In re Petition by JNK in respect of RWM (a person suffering from mental disorder)

High Court of Kenya

22 October 2020

AMA.O. MUCHELULE

399 words in judgment

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The bottom line

If a person is mentally incapable, the court can appoint a guardian to manage their affairs, but major property sales still require separate court permission.

What this practically means

Executive summary

The petitioner JNK filed a petition before the High Court seeking a declaration that his wife, the subject RWM, suffers from a mental disorder, and his appointment as guardian and manager of her estate and affairs. The petitioner and the subject are co-directors of a limited liability company. He alleged that the subject suffers from bipolar disorder, rendering her hostile to family members, unable to manage the company or attend directors' meetings, and prone to excessive spending during manic phases. He relied on a medical report dated 27 July 2020 by Dr. Marx M. O. Okonji, which recorded hospital admissions at Avenue Hospital in August and September 2019 and diagnosed bipolar 1 disorder presenting in depressive and manic phases, with the doctor finding she could not function as a director during manic episodes. The petitioner sought, under section 27(1)(a) of the Mental Health Act (Cap. 248), authority to sign documents on her behalf in relation to the company and to mortgage, charge, transfer, sell, gift, surrender or exchange immovable property of her estate. The court allowed the petition, determined that the subject has a mental disorder and is incapable of managing her affairs, appointed the petitioner as guardian and manager, and authorised him to sign documents on her behalf regarding the company. However, the court declined to grant a blanket power over immovable property, reserving any special permission for such dealings to a further application to the court. The judgment was delivered electronically at Nairobi on 22 October 2020 by A.O. Muchelule J. No costs order was made.

Key legal issues

Whether the subject suffers from a mental disorder incapacitating her from managing her affairs

Holding

The court found the subject has a mental disorder and is unable and incapable of managing her affairs, based on the medical report of Dr. Okonji diagnosing bipolar 1 disorder with manic phases involving excessive spending and inability to function as a director.

Reasoning

The petitioner relied on a medical report dated 27 July 2020 by Dr. Marx M. O. Okonji, which recorded hospital admissions in August and September 2019 and diagnosed bipolar 1 disorder presenting in depressive and manic phases. The doctor found that during manic phases the subject excessively spent beyond her means and could not function as a director. On this uncontroverted medical evidence the court was satisfied that the statutory threshold of mental disorder and incapacity was met.

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Whether the petitioner should be appointed guardian and manager and authorised to sign documents for the company

Holding

The court appointed the petitioner as guardian and manager of the estate and affairs and authorised him to sign documents on the subject's behalf regarding the company, but reserved dealings with specified estate property for further court permission.

Reasoning

The petitioner sought appointment as guardian and manager under section 27(1)(a) of the Mental Health Act (Cap. 248), together with authority to sign documents for the company and to deal with immovable property. The court granted the appointment and the signing authority, but declined to give a blanket power over immovable property, instead requiring any special permission for mortgage, charge, sale, gift, surrender or exchange of specified property to be sought by application to the court.

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Legal principles established

A person found to suffer from a mental disorder and incapable of managing her affairs may have a guardian and manager appointed over her estate under the Mental Health Act, with dealings in specified estate property requiring further court permission.

Court orders

1.Determination that the subject has a mental disorder and is unable and incapable of managing her affairs
2.Appointment of the petitioner as guardian and manager of the subject's estate and affairs
3.Authorisation for the petitioner to sign any documents on the subject's behalf in regard to the management of the affairs of the company
4.Any special permission to mortgage, charge, sell, gift, surrender or exchange any specified part of the estate shall be sought by application to the court

Authorities

Legislation

Mental Health Act (Cap. 248)section 27(1)(a)

Jurisdiction invoked: Mental Health Act (Cap. 248), section 27(1)(a)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Petition by JNK in respect of RWM (a person suffering from mental disorder)", Case Analysis (2020). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.