Introduction
1. The Petitioner filed a Petition dated 18th May 2023 on 15th June 2023. In the said Petition he sought to have his father Abdulaziz Awadh Omar (hereafter referred to as the “Ward” or “person suffering from mental illness”) declared as a person suffering from mental illness. Consequently, he sought to be appointed as the guardian of the Ward and manager of his properties with powers to “do all things that the ward as a proprietor would be entitled to under Law, including but not limited to executing all deeds and instruments, evidence the title or right to the property, to receive or payout and or deliver any money or goods, to take over and or institute any litigation and or claims relating to the properties”.
2. The Petition was grounded on the averment that the Ward was a 50-year-old male individual suffering from mental illness. The Petitioner is his son and primary caregiver. In the circumstances, it was prayed that the Petitioner be appointed as a guardian of the affairs and properties of the Ward so as to protect his estate.
3. The Petition was supported by the affidavit of Nuru Ahmed Alwi (hereafter “Nuru”). Nuru is the wife of the Ward and the biological mother of the Petitioner. She deposed that the Ward was diagnosed with the mental disorder in 1994 as a result of drug abuse. Although he was treated in Kenya and also in India he did not recover. His condition worsened to the extent that he developed chronic schizophrenia (paranoid type) in 2005. As a result of his illness the Ward is unable to socialize or take care of himself or his family nor to participate in the distribution of the estate of his late father which is now subject of arbitration by an arbitrator mutually appointed by the family to facilitate the distribution.
4. The Petitioner attached to the Petition a marriage certificate (of the Ward and Nuru), a letter from the Assistant Chief of Tudor 4 Sub-location, discharge note issued by Drug Abuse Information Rehabilitation and Research Centre dated 11th April 2000, the medical reports dated 13th and 14th March, 2023 issued by Dr. CM Mwangome and Dr. E. H. O Mahero, both of whom are psychiatrists.
Proceedings in Court
5. The Petition was heard on 28th July 2023. On the said date the Petitioner testified. It was his evidence that the Ward is in need of care and protection as he suffers from permanent mental illness. He testified that the Ward had been examined by Dr. Mahero and Dr. Mwangome. Both psychiatrists were unanimous that the Ward would not recover. The Petitioner listed the assets of the Ward as being:-
1. Land and business in Lamu;
2. Bank account with ABSA Bank Kenya PLC;
3. Shares in Bayusuf & Sons Ltd;
4. Shares in Rea Vipingo PLC; and
5. Motor vehicles registration numbers KBK 743Y, KCB939C and KDK 123K.
6. Nuru and the siblings of the Petitioner appeared in Court, save for the Petitioner's younger brother, who is presently in college in Malaysia. The mother and the siblings of the Petitioner consented to the application.
7. The Ward was in Court on the said date. I had an opportunity to observe him closely. I also asked him questions. He appeared to understand what the Court proceedings were about. He consented to the application by his son to be appointed as his guardian ad litem/Manager. The Ward did not appear to be under any pressure or coercion whatsoever.
8. As the doctor was absent I stood over the matter for further hearing on 4th August 2023. On 4th August 2023 Dr. Janbibi Abdalla, a psychiatrist currently attached to Port Reitz Sub County Hospital, Mombasa testified. She stated that she interviewed the Ward and wrote the report dated 25th July 2023 which she then produced. It was her testimony that Ward suffers from schizophrenia. In her professional opinion, Ward requires assistance with his daily activities.
The Applicable Law
9. The 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 under the said legislation is to safeguard the property of the Ward. An appointment once made 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 of Appointment in the Kenya Gazette. Section 28(4) of the said Act provides that:-
“a manager shall perform the manager’s duties under this Act responsibly taking into account the best interests of the estate of the person who is suffering from mental illness.”
10. 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. I am satisfied that the Petitioner is a representative of the Ward in his capacity as his son.
11. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated:-
“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.”
12. I would add that the third test is whether the application is in the best interest of the Patient/Ward. People with mental illnesses have diminished abilities to manage their affairs. Their situation is analogous to that of children. The court must be sure that the application was filed in the interest of the Ward. The orders that the court issues must be aimed at achieving the said goal.
