High Court 1591 of 2026

2. The Ward is a female adult of Kenyan nationality, identified by National Identity Card Number 35xxxxx06. Born in 1960, she is currently approximately 66 years of age. The record indicates that she is a retired teacher, a profession that implies a history of cognitive engagement and public service. She is a member of the Mwalimu National Sacco Society Limited. 3. The Ward resides in Ruiru, in a family house which she owns. The evidence presented suggests that prior to the onset of her current condition, she was an independent woman who managed her own affairs, acquired property, and participated in cooperative movements. Her current state, however, stands in stark contrast to her past autonomy. 4. The Petitioner, identified by National Identity Card Number 22xxxxxx84, is the only child of the Ward. He is a salesperson by profession, basing his operations along Mombasa Road, Nairobi. Despite maintaining a residence on Mombasa Road, the Petitioner testified that he spends every night at the Ward's house in Ruiru to personally oversee her care and manage her affairs. His testimony paints a picture of a devoted son who has progressively assumed the role of caregiver as his mother's faculties have declined. 5. The medical history of the Ward is both tragic and illustrative of the devastating impact of traumatic brain injury (TBI). The evidence adduced by PW1, Prof. James Kanyoro Kamau, provides a chronological account of the Ward’s decline. In 2012, the Ward suffered a fall in her bathroom, resulting in a broken shoulder which necessitated surgery. Post-2012, approximately 2 years later, she began exhibiting small but noticeable problems with speech. 6. The condition worsened progressively. Initial assessments by a neurologist indicated pathology in the brain requiring attention. Medications were administered, and speech therapy was attempted, but yielded no desirable results. Currently, the Ward has lost the ability to speak (aphasia) and the ability to communicate in writing. Her mobility is severely compromised; she cannot walk and is confined to a bed or chair. 7. Prof. Kamau, a Consultant Psychiatrist with KPMDU Registration Number 0xxx94, testified that he has been attending to the Ward for the last 5 years. His diagnosis is unequivocal: Traumatic Dementia. He explained to the Court that the fall resulted in a non-hemorrhagic brain injury which affected the cognitive centers of the brain, specifically those controlling speech and movement. 8. The prognosis offered by the medical expert is sobering. Prof. Kamau stated: "I cannot say that she can go to 100% of the cognitive reasoning... Once the brain has been affected, the next is dementia. Memory may not necessarily come back". He classified the condition as manageable but not reversible, concluding that "She needs someone to make decisions on her behalf" because her cognitive capabilities to write, express herself, and carry out independent activities have been irreversibly eroded. 9. The Ward's estate, while not exhaustively detailed in a consolidated inventory at this stage, comprises significant assets that require active management. The Petitioner identified the following: a residential house in Ruiru (the current abode of the Ward), and approximately two plots of land, with a third plot pending follow-up as well as membership and shares in Mwalimu National Sacco Society Limited. 10. As a retired teacher, the Ward is presumably entitled to pension benefits, though the immediate concern raised relates to the Sacco shares. 12. The Petitioner testified that the management of these assets has hit a legal impasse. Specifically, the Mwalimu National Sacco requires the Ward's personal instructions or those of a legally appointed manager to transact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1591/eng@2026-02-13 2

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Analysis & Determination 13. The primary legislation governing this application is the Mental Health Act, Chapter 248. While enacted in 1989 and arguably in need of reform to align fully with modern disability rights paradigms, it remains the substantive law guiding guardianship orders. 14. Section 26(1) grants the High Court jurisdiction to make orders for the management of the estate of any person suffering from a mental disorder and for the guardianship of such a person by a near relative or other suitable person. Section 2 defines "mental disorder" broadly to include mental illness, arrested or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind. 15. Section 28 empowers the Court to make orders concerning any matter connected with a person suffering from mental disorder or their estate, providing wide discretion to tailor orders to the specific needs of the case. Section 33 imposes strict accountability mechanisms, requiring the manager to file an inventory and annual accounts with the Court and the Public Trustee. This section creates a fiduciary relationship akin to trusteeship. 16. The Constitution acts as the supreme guide in interpreting the Mental Health Act. Article 28 provides that every person has inherent dignity and the right to have that dignity respected and protected. The Court must ensure that any guardianship order preserves the Ward's dignity, avoiding the dehumanization that historically accompanied "lunacy" proceedings. 17. Article 54 guarantees that a person with any disability is entitled to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning. 18. With respect to Article 57, the Ward, being over 60 years of age, is an older member of society. The State and the family have an obligation to ensure she receives reasonable care and assistance. Under Article 40, the management of the Ward's estate must be geared towards protection, not deprivation. Any interference with her property rights must be lawful and for her benefit. 19. Having set out the facts and the law, I now turn to the substantive issues for determination. The Petitioner must satisfy the Court on four key limbs: (I) That the Ward is suffering from a mental disorder as defined by law; (II) That the disorder renders her incapable of managing her affairs; (III) That the Petitioner is a suitable person to be appointed guardian/manager; (IV) That the specific powers sought over the estate are necessary and appropriate. 20. The first hurdle is evidentiary. The Court must be satisfied, on a balance of probabilities, that the Ward suffers from a mental disorder. 21. The term "mental disorder" in section 2 of Cap 248 is broad. While dementia is a neurocognitive condition, judicial precedent in Kenya has consistently categorized it as a mental disorder for the purposes of the Act because it affects the mind. 23. In In re JRK (Subject) KEHC 12607 (KLR), the Court dealt with a remarkably similar set of facts involving post-traumatic dementia following a road accident. The Court, in this case, held that such a diagnosis, which impairs cognitive function, falls squarely within the ambit of the Act. 24. Similarly, in In re JNG (A Person With Mental Illness) KEHC 8130 (KLR), this Court accepted a diagnosis of Alzheimer's type dementia as sufficient ground for invoking Section 26. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1591/eng@2026-02-13 3

