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FAMILY MISCELLANEOUS CASE NO. E031 OF 2025
IN THE MATTER OF SECTION 26 OF THE MENTAL HEALTH ACT (CAP 248 LAWS OF KENYA)
AND
IN THE MATTER OF: FRANCIS MURAYA THEURI (A PERSON SUFFERING FROM MENTAL DISORDER)
AND
IN THE MATTER OF AN APPLICATION BY VIRGINIA NDUTA MURAYA TO BE APPOINTED GUARDIAN AND MANAGER OF THE ESTATE OF FRANCIS MURAYA THEURI
AND
IN THE MATTER OF GUARDIANSHIP OF SUBJECT - FRANCIS MURAYA THEURI
VIRGINIA NDUTA MURAYA………………………..………PETITIONER
JUDGEMENT
Before this Court is the Petition dated 14 th October 2025 by which
the Petitioner VIRGINIA NDUTA MURAYA seeks the following orders:-
THAT a declaration that FRANCIS MURAYA THEURI is suffering from a mental disorder under Section 26 of the Mental Health Act and is incapable of managing his own affairs.
THAT the petitioner VIRGINIA NDUTA MURAYA be appointed as the legal guardian of the subject and Manager of his estate.
Any other orders the Court may deem fit to grant.”
The Petition which was perused upon Sections 26, 27, 28, 29, 32, 33 and 38 of the Mental Health Act Cap 248, Laws of Kenya was supported by the affidavit of even date sworn by the Petitioner. The matter was heard virtually.
The petitioner told the court that she was the wife of the subject Francis Muraya Theuri and that the couple had ten (10) children. She stated that the subject was an elderly gentleman who had recently been diagnosed with dementia. That the Petitioner lives with the subject in their rural home in Laikipia County .
The Petitioner told the court that as a result of his mental illness the subject is not in a position to manage his own affairs. She seeks to be appointed as legal guardian for the subject.
ANALYSIS AND DETERMINATION
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 a 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 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 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]
I have considered the petition before the court, the evidence adduced before the court as well as the documents annexed to the Petition. In order to warrant the appointment of legal guardian it must be shown that the subject suffers from a mental disorder rendering him incapable of managing his own affairs.
Annexed to the Petition is a medical Report dated 5 th June 2025 prepared by DR M. R. MWENDA a Consultant Psychiatrist attached to the Nyeri County Referral Hospital .
The report indicates that upon evaluation the subject was found to be incoherent with poor memory, poor judgment and no insights. The diagnosis reached was ‘ multi-infarct dementia’ The doctor opined that the condition was permanent and stated that the subject was not in a condition to manage his own affairs.
PW2 STEPHEN KIMARI was a son of the subject and the Petitioner. He confirmed that his father suffered from dementia and was not in a position to manage his own affairs. DW2 told the court that he was aware of this petition for Guardianship filed by his mother and had no objection to the same.
I was able to see the subject on the virtual platform. He was an elderly
gentleman seated on a sofa. He was drooling and did not respond when spoken to. It was clear that the subject had no understanding of his surroundings and seemed to be out of touch with reality.
Section 28 of the Mental Health Act provides for the management
of the estate of a person who is found to be mentally incapacitated.
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 sections 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 from a mental disorder.
The person to be appointed to be either a Guardian
or Manage 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]
The Petitioner is the wife of the subject. She lives with him in their
rural home and she is the one who cares for him. I have no doubt that the petitioner is best placed to be appointed as legal guardian for the
subject.
Finally I am satisfied of the merit of this application and in allowing the
same make the following orders:-
“1. The subject FRANCIS MURAYA THEURI 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.
2. The Petitioner VIRGINIA NDUTA MURAYA is hereby appointed as the legal Guardian for the subject and manager of his affairs.
3. No orders on costs.”
Dated in Nyeri this 14 th day of November 2025.
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FAMILY MISCELLANEOUS CASE NO. E031 OF 2025
IN THE MATTER OF SECTION 26 OF THE MENTAL HEALTH ACT (CAP 248 LAWS OF KENYA)
AND
IN THE MATTER OF: FRANCIS MURAYA THEURI (A PERSON SUFFERING FROM MENTAL DISORDER)
AND
IN THE MATTER OF AN APPLICATION BY VIRGINIA NDUTA MURAYA TO BE APPOINTED GUARDIAN AND MANAGER OF THE ESTATE OF FRANCIS MURAYA THEURI
AND
IN THE MATTER OF GUARDIANSHIP OF SUBJECT - FRANCIS MURAYA THEURI
VIRGINIA NDUTA MURAYA………………………..………PETITIONER
JUDGEMENT
Before this Court is the Petition dated 14 th October 2025 by which
the Petitioner VIRGINIA NDUTA MURAYA seeks the following orders:-
THAT a declaration that FRANCIS MURAYA THEURI is suffering from a mental disorder under Section 26 of the Mental Health Act and is incapable of managing his own affairs.
THAT the petitioner VIRGINIA NDUTA MURAYA be appointed as the legal guardian of the subject and Manager of his estate.
Any other orders the Court may deem fit to grant.”
The Petition which was perused upon Sections 26, 27, 28, 29, 32, 33 and 38 of the Mental Health Act Cap 248, Laws of Kenya was supported by the affidavit of even date sworn by the Petitioner. The matter was heard virtually.
The petitioner told the court that she was the wife of the subject Francis Muraya Theuri and that the couple had ten (10) children. She stated that the subject was an elderly gentleman who had recently been diagnosed with dementia. That the Petitioner lives with the subject in their rural home in Laikipia County .
The Petitioner told the court that as a result of his mental illness the subject is not in a position to manage his own affairs. She seeks to be appointed as legal guardian for the subject.
ANALYSIS AND DETERMINATION
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 a 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 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 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]
I have considered the petition before the court, the evidence adduced before the court as well as the documents annexed to the Petition. In order to warrant the appointment of legal guardian it must be shown that the subject suffers from a mental disorder rendering him incapable of managing his own affairs.
Annexed to the Petition is a medical Report dated 5 th June 2025 prepared by DR M. R. MWENDA a Consultant Psychiatrist attached to the Nyeri County Referral Hospital .
The report indicates that upon evaluation the subject was found to be incoherent with poor memory, poor judgment and no insights. The diagnosis reached was ‘ multi-infarct dementia’ The doctor opined that the condition was permanent and stated that the subject was not in a condition to manage his own affairs.
PW2 STEPHEN KIMARI was a son of the subject and the Petitioner. He confirmed that his father suffered from dementia and was not in a position to manage his own affairs. DW2 told the court that he was aware of this petition for Guardianship filed by his mother and had no objection to the same.
I was able to see the subject on the virtual platform. He was an elderly
gentleman seated on a sofa. He was drooling and did not respond when spoken to. It was clear that the subject had no understanding of his surroundings and seemed to be out of touch with reality.
Section 28 of the Mental Health Act provides for the management
of the estate of a person who is found to be mentally incapacitated.
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 sections 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 from a mental disorder.
The person to be appointed to be either a Guardian
or Manage 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]
The Petitioner is the wife of the subject. She lives with him in their
rural home and she is the one who cares for him. I have no doubt that the petitioner is best placed to be appointed as legal guardian for the
subject.
Finally I am satisfied of the merit of this application and in allowing the
same make the following orders:-
“1. The subject FRANCIS MURAYA THEURI 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.
2. The Petitioner VIRGINIA NDUTA MURAYA is hereby appointed as the legal Guardian for the subject and manager of his affairs.
3. No orders on costs.”
Dated in Nyeri this 14 th day of November 2025.
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