High Court 19567 of 2025

4. The Petitioners thus sought to be jointly appointed as the managers of the Ward and to be vested with permanent custody, guardianship, care, and control of the subject, and for the Court to issue any other order it may deem fit. 5. The petitioners also sought, vide a chamber summons dated 26th June 2025, to be appointed as interim managers of the Ward and for the estate to be vested in them on an interim basis pending the hearing and determination of the Petition. 6. The Petition and the application were supported by the affidavit of KAS, sworn on 3rd June 2025. The affidavit had annexures. Since the affidavit bespeaks what I have already stated, I shall not rehash the same here. 7. The matter was placed before the judge on 4th July 2025. Upon perusing the application, the judge gave directions to wit that the patient be examined by a psychiatrist at Port Reitz Hospital, for a report of the chief of the area where the family resides to be availed, confirming details of the next of kin of the Ward, and for the matter to be heard on 22nd July 2025 at Mombasa Law Courts. The Court did not find it worthwhile, or to amount to the best use of the court's time, to consider the Chamber Summons first, and opted to hear the application and the main Petition together. 8. The chief of Maweni Location filed a report dated 14th July 2025. Dr Said S Mohamed prepared a report dated 8th July 2025, vide which he confirmed that the patient has Alzheimer's disease, which had impacted his cognitive abilities. 9. The matter was heard on 22nd and 31st July 2025. I will briefly outline the evidence of the witnesses below. 10. The first witness was KAS. She is a resident of Nyali. She resides near the City Mall with her family. Ms Salim is a retired pharmacist. She testified that the Ward was her husband and that they had lived together for 39 years. It was her testimony that the Ward had Alzheimer's disease, which is an irreversible neurodegenerative disease. She testified that it was necessary to safeguard the ward's interests, as he has a case in court that should be attended to. 11. The next Witness was Fatuma Mwanrajabu Abdalla. Fatuma lives with her parents at Nyali. She is the caregiver for the Ward. She corroborated what her mother had stated. The family became aware of his illness in 2017 when the decline in his mental acuity began. The diagnosis of Alzheimer's disease was made by Dr. Jazar, who is a medical doctor based in Nairobi. His finding was that the Ward had earlyonset Alzheimer's disease. 12. Fatuma testified that she and her 2 siblings had all agreed that the guardians ad litem and managers be appointed in respect of their father and that it would be in his best interest for that to be done. 13. Dr. Salim Said Mohamed was the third witness. Dr. Mohamed is a psychiatrist currently working at Port Reitz Hospital. He examined the Ward and wrote the medical report. His finding was that the Ward had dementia of the Alzheimer's type, which had impaired his cognitive ability. The Ward depended on others for his daily functions and needed care, attention, and affection. 14. The last Witness was AK. Ms A is the second daughter of the Ward. She corroborated what her mother and sister had stated. 15. The court had the occasion to observe the Ward in open court. The Ward could hardly talk. He had to be attended by his own family throughout the Court session. It was apparent to me that the Ward was uncomfortable in unfamiliar surroundings and needed the calming influence of his family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19567/eng@2025-08-08 2