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25. In the instant case, the medical evidence is robust. PW1, a highly qualified psychiatrist, has diagnosed the Ward with Traumatic Dementia. This diagnosis is not based on a cursory examination but on a fiveyear treatment history. The etiology is clear: a fall leading to non-hemorrhagic brain injury, resulting in progressive cognitive decline, aphasia, and immobility. 26. The Court's own observation of the Ward corroborates the medical findings. The Ward was nonresponsive in Court. This direct observation is a vital procedural safeguard, ensuring that orders are not made in respect of persons who are merely physically frail but mentally alert. 27. Accordingly, I find and hold that the Ward is a person suffering from a mental disorder within the meaning of Section 26 of the Mental Health Act. 28. A diagnosis of mental disorder does not, ipso facto, strip a person of legal capacity. The Court must interrogate the functional impact of the disorder. This distinction was elucidated by the Supreme Court in MMG v Tribunal Appointed to Investigate the Conduct of Hon. Justice MMG (Petition 10 (E013) of 2022) [2023] KESC 73 (KLR) (12 September 2023), where the Court noted that capacity is functional—can the person perform the specific duties required of them?. 29. The evidence before me points to total functional incapacity. The Ward cannot speak, she cannot communicate in writing and she is bedridden or chair-bound. Prof. Kamau testified that her cognitive capabilities have slowed and she cannot carry out activities on her own. 30. In the face of such profound impairment, the concept of supported decision-making faces a practical hurdle. Support requires a subject who can communicate a will or preference, however faintly. Where communication channels are severed by brain injury, the Court is compelled to revert to the doctrine of substituted decision-making to protect the Ward's rights. To decline guardianship here would be to abandon the Ward to a legal limbo where her assets are frozen and her care unfunded. 31. Compromised mental capacity and judgment necessitate the appointment of a manager to protect the subject's interests. I find that the Ward is incapable of managing her person and her estate. 32. Section 26(1)(b) allows for guardianship by a near relative or by any other suitable person. The overriding principle is the best interest of the Ward. 33. The Court must assess suitability based on relationship, track record and family consensus. The Petitioner is the only biological child of the Ward. He has been the primary caregiver for over five years, living with the Subject and financing her care. Crucially, the Petitioner has obtained the written consent of the Wards's siblings, JGM and PNR. This effectively neutralizes the risk of intra-family disputes that often plague probate and guardianship matters. 34. The Petitioner's application is not contested. There is no evidence of adverse interest. The proposal to have the siblings act as alternate guardians in the event of the Petitioner's death is a prudent forwardplanning measure that commends the Petitioner's foresight and bona fides. 35. I am satisfied that the Petitioner is a fit and proper person to be appointed. 36. The appointment of a manager is a fiduciary office. Section 33(1) of the Mental Health Act commands the manager to file an inventory of the estate and a statement of debts within six months. Compliance with Section 33 is not optional. Courts are increasingly vigilant in enforcing this requirement to prevent abuse. The Petitioner will be ordered to file a full inventory and annual accounts with the Public Trustee, who acts as the statutory watchdog in these matters. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1591/eng@2026-02-13 4

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37. In exercise of the powers conferred upon this Court by Sections 26, 27, and 28 of the Mental Health Act and Article 159 of the Constitution, I hereby make the following Orders: i. The Ward is hereby adjudged to be a person suffering from a mental disorder within the meaning of Section 26 of the Mental Health Act, and is by reason thereof incapable of managing her person and her estate; ii. The Petitioner is hereby appointed as the legal Guardian of the person of the Ward, with full authority to make decisions regarding her medical treatment, residence, and general welfare; iii. The Petitioner is hereby appointed as the Manager of the estate of the Ward. The Manager is specifically authorized to access, manage, and transact on the Ward's accounts, shares, dividends, and deposits held at Mwalimu National Sacco Society Limited. The Manager is authorized to sign all necessary documents to facilitate the release or utilization of funds, provided always that such funds shall be applied strictly for the maintenance, medical care, and upkeep of the Ward; iv. The Manager shall not sell, charge, mortgage, transfer, or otherwise alienate any immovable property belonging to the Ward, without a specific, separate Order of this Court. v. In the event of the death or incapacitation of the Petitioner, JGM (ID No. 110xxx03) and PNR (ID No. 746xx88) are hereby appointed to act jointly as Guardians and Managers of the Ward and her estate. vi. Pursuant to Section 33 of the Mental Health Act, the Manager is ordered to: vii. (a) File with this Court and the Public Trustee a complete and accurate inventory of the Ward's assets and liabilities within six (6) months of the date of this Ruling. (b) File annual accounts of the management of the estate with the Court and the Public Trustee. The costs of this Petition shall be provided for from the Estate of the Ward. DATED AND DELIVERED AT NAIROBI THIS 13 DAY OF FEBRUARY 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For Petitioner: Ms Chebet h/b Mr Kamunda Court Assistant Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1591/eng@2026-02-13 5

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