The Petitioners Stephen Waweru Mwangi, Ann Gathoni Mwangi and Peter Mwaura Mwangi approached this court under Sections 26(1)(3), 28 and 29 of the Mental Act Cap 248 Laws of Kenya seeking the following substantive orders:
1. That Allan Mwangi be adjudged to be a person suffering from mental disorder under Section 26 of the Mental Health Act Cap 240 of the Laws of Kenya and this court do entrust unto the Petitioners the maintenance and general provision for Allan Mwangi.
2. That the Petitioners be appointed as the Managers of Allan Mwangi’s estate which includes: any such description of movable property, money, debts, legacies, power to execute or sign all deeds and instruments relating to or evidencing the title or right to any property or giving a rise to receive any money or goods and to proceed to take over and/or institute any litigation and/or claims, also including any property as had originally been in possession or under the control of any other person but also any other property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise.
The petitioners are all biological children of Allan Mwangi. The basis of seeking the foregoing orders as set out in the petition is that Allan Mwangi has been suffering from Early onset Cognitive decline a condition that has significantly impacted his intellectual, cognitive and physical well-being. The petitioners aver that Allan Mwangi requires constant care and medication for foreseeable future and is currently unable to manage his affairs and finances.
The petition was filed alongside an application seeking interim orders for the petitioners to be appointed on an interim basis guardians/manager of Allan Mwangi. That application was considered by the court and directions were given that the petitioners do file an affidavit as to the whereabouts of their mother and a further report of MRI taken of the subject herein Allan Mwangi following the recommendation made by Dr. Kwasa.
The petitioners complied with the directions of the court and filed an affidavit of consent sworn by their mother Lucy Njeri Peninah who consented to that legal guardianship be granted to the petitioners. There is a report by Dr. Kwasa to the effect that the subject herein is suffering from early onset of cognitive decline.
The petition was heard by way of viva voce evidence. All the petitioners testified in court. They were in agreement that the subject herein was suffering from mental disorder and there was need for a guardian/manager to be appointed to manage his affairs. They were all in agreement that the 1 st petitioner be made the guardian/manager of the affairs of the subject herein. Further to the foregoing the subject was also availed in court and the court made observation as to his condition.
I have considered the petition herein, the evidence in support of the same as set out in the affidavit in support of the application and the viva voce evidence given by the petitioners. Section 2 of the Mental Health Act defines person suffering from mental disorder as follows:
“Means a person who has been found to be so suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcoholic or substance abuse.”
Further to the foregoing, Section 26 of the Mental Health Act provides:
“An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—
(a)a supporter of the person with mental illness; or
(b)the representative of the person where the person with mental illness has not appointed a supporter.
(2) An application under subsection (1) shall be submitted together with an affidavit setting out—
(a)the grounds upon which the application is made;
(b)the full particulars as to the property and relatives of the person to whom it relates; and
(c)a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.
(3)A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—
(a)person in respect of whom the application is made; or
(b)where an application is made by a supporter to the representative of the person with mental illness.
(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given.
(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.
(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—
(a)court to examine the person; or
(b)person to be examined by a qualified registered mental health practitioner”
Further to the foregoing Section 27 of the Act provides:
“The court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness including —
(a)an order making provision for the maintenance of the person;
(b)an order making provision for the maintenance of members of the person’s immediate family who are dependent upon the person; and
(c)an order making provision for the payment of the person’s debts.
(2) The court may appoint a manager of the estate of a person with mental illness for the purposes of safeguarding the property of that person.
(3) The court may for the purposes of section (1), appoint the supporter or the representative of the person with mental illness as the manager of the estate of the person under subsection (2).
(4) The court shall, by notice in the Gazette, inform the public of the appointment of a person as the manager of the estate of a person who is suffering from mental illness.
(5) Within fourteen days of the Gazette Notice under subsection (4), any person may lodge an objection to the person appointed as manager.”
From the foregoing provisions of the Act, the court in considering whether to appoint a guardian or manager in respect of a person with mental illness, the main factors which the court must take into consideration are, firstly there must be medical evidence warranting the determination by the court that the subject suffers from mental disorder, Secondly, the person to be appointed either as a guardian or manager is fit to be so appointed, and lastly, the court must be satisfied that a proposed will utilize his/her powers for the benefit and welfare of the subject. In other words, the overriding principle is the welfare and best interest of the subject which must guide the court.
In the instant case there is no dispute that the petitioner produced medical report showing that the subject herein suffers from mental disorder. The subject was also availed in court and the observation of the court is that the subject is unable to run his own affairs.
It also instructive that the petitioners appeared before the court and gave viva voce evidence and they were all in agreement that the 1 st petitioner is fit to be the guardian and manager of the affairs of the subject. The 1 st petitioner in his evidence indicated that he will preserve the estate of the subject and maintain proper books of account. He also stated that they have appointed caregiver for the subject and that they will all be available to ensure the subject is well taken care of.
