Introduction
1. The Applicant filed a Notice of Motion application dated 23rd June, 2023 vide which she sought the following orders:-
(1) That Naida Omar Shee be appointed guardian ad litem on behalf of Omar Yassin Bwana;
(2) That the Applicant be allowed to access bank account No. 01100044439400 held at Co-operative Bank, Mtwapa Branch with the account name of Omar Yassin Bwana;
(3) That the applicant be allowed to control and execute, sign all deeds and instruments relating to any ongoing transactions or to proceed to develop improve, take over and or institute any litigation and or claims;
(4) That Bakari Yassin be ordered to release the Applicant’s husband Omar Yassin Bwana to the Applicant and be restrained from interfering with the affairs of the Applicant’s family; and
(5) That costs of this application be in the cause.
2. The basis upon which the application was brought was inter alia that the Applicant is the wife of Omar Yassin Bwana (hereafter “the Patient” or “the Ward”). The Applicant stated that one Bakari Yassin had taken custody of the Ward on 16th June 2023 and admitted him at Al Fidaus Children Hospital, against her wish something the Petitioner/Applicant was apprehensive would worsen his condition. That the Ward has mental disorder which had made him unable to talk coherently or to make his own decisions regarding his personal needs and affairs. It was thus urged that I issue the orders sought “for purpose of providing for the personal needs of the Applicant’s husband’s daily care and most importantly medication and general upkeep.”
3. The Petitioner/Applicant attached to her application a Marriage Certificate as evidence of her marriage with the patient, the Affidavit of No Objection dated 22nd June, 2023 purportedly signed by Yasin Omar Yasin, Tima Mohamed and Hannan Idarus Mohamed and 2 medical reports prepared by doctors CM Mwangome and Kheri Hassan Kheri, both being psychiatrists practicing in Mombasa.
4. In his report dated 11th April, 2023 Dr. CM Mwangome found that
“a brain CT scan done on him showed brain atrophy consistent with brain changes when one has dementia. The progression is not reversible, but it can be slowed down with medication. Mr. Bwana is not in a position to do any business transaction and cannot administer his estate.”
That of Dr. Khari Hassan Khari stated that “currently he has a diagnosis of severe dementia. A Head CT scan showed brain atrophy leukoaraisosis and pata sinusitis
… recommendation patient discharged under supervised care and DOT (direct observation therapy) by his wife, physiotherapy and follow-up clinics.”
Proceedings in Court
5. I heard the said Notice of Motion application on 5th July, 2023. Being convinced that the application had merits I gave the following orders:-
1. I appointed Naida Omar Shee as the guardian ad litem of the Ward;
2. I allowed the said guardian ad litem to access the Ward’s bank account No. 01100044439400 held at co-operative Bank Mtwapa Branch;
3. I allowed the Applicant to control and execute, sign all deeds and instruments relating to any ongoing transactions or to proceed to develop improve take over and or institute any litigation and or claims;
4. I ordered Bakari Yassin to release the Applicant’s husband Omar Yassin Bwana to the Applicant and be restrained from interfering with the affairs of the Applicant’s family; and
5. I set down the matter for mention on 26th July, 2023 when the Ward would be brought to open Court, for the Court to make its own assessment.
6. The Ward was brought to Court on 26th July 2023. The Interested Parties had however instructed an advocate Mr. Idris Ahmed. I ordered that the matter be mentioned in chambers in view of its nature. I noted that the Ward was in an extremely fragile state. He was incoherent and could not control his saliva. He appeared to be unaware of his surroundings. Sadly however the Applicant was not on good terms with her brothers-in-law and stepchildren. Having in mind the delicate nature of the matter I encouraged the family members to consider agreeing on 2 additional guardians ad litem. Regrettably parties were unable to agree. Consequently on 16th August 2023 during the Court’s vacation I heard the matter.
7. The testimonies of the parties mainly dealt with the acrimonious nature of the relationship between the Applicant, on the one hand and Mr. Bakari Yasin and Jaffar Omar, on the other hand. It was common ground that the Ward is seriously ill and in need of urgent care and attention. Similarly, the witnesses agreed that the patient could not manage his affairs and is in dire need of a Manager/guardian ad litem.
8. The Applicant called 2 witnesses to wit herself and Bakari Ali Mwambuga. The Interested parties called Jaffar Salim Faraj alias Jaffar Omar and Bakari Yasin, the son and brother respectively of the Ward. The 2 medical reports were produced by consent.
9. I have already referred to the findings of the 2 medical reports. It is clear that Omar Yassin Bwana has a mental disorder and that he is unable to manage his affairs. From the medical reports, his dementia has deteriorated badly. I have no doubt that he is in need of Manager/Guardian ad litem to manage his estate and to ensure that he gets the most appropriate treatment.
