High Court 681 of 2026

Trust for an on behalf of the said MGK howsoever and wheresoever held for the purposes of administration, management, maintenance and upkeep of the said assets; vi. That the Guardians/Trustees be empower to do all of the above for the lifetime of MGK 2. The Petition is predicated upon section 26(1) (a) and (b) of the Mental Health Act, Sections 1A, 1B, 3, and 3A of the Civil Procedure Act and relevant provisions of the Constitution, specifically Articles 22, 23, 27, 28, 53, and 54. 3. This case presents a unique and jurisprudentially significant question regarding the intersection of mental health laws, guardianship, and the administration of private family trusts in Kenya. The Petitioners do not merely seek personal guardianship; they seek to intertwine the management of the Ward's estate with the K Family Trust, a legal entity they have established to ensure the perpetual care of the Ward beyond their own lifetimes. 4. The Petition came up for hearing on 4 December 2025 before this Court. The Court received oral evidence from three witnesses: PW1- Dr. Riro Mwita, the Consultant Physician treating the Ward, PW2 - Dr. JWMG, the 2nd Petitioner and mother of the Ward and PW3 - Dr. KKG, the 1st Petitioner and father of the Ward. 5. The Court also admitted various documentary exhibits, including the Petition, Supporting Affidavits, Medical Assessment Reports, and the Trust Deed of the K Family Trust. The Ward 6. The Ward was born in April 1990, making him 35 years old at the time of this judgment. The evidence regarding the Ward's condition is comprehensive. The 2nd Petitioner testified that the Ward is their firstborn son. She deposed that from birth, the parents noticed he did not develop milestones comparable to other children. He was diagnosed with Autism Spectrum Disorder (ASD) in 1992, at the tender age of 1 year. 7. Furthermore, the medical history indicates that at the age of 18, the Ward developed epilepsy, adding a layer of medical complexity to his condition. The Petitioners, both of whom are medical doctors, have provided him with full-time caregiving and medical support throughout his life. The Evidence 8. The core of any application under Section 26 of the Mental Health Act is the medical evidence establishing the mental disorder. PW1, Dr. Riro Mwita, a medical practitioner registered with the Kenya Medical Practitioners and Dentists Council ( Reg No. A5xx5 ), testified before this Court. Dr. Mwita holds a Bachelor of Medicine and Bachelor of Surgery (MBChB) and a Master of Medicine in Internal Medicine (MMed) from the University of Nairobi. 9. Dr. Mwita testified that he has been the treating physician for the Ward since 2010. He presented to the Court a consistent history of the Ward's condition. His key findings, corroborated by his Affidavit sworn on 30 September 2025, are as follows: i. Diagnosis: The Ward suffers from severe Autism Spectrum Disorder (ASD) and epilepsy. ii. Cognitive Impairment: The Ward presents with severe cognitive impairment, characterized by markedly reduced higher mental functions, poor memory, and impaired judgment. iii. Communication: He is unable to communicate clearly or meaningfully. His verbal and nonverbal communication is significantly restricted https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/681/eng@2026-01-30 2

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iv. Dependency: The Ward is incapable of performing activities of daily living such as feeding, dressing, hygiene, and mobility without constant assistance. He requires continuous supervision. v. Treatment: He is currently on combination anticonvulsant therapy to manage seizures. vi. Prognosis: The condition is permanent, with no medical expectation of recovery or improvement in cognitive or functional abilities. He will require lifelong care. 10. The Court has also examined the Medical Assessment Report from Kiambu District Hospital, dated 27 May 2013. This report was prepared by a medical board chaired by Dr. Riro Mwita. It recorded that the Ward has had difficulty developing speech since birth, does not vocalize words, and has impaired speech/dysphasia. It concluded that the major cause of disability was congenital and recommended placement in a special school. 11. A more recent Assessment Form for Mental/Intellectual/Autism Spectrum Disorders from Kiambu Level 5 Hospital, dated 18 August 2023, provides a quantitative analysis of the Ward's disability. 12. This evidence is uncontroverted. It paints a picture of an individual who, though physically present, lacks the mental agency to navigate the legal and financial world. The Court is satisfied that the medical threshold required under the Mental Health Act has been met and exceeded. the K Family Trust 13. The Petitioners, in their wisdom and foresight, have established the K Family Trust to address the mortality risk inherent in personal guardianship. PW3 testified that the Petitioners have tried to put assets to take care of the Ward, since the Ward does not have any context about money and someone has to manage the resources. To that end, the Petitioners have registered a Trust in favor of the Ward. The Declaration of Trust dated 2 August 2023 and registered on 17 November 2023 has been adduced in evidence. 14. Salient features of this Trust Deed relevant to this Petition include: i. The beneficiaries are defined as the Kanyenje Family, explicitly naming the Ward. ii. Clause 4(a)(ii) expressly states that the object is "For the general welfare, maintenance, upkeep and medical expenses of Martin Gakombe... for the duration of his lifetime." iii. The Trust holds shares in a holding company and is empowered to receive additional assets. iv. The First Trustees are the Petitioners. Clause 6 provides for the appointment of Family Trustees and Corporate/Professional Trustees to ensure continuity. v. The Trustees have broad powers to invest, borrow, and apply income for the beneficiaries' medical and general welfare. Analysis & Determination 15. The Constitution fundamentally altered the landscape of human rights, particularly for persons with disabilities. Article 27(4) prohibits discrimination on the ground of disability. Article 53(1)(c) guarantees every child the right to basic nutrition, shelter, and health care. While the Ward is an adult, the principle of parens patriae allows the Court to extend protective principles to vulnerable adults who function at the cognitive level of minors. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/681/eng@2026-01-30 3

