In the Matter J.M.N.
And
In the matter of Nancy Wangui Njari-Applicant,
And
In the Matter of Mental Health Act, 248 Laws of Kenya.
1. 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.”
2. 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."
3. 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."
4. In the Family Petition dated 29 th June, 2026, the applicant seeks the following four reliefs under sections 32 of the Civil Procedure Rules Cap 21 the Laws of Kenya;
a. The Respondent who has been discharged from Nairobi Lane Medical Centre be adjudged to suffering mental illness/infirmity described as vascular Dementia, HTN and requires assistance, care and support for his wellbeing.
b. The applicant be granted authority to make decisions regarding the care of then subject, JMN, as a legal guardian.
5. The applicant Nancy Wangui Ngari states that she is the biological mother to the subject and that the subject was deserted by his wife who travelled to Turkey three years to take up a job and cut communication with the subject. The subject and the wife were blessed with two children PNM and JNM and the older has mental challenges.
6. Sometimes on 12 th June, 2026, the applicant sought medical attention for the subject from Dr Gitari and Dr Irimu of Chiromo Lane Medical Centre where he was admitted and treated for a medical illness known as Vascular Dementia as evidenced by a discharge summary and clinical sheet from the Doctor and a Report acknowledged by a Resident Psychiatrist at the University of Nairobi.
7. The older child Teaching and referral Hospital to the subject one PNM is facing health challenges and is under medical supervision as evidenced by Outpatient Card Prescriptions from Mathare National and teaching Hospital.
8. The subject’s general and mental condition has drastically deteriorated and he appears capacity to make decisions affecting his personal needs, adequately understand and /or appreciate the nature and consequences of such inability and so it is imperative that this court makes an inquiry as to his mental soundness.
Analysis and determination:
9. Ssection 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.
10. Medical Report dated June, 29 th 2026 Dr A.K. Gitari had the following to say; ‘’in reference to the letter dated 19 th June, 2026we confirm that the above names is on treatment and follow up due to a mental illness and chronic physical illness. This mental illness makes him have impaired cognitive and executive function. It is our opinion that he would benefit from the services of a legal guardian. The illness may have interfered with his social and occupational performance.”
11. Consequently, based on the uncontested averment in the supporting as well as the grounds on the body of the petition by the applicant, and more particularly the comments of the Doctor, this court issues the following Orders.
a. That J.M.N. is hereby adjudged to suffering mental illness/infirmity described as Vascular Dementia , HTN and requires assistance, care and support for his wellbeing.
b. Nancy Wangui Ngari is hereby granted authority to make decisions regarding the care of the subject, JMN, as a legal guardian.
c. On account of J.M.N’s condition, Nancy Wangui Ngari is hereby appointed as guardian of J.M.N. Additionally, she is granted custody, care and management of J.M.N. in accordance with the Mental Health Act.
Delivered in the open court virtually this 28 th July, 2026 in the presence of Christine-CA.
Hon. R.K. Ondieki,
Judge.
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And
In the matter of Nancy Wangui Njari-Applicant,
And
In the Matter of Mental Health Act, 248 Laws of Kenya.
1. 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.”
2. 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."
3. 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."
4. In the Family Petition dated 29 th June, 2026, the applicant seeks the following four reliefs under sections 32 of the Civil Procedure Rules Cap 21 the Laws of Kenya;
a. The Respondent who has been discharged from Nairobi Lane Medical Centre be adjudged to suffering mental illness/infirmity described as vascular Dementia, HTN and requires assistance, care and support for his wellbeing.
b. The applicant be granted authority to make decisions regarding the care of then subject, JMN, as a legal guardian.
5. The applicant Nancy Wangui Ngari states that she is the biological mother to the subject and that the subject was deserted by his wife who travelled to Turkey three years to take up a job and cut communication with the subject. The subject and the wife were blessed with two children PNM and JNM and the older has mental challenges.
6. Sometimes on 12 th June, 2026, the applicant sought medical attention for the subject from Dr Gitari and Dr Irimu of Chiromo Lane Medical Centre where he was admitted and treated for a medical illness known as Vascular Dementia as evidenced by a discharge summary and clinical sheet from the Doctor and a Report acknowledged by a Resident Psychiatrist at the University of Nairobi.
7. The older child Teaching and referral Hospital to the subject one PNM is facing health challenges and is under medical supervision as evidenced by Outpatient Card Prescriptions from Mathare National and teaching Hospital.
8. The subject’s general and mental condition has drastically deteriorated and he appears capacity to make decisions affecting his personal needs, adequately understand and /or appreciate the nature and consequences of such inability and so it is imperative that this court makes an inquiry as to his mental soundness.
Analysis and determination:
9. Ssection 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.
10. Medical Report dated June, 29 th 2026 Dr A.K. Gitari had the following to say; ‘’in reference to the letter dated 19 th June, 2026we confirm that the above names is on treatment and follow up due to a mental illness and chronic physical illness. This mental illness makes him have impaired cognitive and executive function. It is our opinion that he would benefit from the services of a legal guardian. The illness may have interfered with his social and occupational performance.”
11. Consequently, based on the uncontested averment in the supporting as well as the grounds on the body of the petition by the applicant, and more particularly the comments of the Doctor, this court issues the following Orders.
a. That J.M.N. is hereby adjudged to suffering mental illness/infirmity described as Vascular Dementia , HTN and requires assistance, care and support for his wellbeing.
b. Nancy Wangui Ngari is hereby granted authority to make decisions regarding the care of the subject, JMN, as a legal guardian.
c. On account of J.M.N’s condition, Nancy Wangui Ngari is hereby appointed as guardian of J.M.N. Additionally, she is granted custody, care and management of J.M.N. in accordance with the Mental Health Act.
Delivered in the open court virtually this 28 th July, 2026 in the presence of Christine-CA.
Hon. R.K. Ondieki,
Judge.
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