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16. 17. I have considered the pleadings, the documentary evidence, and the oral testimonies of the witnesses. In my view, the issues I need to determine are:1. Whether the patient suffers from mental illness? and 2. If so, what order should be issued? Appointment of a manager of the estate of a person with mental illness is made under section 27 of the Mental Health Act, as amended in 2022. A manager’s duty is to safeguard the property of the Ward. The appointment of a Manager must be published in the Kenya Gazette (section 27(4) of the said Act). Any person with probable cause may object to the appointment within 14 days of the publication of the notice. Section 28 (4) of the said Act provides that:“ a manager shall perform the manager’s duty under this Act responsibly, taking into account the best interests of the estate of the person suffering from mental illness.” 18. Under the Mental Health Act, the application for administration may be made by a “supporter” or “representative” of the person with mental illness, in that order. Although the Petitioners are not “supporters” of the Ward, as they weren’t appointed in writing, it is my finding that, being the Ward’s wife and children, they are his “representatives” within the meaning of the Act and, therefore, have the locus to file the instant petition. 19. In re CWN (a person suffering from mental disorders) [2022]eKLR the Court stated that:“ The Petitioners have sought to be declared as guardians and managers of the patient. To merit the above orders the petitioners must adduce evidence sufficient to satisfy the Court, firstly that the patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the patient is incapable of managing her own affairs.” 20. I would add that the third test is whether the application is in the patient's best interest. People with mental illnesses have diminished capacities to manage their affairs, analogous to those of children. Therefore, the court must ensure the application was filed in the patient's interest. Additionally, the court's orders must be designed to achieve this goal. 20. The evidence adduced shows that Dr KAA has Alzheimer’s disease. The disease was first noticed in 2017. Dr Said diagnosed his condition as early-onset Alzheimer's disease. Given the findings of the said doctor and his present situation, it is my view that the Ward suffers from a mental illness. 20. The Petitioners averred that the Ward has “various assets, liabilities and responsibilities which require to be undertaken and which, in his own condition, he may not be able to undertake.” They further averred that he “has been sued in Milimani ELC No. 595 of 2013: Sadrudin Tarmohamed Mulji Govani v KAA and ELC 1468 of 2013 Sanjeet K Shah & Anor v Sadrudin T. M Govani, 3rd Party KAA, will be mentioned on the 7th July 2025 for directions as to the hearing of the suits.” Having been a medical professional of note, I am convinced, based on the available evidence, that the Ward has substantial asset holdings. Treatment of mental illnesses is expensive. Being ill, the Ward may not appreciate the need for treatment, nor be able to manage the treatment regime. The appointment of the Petitioners as the Ward's guardians ad litem and manager will enable them to access his funds, allowing them to pay for nursing care and medication. The petitioners will also be able to defend the Ward’s interest in Milimani ELC No. 595 of 2013: Sadrudin Tarmohamed Mulji Govani v KAA and ELC 1468 of 2013 Sanjeet K Shah & Anor v Sadrudin T. M Govani, 3rd Party KAA. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19567/eng@2025-08-08 3

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20. The Petitioners’ testimony and the medical professional’s report show that the patient cannot manage his affairs. Therefore, it will be in his best interest to appoint managers to administer his estate. The managers/guardians ad litem will ensure that he receives the most appropriate care possible, that her estate is not wasted or lost, and that her interests are protected. 20. I am satisfied, based on the evidence adduced, that the Ward has a mental illness. There is, therefore, a case for the appointment of the Petitioners as the guardian ad litem of the Ward, Dr KAA, and the manager of his estate. In the circumstances, I order as follows: - 20. 1. The Petitioners, KAS, FAK, and AKA, be and are hereby appointed as the guardians ad litem of the Ward, Dr KAA, and also the managers of his estate; 2. KAS, FAK, and AKA, as the Managers of the estate of the Ward and his guardians ad litem, are hereby authorized to take over and defend the interests of the Ward in Milimani ELC No. 595 of 2013: Sadrudin Tarmohamed Mulji Govani v KAA and ELC 1468 of 2013 Sanjeet K Shah & Anor v Sadrudin T. M Govani, 3rd Party KAA 3. KAS, FAK, and AKA shall jointly manage the Ward’s estate, but shall not have the power to sell, charge, or otherwise alienate his immovable property or properties without the leave of the Court; 4. Pursuant to section 27(4) of the Mental Health Act, the appointment of the managers/ guardians ad litem shall be published in the Kenya Gazette; 5. The managers/guardians ad litem shall file the inventory and statement of account of the estate of the patient within six months from the date of their appointment; and 6. I make no orders as to costs. Orders accordingly. DATED AND SIGNED AT MOMBASA, THIS 8TH DAY OF AUGUST, 2025. DELIVERED VIRTUALLY VIA MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Ms Muiru, for the Petitioners; and Arthur - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19567/eng@2025-08-08 4

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