13. I have read the reports of Dr. Subhash Shah, Dr. EHO Mahero and Dr. Charles Mwangome. I had the opportunity to observe the Patient in Court in very close quarters. I am satisfied that he has a mental illness. From the testimonies of the witnesses, the Ward is unable to manage his own affairs. It will therefore be in his best interest that a Manager/guardian ad litem is appointed to manage his estate. The Manager/guardian-ad-litem will ensure that she receives the most appropriate care possible.
14. Based on the foregoing I am satisfied that case has been made for the appointment of the Petitioner as the Manager/guardian-ad-litem of the patient ward.
Disposition
15. I therefore make the following orders:-
1. The Petitioner Mohamed Abdulaziz Baysuf is appointed as the Manager/Guardian ad litem of the Ward Abdulaziz Awadh Omar;
2. The Manager/Guardian ad litem shall manage the estate of the patient, in particular;
(1) Land and business in Lamu;
(2) Bank account(s) with Absa Bank Kenya PLC;
(3) Shares in Bayusuf & Sons Ltd;
(4) Shares in Rea Vipingo PLC;
(5) Motor vehicles registration numbers KDK 743Y, KCB939C and KDK 123K; and
(6) The Manager/Guardian ad litem shall represent the interest of the Ward in the ongoing arbitration concerning the estate of the Ward’s father.
The Manager/Guardian ad litem shall however not have the power to sell, charge or otherwise alienate immovable property(ies) of the Ward without the leave of 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 by the Court;
4. The Manager/Guardian ad litem shall file the inventory/statement of account of the estate of the Ward within 6 months of his appointment; and
5. No orders as to costs.
Orders accordingly.
DELIVERED, DATED, and SIGNED at MOMBASA this 30th day of August 2023 via Microsoft TEAMS.
GREGORY MUTAI
JUDGE
In the presence of:-
No appearance for the Applicant
Mr. Arthur Ranyondo – Court Assistant
1. The Petitioner filed a Petition dated 18th May 2023 on 15th June 2023. In the said Petition he sought to have his father Abdulaziz Awadh Omar (hereafter referred to as the “Ward” or “person suffering from mental illness”) declared as a person suffering from mental illness. Consequently, he sought to be appointed as the guardian of the Ward and manager of his properties with powers to “do all things that the ward as a proprietor would be entitled to under Law, including but not limited to executing all deeds and instruments, evidence the title or right to the property, to receive or payout and or deliver any money or goods, to take over and or institute any litigation and or claims relating to the properties”.
2. The Petition was grounded on the averment that the Ward was a 50-year-old male individual suffering from mental illness. The Petitioner is his son and primary caregiver. In the circumstances, it was prayed that the Petitioner be appointed as a guardian of the affairs and properties of the Ward so as to protect his estate.
3. The Petition was supported by the affidavit of Nuru Ahmed Alwi (hereafter “Nuru”). Nuru is the wife of the Ward and the biological mother of the Petitioner. She deposed that the Ward was diagnosed with the mental disorder in 1994 as a result of drug abuse. Although he was treated in Kenya and also in India he did not recover. His condition worsened to the extent that he developed chronic schizophrenia (paranoid type) in 2005. As a result of his illness the Ward is unable to socialize or take care of himself or his family nor to participate in the distribution of the estate of his late father which is now subject of arbitration by an arbitrator mutually appointed by the family to facilitate the distribution.
4. The Petitioner attached to the Petition a marriage certificate (of the Ward and Nuru), a letter from the Assistant Chief of Tudor 4 Sub-location, discharge note issued by Drug Abuse Information Rehabilitation and Research Centre dated 11th April 2000, the medical reports dated 13th and 14th March, 2023 issued by Dr. CM Mwangome and Dr. E. H. O Mahero, both of whom are psychiatrists.