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16. Article 54 specifically addresses persons with disabilities, guaranteeing them the right to be treated with dignity and respect. Article 43 guarantees the right to the highest attainable standard of health. 17. The primary legislation governing this petition is the Mental Health Act. It is crucial to note that this Act was significantly amended by the Mental Health (Amendment) Act No. 27 of 2022, which came into force on 11 July 2022. 18. Section 26 of the Act vests this Court with the power to make orders for the custody, management, and guardianship of persons suffering from mental disorders. Section 26(1) provides: The court may make orders— (a) for the management of the estate of any person suffering from mental disorder; and (b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person. 19. Section 28 outlines the powers of the manager, which extend to the management of movable and immovable property, payment of debts, and execution of deeds. 20. Section 27(4) of the Act is particularly relevant to the Petitioners' request regarding the Trust. It provides that managers are deemed trustees under applicable laws. This statutory provision explicitly links the regime of estate management under the Act with the fiduciary duties found in the Trustee Act. 21. The Petitioners seek to use a Trust structure. The Trustees (Perpetual Succession) Act provides for the incorporation of trustees, allowing them to hold property in perpetuity. 22. Traditional guardianship orders often face a succession crisis when the appointed guardian dies or becomes incapacitated. The estate of the person with disability is then left in limbo until a new application is made. 23. A Trust structure, as proposed here, mitigates this risk. the K Family Trust Deed contains explicit provisions for the appointment of successor trustees. By appointing the Registered Trustees as a body corporate, or the Petitioners in their capacity as Trustees, the Court will ensure that the management of the Ward’s care is uninterrupted by the mortality of his parents. 24. In light of the foregoing, I find that the Ward is a person suffering from a mental disorder and intellectual disability to such a degree that he is wholly incapable of managing his estate or his person. He falls squarely within the protection of Section 26 of the Mental Health Act. 25. The Petitioners are the biological parents. They have cared for the Subject for 35 years. There is no evidence of negligence; on the contrary, they have gone to great lengths to secure his future. I find the Petitioners to be eminently suitable to be appointed as Guardians of the Ward. 26. The Petitioners seek to manage the estate through the K Family Trust. I hold that appointing the Registered Trustees of the K Family Trust, who are currently the Petitioners, as the Managers of the Estate is lawful and in the best interests of the Ward. It ensures continuity and leverages the statutory protections of the Trustees (Perpetual Succession) Act. 27. While the Trust structure is efficient, the Court cannot abdicate its supervisory role over the estate of a mentally incapacitated person. Section 33 of the Mental Health Act requires managers to file an inventory and annual accounts. This statutory requirement cannot be waived by a Trust Deed. 28. Therefore, while I will grant the powers sought to the Trustees, I will impose conditions regarding the disposal of immovable property registered in the Wards’ personal name, if any. The Trust's own assets are governed by the Deed, but any asset moved from the Ward’s personal estate to the Trust must be accounted for. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/681/eng@2026-01-30 4

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29. Having considered the Petition, the Affidavits and the evidence, and being satisfied that the Application is meritorious and in the best interest of the Ward, I make the following orders: i. The Ward, MGK (ID No.276xxxxx1), is hereby adjudged to be a person suffering from a mental disorder/intellectual disability within the meaning of Section 26 of the Mental Health Act, rendering him incapable of managing his own affairs; ii. The Petitioners are hereby appointed as the joint guardians of the person of MGK. They shall have the authority to make decisions regarding his residence, medical treatment, and daily care; iii. The registered trustees of the K Family Trust, comprising the Petitioners and their successors in title as defined in the Trust Deed dated 2 August 2023, are hereby appointed as the managers of the estate of the Ward pursuant to section 26(1)(a) and section 28 of the Mental Health Act. iv. The said Managers/Trustees are hereby empowered to: a) Receive, collect, and manage all assets, funds, and properties belonging to the Ward or designated for his benefit; b) Access, operate, and manage any bank accounts held in the name of the Ward or the Trust for the purpose of his maintenance and medical care; c) Transfer any movable assets currently held in the Ward's sole name into the K Family Trust, provided that such assets shall be utilized strictly for the benefit of the beneficiaries as defined in the Trust Deed. v. Strictly in accordance with Section 27 of the Mental Health Act the Managers shall not sell, charge, mortgage, or otherwise alienate any immovable property registered in the personal name of the Ward without a specific court order granting leave to do so; vi. The Managers shall: a) File a complete inventory of the Ward's personal estate with the Public Trustee and the Deputy Registrar within six (6) months of the date of this Order. b) File annual accounts of the administration of the Ward's estate with the Public Trustee as required by Section 33 of the Mental Health Act. vii. The Petitioners shall cause a notice of this appointment to be published in the Kenya Gazette within thirty (30) days of this order, as required by Section 27(4) of the Mental Health Act; viii. These Orders shall remain in force for the lifetime of the Ward, MGK, unless earlier revoked or varied by this Court. The role of Manager shall devolve upon the Successor Trustees of the K Family Trust automatically upon the demise or incapacity of the current Trustees, subject to filing a Notice of Succession with the Court. ix. There be no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JANUARY 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: Petitioners: Ms Mueni h/b Wanjiru Nduati https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/681/eng@2026-01-30 5

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Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/681/eng@2026-01-30 6

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