The applicable Law
10. 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 Act responsibly taking into account the best interests of the estate of the person who is suffering from mental illness.”
11. 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 Applicant is a representative of the Ward in her capacity as his wife.
12. 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.”
13. I would add that the third test is whether the application is in the best interest of the 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.
14. I have read the reports of Dr. Kheri Hassan Kheri and Dr. Charles M. Mwangome. I had the opportunity to observe the Ward in Court in very close quarters. I am satisfied that he has a severe mental illness. From the testimonies of the witnesses, the patient is unable to manage his own affairs and requires medical attention. 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 he receives the most appropriate care possible.
15. I have already alluded to the bad blood existing between the family members. Whereas the application was made by the Applicant solely I must issue orders that would ensure that the Ward receives the best care possible and also results in proper management of his estate. Taking the foregoing into consideration I am inclined to appoint the Applicant and the son of the Ward, Jaffar Omar, as the joint Managers/Guardian-ad-litem of the Ward.
Disposition
16. I therefore make the following orders:-
(1) I appoint Nadia Omar Shee and Jaffar Salim Faraj aka Jaffar Omar as the Joint Managers/Guardians-ad-litem of the Ward Omar Yassin Bwana;
(2) I direct that Nadia Omar Shee retains custody of the Ward Omar Yassin Bwana. The Ward shall however be treated at the most appropriate psychiatric hospital in Mombasa, as jointly determined by the guardians-ad-litem/Managers. In the event of disagreement, the parties are at liberty to apply to the Court, for the Court to make the determination itself;
(3) I review my orders I made on 26th July 2023 and order that the joint managers/Guardians-ad-litem shall have access to the Ward’s bank account, to wit, bank account No. 01100044439400, held at Co-operative Bank, Mtwapa Branch, in the name of Omar Yassin Bwana;
(4) The Joint Managers/Guardians-ad-litem shall manage the estate of the Ward. They shall however not have the power to sell, charge or otherwise alienate immovable properties of the Ward without leave of the Court;
(5) Pursuant to section 27(4) of the Mental Health Act the appointment of Joint Managers/Guardian-ad-litem shall be published in the Kenya Gazette by the Court;
(6) The Managers/Guardians-ad-litem shall file the inventory/statement of account of the estate of the Ward within 6 months of the date of this ruling; and
(7) There shall be 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. Idris Ahmed for the Interested Parties; and
Mr. Arthur Ranyondo – Court Assistant.
1. The Applicant filed a Notice of Motion application dated 23rd June, 2023 vide which she sought the following orders:-
(1) That Naida Omar Shee be appointed guardian ad litem on behalf of Omar Yassin Bwana;
(2) That the Applicant be allowed to access bank account No. 01100044439400 held at Co-operative Bank, Mtwapa Branch with the account name of Omar Yassin Bwana;
(3) That the applicant be allowed to control and execute, sign all deeds and instruments relating to any ongoing transactions or to proceed to develop improve, take over and or institute any litigation and or claims;
(4) That Bakari Yassin be ordered to release the Applicant’s husband Omar Yassin Bwana to the Applicant and be restrained from interfering with the affairs of the Applicant’s family; and
(5) That costs of this application be in the cause.
2. The basis upon which the application was brought was inter alia that the Applicant is the wife of Omar Yassin Bwana (hereafter “the Patient” or “the Ward”). The Applicant stated that one Bakari Yassin had taken custody of the Ward on 16th June 2023 and admitted him at Al Fidaus Children Hospital, against her wish something the Petitioner/Applicant was apprehensive would worsen his condition. That the Ward has mental disorder which had made him unable to talk coherently or to make his own decisions regarding his personal needs and affairs. It was thus urged that I issue the orders sought “for purpose of providing for the personal needs of the Applicant’s husband’s daily care and most importantly medication and general upkeep.”
3. The Petitioner/Applicant attached to her application a Marriage Certificate as evidence of her marriage with the patient, the Affidavit of No Objection dated 22nd June, 2023 purportedly signed by Yasin Omar Yasin, Tima Mohamed and Hannan Idarus Mohamed and 2 medical reports prepared by doctors CM Mwangome and Kheri Hassan Kheri, both being psychiatrists practicing in Mombasa.
4. In his report dated 11th April, 2023 Dr. CM Mwangome found that
“a brain CT scan done on him showed brain atrophy consistent with brain changes when one has dementia. The progression is not reversible, but it can be slowed down with medication. Mr. Bwana is not in a position to do any business transaction and cannot administer his estate.”
That of Dr. Khari Hassan Khari stated that “currently he has a diagnosis of severe dementia. A Head CT scan showed brain atrophy leukoaraisosis and pata sinusitis
… recommendation patient discharged under supervised care and DOT (direct observation therapy) by his wife, physiotherapy and follow-up clinics.”
