments and to do such acts request to the effect the transfer of the property known as Title Number Mavoko Town Block 3/111951(Lukenya Property ) which is jointly owned by the subject and the 1 st Petitioner, to St Perpetua Catholic Church, in fulfilment of the subject’s voluntary pledge and gift made prior to her incapacity.
e. The petitioners are hereby granted access to and authority to operate and /or manage all funds held in the following bank accounts and in the name of the said P.W.G. and to apply such funds towards the subject’s medical care, personal maintenance and other lawful expenses;
i. Equity Bank Harambee Avenue Account Number***219
ii. HFC Buruburu Branch Account No.***411
iii. Absa Bank Ruaraka Branch Account No.***135
iv. Sidian Bank Buruburu Branch Account No.***382.
v. Sidian Bank Buruburu Branch Account No.***504.
vi. Sidian Bank Buruburu Branch Account No.***513.
vii. NCBA Bank NIC House Branch Account No.***678
viii. Cooperative Bank Co-operative House Branch Account No.***900
ix. Absa Bank Ruaraka Branch Account No.***851
x. Sidian Bank Buruburu Branch Account No. ***613
xi. NCBA Bank Account No.***012
xii. Absa Bank Harambee Avenue Branch No.***6421
xiii. Absa Bank Ruaraka Branch Account No. ***467
xiv. Absa Bank Ruaraka Branch Account No.***354.
3. The Petition is supported by an affidavit jointly sworn by all the Petitioners and here is summary of the grounds;
a. The applicants are the children to the subject PWG and attached to the affidavit are their copies of national ID cards.
b. The subject begun to suffer mental illness in te year 2015 and was examined by Prof. Wangari Kuia on 29 th October 2021 and later by Dr S.J. Wroe at Nuffied Health Ipswich and it was opined that the subject was suffering from Alzheimer’s disease.
c. The subject’s condition has progressively deteriorated over time necessitating continuous urgent medical intervention and that which has depleted the petitioners’ finances and now seek to access her estate to meet the costs that accrue in the course of her maintenance.
d. The petitioners have identified specific assets which cannot be properly managed or alienated due to her incapacity. In particular there is a property namely Title Number Mavoko Town Block 3/111951(Lukenya owned by the subject and 1 st Petitioner and is supposed to be transferred to a church as per the wish of the subject.
e. The petitioners submit that they have been bearing a monthly expense of Kshs265,000/ monthly towards medical care and personal maintenance and this financial burden has overwhelmed them as per the copy of the budget.
4. In addition to the reliefs sought by the Petitioners, they have annexed their copies of id cars as Exhibit 1, medical report aby Prof Wangari Kuria dated 29 th October 2021 as Exhibit 2, another medical report by Dr S.J. Wroe as exhibit 3, a copy of the certificate of title as exhibit 3 and a budget and current contribution by all petitioners as Exhibit 5.
Analysis and determination:
5. Section 26 of the Mental Health Act, Cap 248, Laws of Kenya provides for the circumstances under which a Court may make orders for the Guardianship of a Subject (Patient) and the management of their affairs as follows:- “(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) 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.
6. The court has perused the medical report by Prof Wangari Kuria dated 16 th January, 2026 and in the pertinent part of the report, is recorded “the above named has been my patient since 29 th October 2021 when she was diagnosed with dementia and was put on treatment. The dementia has affected her memory and capacity to make decisions as well as psychological wellbeing. She is currently incapable of handling important activities including financial management. Any assistance accorded to the husband is highly appreciated.”
7. Equally, in the 2 nd Medical report by Dr S.J. Wroe it is recorded “Mrs Gatome is severely disorientated. She would not tell me the year, day and date she was unable to name Queen Elizabeth or recognise that King Charles was on the throne she was unable to give me any items in the news. On formal testing with Montreal Cognitive Assessment (MoCA) she scored 9/30 demonstrating wide spread cognitive deficits. Mrs Gatome, speaks good English although her first language is Swahili…the gradually progressive cognitive problems with predominant amnesia initially do suggest Alzheimer’s disease…”
8. Consequently, based on the uncontested averment in the supporting affidavit as well as the grounds on the body of the petition by the applicants, and more particularly the opinions of two Doctors, this court issues the following Orders.
a. A declaration is hereby issued adjudging the subject P.W.G. as a person suffering from a mental health condition and in need of a guardian and caretaker pursuant to section 26 of the Mental Health Act, Cap 248 of the Laws of Kenya.
b. The petitioners herein James Mwarari Gatome, Anthony Gatome Mwarari, Catherine Wairimu Gatome, Rachel Njeri Gatome, Florence Wangui Gatome, Janet Gathoni Gatome, Agnes Nyambura Gatome and Maryclare Hiuko Gatome are hereby appointed as Guardians of PWG, jointly and severally under the Mental health Act.
c. Petitioners are hereby appointed as Managers of the Estate of PWG pursuant to section 27 of the Mental Health Act with full authority over all her moveable and immoveable property, debts, and legacies, including the power to execute and sign all deeds and instruments relating to or evidencing title to any property and to receive any monies or goods on her behalf.
d. The petitioners are hereby authorized to execute all necessary transfer instruments and to do such acts request to the effect the transfer of the property known as Title Number Mavoko Town Block 3/111951(Lukenya Property ) which is jointly owned by the subject and the 1 st Petitioner, to St Perpetua Catholic Church, in fulfilment of the subject’s voluntary pledge and gift made prior to her incapacity.
e. The petitioners are hereby granted access to and authority to operate and /or manage all funds held in the following bank accounts in the name of the said PWG and to apply such funds towards the subject’s medical care, personal maintenance and other lawful expenses;
i. Equity bank Harambee Avenue Account Number***219
ii. HFC Buruburu Branch Account No.***411
iii. Absa Bank Ruaraka Branch Account No.***135
iv. Sidian Bank Buruburu Branch Account No.***382.
v. Sidian Bank Buruburu Branch Account No.***504.
vi. Sidian Bank Buruburu Branch Account No.***513.
vii. NCBA Bank NIC House Branch Account No.***678
viii. Cooperative Bank Coperative House Branch Account No.***900
ix. Absa Bank Ruaraka Branch Account No.***851
x. Sidian Bank Buruburu Branch Account No. ***613
xi. NCBA Bank Account No.***012
xii. Absa Bank Harambee Avenue Branch No.***6421
xiii. Absa Bank Ruaraka Branch Account No. ***467
xiv. Absa Bank Ruaraka Branch Account No.***354.
Delivered in the open court virtually this 30 th July, 2026 in the presence of Christine-CA and Ms Achieng for the applicant.
R.K. Ondieki,
Judge.
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