In re PMC (Family Miscellaneous Application E013 of 2023) [2024] KEHC 4093 (KLR) (8 April 2024) (Ruling) Neutral citation: [2024] KEHC 4093 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIVASHA FAMILY MISCELLANEOUS APPLICATION E013 OF 2023 GL NZIOKA, J APRIL 8, 2024 IN THE MATTER OF APPLICAITOIN OF GUARDIAN IN RESPECT OF PMC IN THE MATTER OF SWM ........................................................................................................... APPLICANT RULING 1. 2. The subject Exparte Notice of Motion application herein is dated 28th September 2023. It is supported by an affidavit sworn by the Applicant of the even dates. The applicant is seeking for orders that:a. Spent b. The applicant be appointed as the guardian of the subject, one PMC c. That, the applicant be appointed as a signatory to the account of the subject. d. In the alternative, the court do order that all rent payable to subject be paid to the applicant. e. The Hon. Court grant any other order it deems appropriate. The application is based on the grounds thereto and the affidavit sworn by the applicant. She avers that, the subject started displaying memory loss, and fiared tempers without provocation in the year 2021. That the year 2022, he was hospitalized at Kenyatta University Referral and Research Hospital and diagnosed with the following ailments a. A benign prostrate hyperplasis b. Cataract c. Diabetic Neuropathy and d. Hypertensive Heart Disease with HFPEF 62% https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4093/eng@2024-04-08 1
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3. In a nutshell the final diagnosis was dementia. That as a result he is unable to carry out his daily duties and obligations due to acute diabetes that has caused him partial blindness. That he is a sole signatory to his accounts but it is difficult to access and operate the account. 4. The application was also supported by an affidavit of JCM described as the first born son of the subject. He deposed to the same facts as stated by the mother. Annexed to the affidavit (albeit not marked) is a medical report dated 2nd August 2023, from Kenyatta University Teaching, Referral and Research Hospital. Upon considering the application, the court ordered that, an independent medical report from a Government or Public hospital be availed alongside, evidence of the bank account, alleged mpesa account, and consent from other family members, authorizing or consenting to the appointment of the applicant as the guardian of the subject. Subsequently the applicant filed a further supporting affidavit providing the following documents a. Marriage certificate (certified copy) b. A medical document from department of Health Services at Nakuru County. c. A cheque leave showing account in the name of the subject No. 05300000xxxx held at Family Bank Limited. d. A cheque leave showing account No. 11480999xxxx held at Co-operative Bank Ltd, in the name of the subject. e. A letter from the Senior Assistant Chief of Lake View Sub-location showing the family members of the subject. f. Consent to the grant of the prayers in the application from MWM, ENM, JCMe, SCM and JWM, all of them being the children of the Subject, and g. A deed plan No. (Particulars withheld) In addition, the children of the subject appeared in court physical and virtually and consented to the grant of the orders as stated. I have considered the application in the light of the materials before the court and I note that, there is no confirmation of the bank account held at co-operative. I note that the firm of Waigwa Ngunjiri & Co. Advocates sought for authentication of the court order. It is not clear on the record whether that was done. I direct that, the Hon. Deputy Registrar do attend to the same. 5. Be that, as it were the letter dated 15th November 2023 from Nakuru County Hospital states that the subject exhibits signs and symptoms of dementia and may not be possible to carry out transaction without assistance. In that case, the prayer for appointment of the applicant as a guardian for the subject is supported. However, this court cannot order she be made a signatory to the bank account as prayed. The court can only order for her to gain access and authority to operate the account on the grant of order as a guardian. 6. It suffices to note that, unless and until Co-operative Bank Ltd, confirms existence of the subjects account there, the applicant has no authority to transact on that account. The resultant orders are that:a. The applicant SWM be and is hereby appointed as the guardian of PMC . b. The authority granted shall enable her to manage the afiairs of the subject which includes the mandate to operate his bank account c. Subject to confirmation of the existence thereof. d. The rent payable by the tenants shall be paid in the bank account for accountability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4093/eng@2024-04-08 2
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7. All other prayers sought for are not allowed. It is so ordered. DATED, DELIVERED AND SIGNED THIS 8TH DAY OF APRIL 2024 GRACE L. NZIOKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4093/eng@2024-04-08 3
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