Proceedings in Court
5. I heard the said Notice of Motion application on 5th July, 2023. Being convinced that the application had merits I gave the following orders:-
1. I appointed Naida Omar Shee as the guardian ad litem of the Ward;
2. I allowed the said guardian ad litem to access the Ward’s bank account No. 01100044439400 held at co-operative Bank Mtwapa Branch;
3. I allowed the Applicant to control and execute, sign all deeds and instruments relating to any ongoing transactions or to proceed to develop improve take over and or institute any litigation and or claims;
4. I ordered Bakari Yassin to release the Applicant’s husband Omar Yassin Bwana to the Applicant and be restrained from interfering with the affairs of the Applicant’s family; and
5. I set down the matter for mention on 26th July, 2023 when the Ward would be brought to open Court, for the Court to make its own assessment.
6. The Ward was brought to Court on 26th July 2023. The Interested Parties had however instructed an advocate Mr. Idris Ahmed. I ordered that the matter be mentioned in chambers in view of its nature. I noted that the Ward was in an extremely fragile state. He was incoherent and could not control his saliva. He appeared to be unaware of his surroundings. Sadly however the Applicant was not on good terms with her brothers-in-law and stepchildren. Having in mind the delicate nature of the matter I encouraged the family members to consider agreeing on 2 additional guardians ad litem. Regrettably parties were unable to agree. Consequently on 16th August 2023 during the Court’s vacation I heard the matter.
7. The testimonies of the parties mainly dealt with the acrimonious nature of the relationship between the Applicant, on the one hand and Mr. Bakari Yasin and Jaffar Omar, on the other hand. It was common ground that the Ward is seriously ill and in need of urgent care and attention. Similarly, the witnesses agreed that the patient could not manage his affairs and is in dire need of a Manager/guardian ad litem.
8. The Applicant called 2 witnesses to wit herself and Bakari Ali Mwambuga. The Interested parties called Jaffar Salim Faraj alias Jaffar Omar and Bakari Yasin, the son and brother respectively of the Ward. The 2 medical reports were produced by consent.
9. I have already referred to the findings of the 2 medical reports. It is clear that Omar Yassin Bwana has a mental disorder and that he is unable to manage his affairs. From the medical reports, his dementia has deteriorated badly. I have no doubt that he is in need of Manager/Guardian ad litem to manage his estate and to ensure that he gets the most appropriate treatment.
The applicable Law
10. 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 Act responsibly taking into account the best interests of the estate of the person who is suffering from mental illness.”
11. 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 Applicant is a representative of the Ward in her capacity as his wife.
12. 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.”
13. I would add that the third test is whether the application is in the best interest of the 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.
14. I have read the reports of Dr. Kheri Hassan Kheri and Dr. Charles M. Mwangome. I had the opportunity to observe the Ward in Court in very close quarters. I am satisfied that he has a severe mental illness. From the testimonies of the witnesses, the patient is unable to manage his own affairs and requires medical attention. 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 he receives the most appropriate care possible.
15. I have already alluded to the bad blood existing between the family members. Whereas the application was made by the Applicant solely I must issue orders that would ensure that the Ward receives the best care possible and also results in proper management of his estate. Taking the foregoing into consideration I am inclined to appoint the Applicant and the son of the Ward, Jaffar Omar, as the joint Managers/Guardian-ad-litem of the Ward.
Disposition
16. I therefore make the following orders:-
(1) I appoint Nadia Omar Shee and Jaffar Salim Faraj aka Jaffar Omar as the Joint Managers/Guardians-ad-litem of the Ward Omar Yassin Bwana;
(2) I direct that Nadia Omar Shee retains custody of the Ward Omar Yassin Bwana. The Ward shall however be treated at the most appropriate psychiatric hospital in Mombasa, as jointly determined by the guardians-ad-litem/Managers. In the event of disagreement, the parties are at liberty to apply to the Court, for the Court to make the determination itself;
(3) I review my orders I made on 26th July 2023 and order that the joint managers/Guardians-ad-litem shall have access to the Ward’s bank account, to wit, bank account No. 01100044439400, held at Co-operative Bank, Mtwapa Branch, in the name of Omar Yassin Bwana;
(4) The Joint Managers/Guardians-ad-litem shall manage the estate of the Ward. They shall however not have the power to sell, charge or otherwise alienate immovable properties of the Ward without leave of the Court;
(5) Pursuant to section 27(4) of the Mental Health Act the appointment of Joint Managers/Guardian-ad-litem shall be published in the Kenya Gazette by the Court;
(6) The Managers/Guardians-ad-litem shall file the inventory/statement of account of the estate of the Ward within 6 months of the date of this ruling; and
(7) There shall be 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. Idris Ahmed for the Interested Parties; and
Mr. Arthur Ranyondo – Court Assistant.