1. Vide Petition dated 20th January 2023, the petitioners seek the following orders that :
a. THAT RUTH KALUKI MUNYAO of ID No 10289259 be declared to be suffering from a metal disorder as defined in the Mental Health Act, Cap 248 Laws of Kenya.
b. THAT RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO be and appointed as the Guardians of RUTH KALUKI MUNYAO
c. THAT RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO be appointed as the Managers of the Estate and all the affairs of RUTH KALUKI MUNYAO.
d. THAT RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO be granted access to funds and all the assets in the Estate of RUTH KALUKI MUNYAO to help offset the High Costs incurred in the continued treatment and management of her estate.
e. Any other order or relief the Court may deem fit to grant in the circumstances.
2. The Petition is supported by the Affidavit of the 1st Petitioner sworn on the 20th January 2023, Authority to plead dated 20th January 2023 by the 2nd Petitioner and Affidavit of Consent to Petition sworn by the son of the Subject , Ted Mutisya Munyao on 20th January 2023. The Petitioners are the husband and son of the Subject.
3. PW1— RICHARD MUNYAO KANUI. He is the husband of the Subject. That the subject complained of back pains in January 2022 and she was taken to Langata Hospital in Nairobi. That she did not improve after seeking further treatment at General Accident Center and Nairobi Hospital, he decided to seek treatment in India.
4. It was in India that the wife was diagnosed with progressive encephalomyletis with rigidity and myoclonus. After treatment in India it was recommended that she be on home based care. Since her return in October 2022 she remains totally dependent on assistance and she is no responsive.
5. They seek this order so that they are able to access the assets that are registered in her name and the bank accounts so that they have the resources to cater for her treatment.
6. PW2- DR. WILLIAM MOROGA The Subject has been under his care since her return from India. She has lost of her cognitive functions. She is in a neuro vegetative state and is unable to make any decisions.. He has seen the medical reports dated 5th August 2022 (from Manipal Hospital ) and 27th February 2023 ( 27th February 2023 ( from Apex Physio therapy Services) and is in agreement with the diagnosis and conclusion that the Subject is dependable.
7. PW3-JEFF KITONYI MUNYAO is the 2nd Petitioner. He agrees with the statement of his Father (PW1).
8. PW 4 TED MUTISYA MUNYAO He is the other son of the Subject and consents to the Petition. The orders sought are in the interest of his mother.
9. The Court had an opportunity to see the Subject. Observed that the family has set up for her a medical bed in the house and she requires support to sit up. She was unresponsive.
10. The most recent report by Apex Phsiotherapy services advised that the subject’s ‘ … mental and cognitive state of the brain still not in a position to make judgement ( semi-conscious) hence can’t participate in any decision making besides the inability to functionally use the limbs. Kindly consider her dependable and has to be assisted.’
11. From the affidavit evidence I garner that the subject is aged 53years. She has been incapacitated by the illness and incapable of managing her own affairs and is totally dependent on her family and the medical team.
12. The Petitioners have set out the properties of the Subject and bank accounts under paragraph 17 of the Petition. The Petitioners have also made available marriage certificate, birth certificate in respect to the 2 Petitioner and CR 12 forms in respect to the companies in which the Subject is a Director.
13. Section 26 of the Mental Health Act, 2022 Cap 248 Laws of Kenya provides for the circumstances under which a court may make orders for the care and Administration of property of persons with mental illness.
14. I have carefully considered this Petition, the Affidavits and reports filed in court. I am satisfied that the Subject is a person suffering from a mental disorder and is incapable of managing her own affairs.
15. Accordingly, the Petition is allowed and
a. RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO are appointed as Guardians/ Representatives to RUTH KALUKI MUNYAO
b. THAT RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO are appointed as the Managers of the Estate and all the affairs of RUTH KALUKI MUNYAO.
c. THAT RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO are granted access to funds and all the assets in the Estate of RUTH KALUKI MUNYAO to help offset the High Costs incurred in the continued treatment and management of her estate.
d. Pursuant to this appointment RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging RUTH KALOKI MUNYAO
e. As Manager of the Estate of RUTH KALOKI MUNYAO, RICHARD MUNYAO KANUI and JEFF KITONYI MUNYAO may dispose of the property only with the sanction of the court.
f. In accordance with Section 27(4) of the Mental Health Act,2022 the Petitioners shall cause the publication of notice in the Gazette, informing the public of their appointment as the managers of the estate of RUTH KALOKI MUNYAO
g. The matter will be mentioned before court on 16th November 2023 to confirm compliance.
16. Costs to be borne by the estate of the Subject.
It is so ordered
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…29th………day of……March…..2023