MISCELLANEOUS CASE NO. E099 OF 2024
IN THE MATER OF ELIZABETH WANGARI GICHANE
VERONICA NJOKI KAGIRI
JAMES MAITHO KAGIRI ……………..……………..……APPLICANTS
JUDGEMENT
- Before this Court is the application dated 12th November 2024 by which the Applicants VERONICA NJOKI KAGIRI and JAMES MAITHO KAGIRI seek the following orders:-
“1. SPENT
2. THAT this honourable court be pleased to appoint VERONICA NJOKI KAGIRI ID NO. 20669349 and JAMES MAITHO KAGIRI ID NO. 24023549 as guardian ad-litem for ELIZABETH WANGARI GICHANE.
3. THAT upon issuance of prayer (1) above, the applicants be granted leave to operate account number 0080101537345 Equity Bank Ltd Othaya Branch belonging to ELIZABETH WANGARI GICHANE since she is currently incapable of writing or speaking and is in need of urgent medical attention.
4. Cost to be in the cause.”
2. The application which was premised upon Section 26(1) A and B of the Mental Health Act, Cap 248, Laws of Kenya Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of law was supported by the Affidavit of even date sworn by the Applicants.
3. The matter was canvassed by way of Vive Voce evidence on the virtual platform.
4. The Applicants told the court that they are both the biological children of ELIZABETH WANGARI GICHANE (the subject herein). They state that the subject suffered a stroke in the year 2021 and that she is also suffering from dementia. That as a result the subject is unable to manage her own affairs. The subject currently lives with the 1st Applicant in her home in Ruiru, Kiambu County.
5. The Applicants pray to be appointed as legal guardians for the subject and managers of her estate.
ANALYSIS AND DETERMINATION
6. Section 26 of the Mental Health Act, Cap 248 provides for the circumstances in which a court may make orders for the management and maintenance of patient (subject) as follows:-
“Order for custody, management and guardianship.
- The court may make orders -
- For the management of the estate of any
person suffering from mental disorder; and
- For the guardianship of any person suffering
from mental disorder by any near relative or by any other suitable person.
- 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.
- Where upon inquiry it is found that the person to whom
the inquiry relates is suffering from mental disorder to such an extent 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. [own emphasis]
7. I have considered the application before this court, the evidence adduced by the witnesses as well as the documents annexed to the Petition. In order to warrant the appointment of a legal guardian, it must be shown that the subject suffers from a mental disorder which renders him/her incapable of managing his/her own affairs.
8. I have perused the medical report dated 1st October 2024 prepared by
Dr. Violet A Okech Consultant Psychiatrist attached to the Kenyatta
National Hospital in Nairobi. The report indicates that the subject is
an elderly lady in fair condition but was found to be incoherent and
rambling in speech often talking to herself.
9. The Report further confirmed that the subject has suffered a hypertensive
stroke in the year 2021 and that she suffers from moderately severe
dementia. The subject was noted to be incontinent, unable to feed
herself and spends most of her day sleeping. The doctor opined that the
subject “is mentally and physically INCAPABLE of managing her
estate and is INCAPABLE of handling her financial and legal
affairs.”
10. I was able to see the subject via the online platform. She was an elderly
lady lying prone on a sofa. She was mumbling to herself incessantly and
did not answer any questions put to her. It was quite obvious to this
Court that the subject suffers from a mental disability.
11. The other child of the subject namely CHRISTINE KAGIRI as well as
the subject’s husband SIMON KAGIRI GICHANE both testified in the
matter. They confirmed that they were aware of and had no objection
to this current application. Indeed PW5 told the court that the family
had held a meeting and nominated the two applicants to file this
application for legal guardianship.
12. “In the case of RE N. M. K. (2017) eKLR the court in considering what
should be bone in mind when making an order for Guardianship stated
as follows;-
“In considering an application brought under Section 26 and 27 of the Mental Health Act the court is guided by three main factors.
- There must be medical evidence warranting the
determination by the court that the subject
suffers a mental disorder.
- The person to be appointed to be either a Guardian or Manager must be fit to be so appointed.
- The court must be satisfied that the proposed manager will utilize her powers for the benefit and welfare of the subject.
The overriding principles in applying all these factors is that
the welfare and best interest of the subject must be overall
guiding principle. [own emphasis]
13. Finally I find merit in this application. Accordingly this court makes the
following orders:-
- The subject ELIZABETH WANGARI GICHANE is declared to be a person suffering from a mental disorder within the terms of
Section 26 of the Mental Health Act Cap 248, Laws of Kenya.
- The Applicants VERONICA NJOKI KAGIRI and JAMES MAITHO KAGIRI are hereby appointed as joint legal guardians for the subject and managers of the subject’s estate.
- The Applicants as legal Guardians are authorized to operate the
subject’s Bank Account No. 0080101537345, held in the name of Elizabeth Wangari Gichane at Equity Bank Othaya Branch.
(4) No orders on costs.
Dated in Nyeri this 20th day of December 2024