In the circumstances I do allow the petition dated 24 th April, 2026 in terms of prayers (a) and (b) thereof
Dated, signed and delivered this 8 th day of July, 2026
Francis N. Kyambia
Judge
In the presence of
Oyoo for the Petitioners
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1. That Allan Mwangi be adjudged to be a person suffering from mental disorder under Section 26 of the Mental Health Act Cap 240 of the Laws of Kenya and this court do entrust unto the Petitioners the maintenance and general provision for Allan Mwangi.
2. That the Petitioners be appointed as the Managers of Allan Mwangi’s estate which includes: any such description of movable property, money, debts, legacies, power to execute or sign all deeds and instruments relating to or evidencing the title or right to any property or giving a rise to receive any money or goods and to proceed to take over and/or institute any litigation and/or claims, also including any property as had originally been in possession or under the control of any other person but also any other property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise.
The petitioners are all biological children of Allan Mwangi. The basis of seeking the foregoing orders as set out in the petition is that Allan Mwangi has been suffering from Early onset Cognitive decline a condition that has significantly impacted his intellectual, cognitive and physical well-being. The petitioners aver that Allan Mwangi requires constant care and medication for foreseeable future and is currently unable to manage his affairs and finances.
The petition was filed alongside an application seeking interim orders for the petitioners to be appointed on an interim basis guardians/manager of Allan Mwangi. That application was considered by the court and directions were given that the petitioners do file an affidavit as to the whereabouts of their mother and a further report of MRI taken of the subject herein Allan Mwangi following the recommendation made by Dr. Kwasa.
The petitioners complied with the directions of the court and filed an affidavit of consent sworn by their mother Lucy Njeri Peninah who consented to that legal guardianship be granted to the petitioners. There is a report by Dr. Kwasa to the effect that the subject herein is suffering from early onset of cognitive decline.
The petition was heard by way of viva voce evidence. All the petitioners testified in court. They were in agreement that the subject herein was suffering from mental disorder and there was need for a guardian/manager to be appointed to manage his affairs. They were all in agreement that the 1 st petitioner be made the guardian/manager of the affairs of the subject herein. Further to the foregoing the subject was also availed in court and the court made observation as to his condition.
I have considered the petition herein, the evidence in support of the same as set out in the affidavit in support of the application and the viva voce evidence given by the petitioners. Section 2 of the Mental Health Act defines person suffering from mental disorder as follows:
“Means a person who has been found to be so suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcoholic or substance abuse.”
Further to the foregoing, Section 26 of the Mental Health Act provides:
“An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—
(a)a supporter of the person with mental illness; or
(b)the representative of the person where the person with mental illness has not appointed a supporter.
(2) An application under subsection (1) shall be submitted together with an affidavit setting out—
(a)the grounds upon which the application is made;
(b)the full particulars as to the property and relatives of the person to whom it relates; and
(c)a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.
(3)A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—
(a)person in respect of whom the application is made; or
(b)where an application is made by a supporter to the representative of the person with mental illness.
(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given.
(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.
(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—
(a)court to examine the person; or
(b)person to be examined by a qualified registered mental health practitioner”
Further to the foregoing Section 27 of the Act provides:
“The court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness including —
(a)an order making provision for the maintenance of the person;
(b)an order making provision for the maintenance of members of the person’s immediate family who are dependent upon the person; and
(c)an order making provision for the payment of the person’s debts.
(2) The court may appoint a manager of the estate of a person with mental illness for the purposes of safeguarding the property of that person.
(3) The court may for the purposes of section (1), appoint the supporter or the representative of the person with mental illness as the manager of the estate of the person under subsection (2).
(4) The court shall, by notice in the Gazette, inform the public of the appointment of a person as the manager of the estate of a person who is suffering from mental illness.
(5) Within fourteen days of the Gazette Notice under subsection (4), any person may lodge an objection to the person appointed as manager.”
From the foregoing provisions of the Act, the court in considering whether to appoint a guardian or manager in respect of a person with mental illness, the main factors which the court must take into consideration are, firstly there must be medical evidence warranting the determination by the court that the subject suffers from mental disorder, Secondly, the person to be appointed either as a guardian or manager is fit to be so appointed, and lastly, the court must be satisfied that a proposed will utilize his/her powers for the benefit and welfare of the subject. In other words, the overriding principle is the welfare and best interest of the subject which must guide the court.
In the instant case there is no dispute that the petitioner produced medical report showing that the subject herein suffers from mental disorder. The subject was also availed in court and the observation of the court is that the subject is unable to run his own affairs.
It also instructive that the petitioners appeared before the court and gave viva voce evidence and they were all in agreement that the 1 st petitioner is fit to be the guardian and manager of the affairs of the subject. The 1 st petitioner in his evidence indicated that he will preserve the estate of the subject and maintain proper books of account. He also stated that they have appointed caregiver for the subject and that they will all be available to ensure the subject is well taken care of.
In the circumstances I do allow the petition dated 24 th April, 2026 in terms of prayers (a) and (b) thereof
Dated, signed and delivered this 8 th day of July, 2026
Francis N. Kyambia
Judge
In the presence of
Oyoo for the Petitioners
2