Proceedings in Court
5. The Petition was heard on 28th July 2023. On the said date the Petitioner testified. It was his evidence that the Ward is in need of care and protection as he suffers from permanent mental illness. He testified that the Ward had been examined by Dr. Mahero and Dr. Mwangome. Both psychiatrists were unanimous that the Ward would not recover. The Petitioner listed the assets of the Ward as being:-
1. Land and business in Lamu;
2. Bank account with ABSA Bank Kenya PLC;
3. Shares in Bayusuf & Sons Ltd;
4. Shares in Rea Vipingo PLC; and
5. Motor vehicles registration numbers KBK 743Y, KCB939C and KDK 123K.
6. Nuru and the siblings of the Petitioner appeared in Court, save for the Petitioner's younger brother, who is presently in college in Malaysia. The mother and the siblings of the Petitioner consented to the application.
7. The Ward was in Court on the said date. I had an opportunity to observe him closely. I also asked him questions. He appeared to understand what the Court proceedings were about. He consented to the application by his son to be appointed as his guardian ad litem/Manager. The Ward did not appear to be under any pressure or coercion whatsoever.
8. As the doctor was absent I stood over the matter for further hearing on 4th August 2023. On 4th August 2023 Dr. Janbibi Abdalla, a psychiatrist currently attached to Port Reitz Sub County Hospital, Mombasa testified. She stated that she interviewed the Ward and wrote the report dated 25th July 2023 which she then produced. It was her testimony that Ward suffers from schizophrenia. In her professional opinion, Ward requires assistance with his daily activities.
The Applicable Law
9. The 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 under the said legislation is to safeguard the property of the Ward. An appointment once made 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 of Appointment in the Kenya Gazette. Section 28(4) of the said Act provides that:-
“a manager shall perform the manager’s duties under this Act responsibly taking into account the best interests of the estate of the person who is suffering from mental illness.”
10. 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. I am satisfied that the Petitioner is a representative of the Ward in his capacity as his son.
11. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated:-
“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.”
12. I would add that the third test is whether the application is in the best interest of the Patient/Ward. People with mental illnesses have diminished abilities to manage their affairs. Their situation is analogous to that of children. The court must be sure that the application was filed in the interest of the Ward. The orders that the court issues must be aimed at achieving the said goal.
13. I have read the reports of Dr. Subhash Shah, Dr. EHO Mahero and Dr. Charles Mwangome. I had the opportunity to observe the Patient in Court in very close quarters. I am satisfied that he has a mental illness. From the testimonies of the witnesses, the Ward is unable to manage his own affairs. It will therefore be in his best interest that a Manager/guardian ad litem is appointed to manage his estate. The Manager/guardian-ad-litem will ensure that she receives the most appropriate care possible.
14. Based on the foregoing I am satisfied that case has been made for the appointment of the Petitioner as the Manager/guardian-ad-litem of the patient ward.
Disposition
15. I therefore make the following orders:-
1. The Petitioner Mohamed Abdulaziz Baysuf is appointed as the Manager/Guardian ad litem of the Ward Abdulaziz Awadh Omar;
2. The Manager/Guardian ad litem shall manage the estate of the patient, in particular;
(1) Land and business in Lamu;
(2) Bank account(s) with Absa Bank Kenya PLC;
(3) Shares in Bayusuf & Sons Ltd;
(4) Shares in Rea Vipingo PLC;
(5) Motor vehicles registration numbers KDK 743Y, KCB939C and KDK 123K; and
(6) The Manager/Guardian ad litem shall represent the interest of the Ward in the ongoing arbitration concerning the estate of the Ward’s father.
The Manager/Guardian ad litem shall however not have the power to sell, charge or otherwise alienate immovable property(ies) of the Ward without the leave of 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 by the Court;
4. The Manager/Guardian ad litem shall file the inventory/statement of account of the estate of the Ward within 6 months of his appointment; and
5. No orders as to costs.
Orders accordingly.
DELIVERED, DATED, and SIGNED at MOMBASA this 30th day of August 2023 via Microsoft TEAMS.
GREGORY MUTAI
JUDGE
In the presence of:-
No appearance for the Applicant
Mr. Arthur Ranyondo – Court Assistant