High Court 19286 of 2025

2. The application is premised on the grounds set out on its face and reiterated in the joint Supporting Affidavit sworn by NWM and JWM (the Applicants herein) on even date wherein they have deponed that they are biological daughters of the Patient/Subject, MMM, who is aged 77 years old. This has been confirmed by their respective Identity Cards and KRA Pins, being ID No.213XXXX and KRA Pin No.A0176XXXX for NWM and ID Card No.2166XXXX and KRD Pin No.A00566XXXX for JWM. The Applicants have also deponed that their father, MMM was born in the year 1947 and is a holder of Identity Card No.334XXXX and KRS Pin No.A0032XXXX. 3. According to the Applicants, sometimes in the year 2019, their gather (hereinafter referred to as “the subject”) was diagnosed with Parkinson Decease and Alsheimer Dementia for which he was however able to live an independent life while carrying on with his various businesses and construction projects without any difficulty until the Covid-19 Pandemic lockdown which came with lockdown isolation measures put in place by the Government in the year 2020. This made him change his active social life, restrained his movements and he remained isolated for months with his live-in worker as his only regular contact, hence became more of company then a caregiver. That there was a gradual decline on his health status which was noted form the year 2021 and in 2022, he progressively reduced talking and his speech became incoherent. He fell in December, 2025 and suffered a fracture of his hip and he stopped walking independently. 4. The Applicants have averred and testified that they have been responsible for taking care of the Subject, by ensuring he gets the best care, attends all his doctor’s appointments as scheduled in the hope that his health will improve and he improves since their mother is deceased. 5. Further, the Applicants have deponed that Doctor Peter Matero of Aga Khan Hospital informed them that their father (the Subject) is suffering from a mental illness, which according to medical report dated 9th August, 2024, marked as “JWN – 7” is described as Parkinson Disease hence he is unable to recall or comprehend anything on his health, life or affairs. That as a consequence, the Subject is incapable of managing and administering his property, business matters, legal affairs of a similar kind. 6. It is the Applicant’s case that due to their father’s mental health status, they are best placed to be jointly appointed as Representatives and or Managers in respect of all his affairs and assets. They have confirmed that they are five (5) siblings in their family and identified the other three (3) as ANM of ID No.1124XXXX and KRA Pin. No.A0023XXXX, JKM of Passport No.A263XXXX and KRA Pin No.A00430XXXX (copies thereof marked as “JWM – 7, 8 and 9). 7. The Applicants have also listed their father’s properties whose value they have deponed is in excess of Kshs.30,000,000/= as: a. Kiambaa/Kihara/XXXX (annexed herewith and marked JWM-10 is copy of Title. b. Kiambaa/Kihara/XXXX (annexed herewith and marked JWM-11 is copy of Title. c. Kiambu/Munyu/XXXX (annexed herewith and marked JWM-12 is copy of Title. d. Kiambu/Mumyu/XXXX (annexed herewith and marked JWM-13 is copy of Title. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19286/eng@2025-06-10 2

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e. Plot No.B1-XXXX Kayole Site and Service Station Scheme (annexed herewith and marked JWM-14 is copy of letter dated 4/3/2005 from Nairobi City Council) 8. According to the Applicant, most of the properties have developments thereon which need to be maintained, monitored in terms of rent collections and payment f land rates, water and electricity. Others have crops that need to be attended to and workers paid salaries. Then there is dependents that need to be looked after, just like their father did when he was in good health. 9. The Applicants confirm that there has never been any previous application filed and presented in regard to their father’s mental capability. 10. The Applicants have produced and or attached their copies of ID Cards and KRA Pin (JWM-1,2,3 and 4), the Subject’s ID Card and KRA Pin (JWN-5 and 6), a medical report dated 9th August, 2024 by Doctor Peter Mutero of Aga Khan Hospital in respect of MMM (JWM-7), ID Number and KRA Pins of their siblings (JWN-8, 9, 10) and copies of Title deeds for the listed properties (JWN-11, 12, 13 and 14) and a letter dated 4th March, 2005 from Nairobi City Council for Plot No.B1-XXXX Kayole Site and Service Scheme to confirm their application as bonafide. Analysis and Determination. 11. To determine the validity and merits of the Applicants’ application dated 7th November, 2024, I have carefully read through the joint Supporting Affidavit sworn by the Applicants and examined the annexures attached thereto. The law on applications such as the present one is provided for under Section 26 of Mental Health Act, Cap 248 Laws of Kenya which gives the court judicial power over persons and estates of persons who are shown to be suffering from mental disorder and/or any incapacity. Section 26 of the Act provides as follows:“ 26. Application for administration 1. 2. 3. 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. 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. A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19286/eng@2025-06-10 3

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12. 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 The court is also guided by the decision in the case of Re N M K [2017] eKLR wherein the court considered and set out the principles that should guide the court when applying the provisions of Section 26 and 27 of Cap 248. In this case the court held:“ In considering an application brought under sections 26 and 27 of the Mental Health Act, the Court is guided by three main factors: i. There must be medical evidence warranting the determination by the Court that the Subject suffers from mental disorder; ii. The person to be appointed to be either a Guardian or Manager must be fit to be so appointed; iii. The Court must be satisfied that a proposed Manager will utilize her powers for the benefit and welfare of the Subject.” 13. In this case, having considered the Notice of Motion application and the joint Supporting Affidavit together with the annextures attached thereto, it is noted from the medical report from Aga Khan Hospital dated 9th August, 2024 that the Subject MMM was diagnosed as suffering from alsheimer dementia and nigrosome 1 signal atrophy of substantial nigra suggestive of Parkinson disease, which Doctor Peter Matero has classified as mental illness within the meaning of the Mental Health Act, Cap 248 of the Laws of Kenya. From this medical evidence attached, the court finds the same sufficient to confirm that the Subject, MMM suffers from mental disability and is therefore incapable of managing and administering his properties, business matters, legal transactions and or any other dealings of a similar kind and hence requires assistance in every aspect of his life. 14. In the circumstances, the Notice of Motion application dated 7th November, 2024 be and is hereby allowed with the following orders issuing:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19286/eng@2025-06-10 4

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a. That the subject MMM be and is hereby declared as a person suffering from mental disorder resulting from a stroke pursuant to the Mental Health Act, Cap 248 Laws of Kenya. b. That the Petitioners are hereby appointed as guardians of MMM and they are hereby granted custody, care and management of the subject. c. That the applicants NWM and JWM are hereby appointed as managers of MMM’S estate which includes any such description of movable and immovable property, money, debts and legacies, power to execute, sign all deeds and instruments relating to or evidencing the title or right to any property or giving a right to receive any money or goods and to proceed to take over and/or institute any litigation and/or claims and also include only such property as has been originally in the possession or under the control of any person but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 10TH DAY OF JUNE , 2025 D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19286/eng@2025-06-10 5

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