Gww v Bwk

Act and the Constitution. Specifically, the Petitioner seeks to be formally appointed as the legal guardian of the person, and the manager of the estate, of her husband, BWK. 2. The fundamental premise of the Petition is that the Ward, owing to advanced age, a series of severe cerebrovascular accidents (strokes), and a formal medical diagnosis of senile dementia, has suffered a progressive, irreversible, and profound decline in his mental and physical capacity. The Petitioner contends that this debilitating condition has rendered the Ward entirely non-verbal, bedridden, and legally incapacitated, thereby making him wholly incapable of managing his personal welfare, his medical treatment, and his proprietary affairs. 3. The jurisdiction of this Court in such sensitive matters is primarily drawn from Section 26 of the Mental Health Act, which expressly empowers the Court to make extensive orders for the management of the estate and the guardianship of a person suffering from a mental disorder by a near relative or any other suitable person. This statutory framework is further anchored by the Constitution, particularly Article 57, which imposes a positive and non-derogable obligation on both the State and the family unit to ensure that older persons receive reasonable care, necessary assistance, and are permitted to live their twilight years in dignity and free from any form of abuse or neglect. 4. The application initially proceeded for hearing on 5 February 2026 before this Court. During the proceedings, the Court heard the oral testimony of the Petitioner, alongside the testimonies of the Ward's two adult daughters, EWW and MWW. The Court also comprehensively reviewed the documentary, financial, and medical evidence tendered in support of the Petition. The Supplementary Affidavit duly sworn and filed on 5 February 2026, completes the evidentiary record for this Court's consideration. 5. The Petitioner and the Ward share a deeply rooted and long-standing matrimonial union. The documentary evidence, specifically the Certificate of Marriage annexed to the Petitioner's Supporting Affidavit, confirms that the parties solemnized their marriage under the African Christian Marriage and Divorce Act (Cap. 151) (now repealed) over half a century ago, on 2 June 1973, at [Particulars Withheld] Ngeca. This union has been blessed with two adult daughters: EWW and MWW. Both daughters have filed Supporting Affidavits sworn on 18 December 2025 and provided oral testimony during the hearing, categorically consenting to the Petition and expressing their full support for their mother's appointment as the guardian and manager of their father's estate 6. Furthermore, the Petitioner averred that the local administrative authorities have been fully apprised of the Ward's deteriorating condition. A letter from the Assistant Chief of Ngeca Sub-Location, dated 11 April 2025, was annexed to the pleadings, verifying the Ward's residence, confirming his diagnosis of senile dementia, listing his dependents, and supporting the family's necessity to appoint a legal representative to manage his bank account. 7. The evidentiary record demonstrates that the Ward, now approximately 77 years old, enjoyed relatively sound health until the year 2023, when he suffered his first cerebrovascular accident (stroke). This initial medical event marked the beginning of a steady and irreversible decline in his general health. The Petitioner deposes that the Ward suffered a subsequent stroke in 2024, which further debilitated his physical and cognitive faculties. 8. The critical turning point occurred in October 2025, when the Ward suffered a severe, third stroke. As a direct consequence of this most recent cerebrovascular accident, the Ward is presently confined entirely to a wheelchair, suffering from profound right-side hemiplegia (paralysis), and is completely non-verbal. This physical incapacitation is heavily compounded by a severe cognitive decline. To substantiate these claims, the Petitioner provided 3 distinct medical reports from different healthcare facilities, which paint a consistent and grim picture of the Ward's health. There is a medical report https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3549/eng@2026-03-18 2

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dated 10 April 2025 from Tigoni Level 4 Hospital which presents a diagnosis of senile dementia. The Report from PCEA Kikuyu Hospital dated 25 November 2025 observes that the Ward is non-verbal, wheelchair-bound with right-sided hemiplegia. The Report dated 29 January 2026 from Nazareth Hospital was prepared at a time when the Ward was admitted for treatment. 9. The Ward’s condition deteriorated so severely in late 2025 that he required emergency hospitalization. The Supplementary Affidavit of the Petitioner, corroborated by her oral testimony, confirms that the Ward was admitted to Nazareth Hospital on 14 December 2025. He was initially placed in the Intensive Care Unit (ICU) due to his critical state, which included a blood infection and compromised kidney function, before being transitioned to the general ward where he is currently receiving palliative care. 10. The financial strain resulting from the Ward's specialized medical and palliative care is immense and unsustainable under the current legal constraints. The Petitioner deposes that the Ward requires a specialized diet, daily medical supplies, disposable adult diapers, continuous physiotherapy, and the round-the-clock support of two dedicated care assistants. The Petitioner, who is herself elderly and a retiree, is physically incapable of lifting or transferring the Ward from his bed to his wheelchair, necessitating this paid assistance. 11. At the time of the oral hearing on 5 February 2026, the Petitioner testified that the accrued medical bill at Nazareth Hospital stood at nearly Kshs 400,000.00, an amount that must be settled in full upon discharge. The Petitioner further testified that she has entirely exhausted her personal savings in a desperate bid to manage the Ward's condition over the past 3 years. 12. Despite this liquidity crisis, the Ward is not destitute. He is the registered proprietor of an estate, the inventory of which has been disclosed. Due to his physical paralysis and profound cognitive impairment, the Ward cannot physically sign cheques, authorize transfers, operate his bank account, or make any sound financial decisions. The Petitioner, therefore, seeks urgent access to the ABSA Bank account to forestall absolute destitution, settle the mounting hospital bills at Nazareth Hospital, and guarantee the uninterrupted continuation of the Ward's necessary palliative and nursing care. Analysis & Determination 13. The threshold for state intervention in the personal autonomy and proprietary rights of an adult citizen is exceptionally high. The presumption of sound mind and legal capacity is deeply ingrained in our jurisprudence. Under section 26 of the Mental Health Act, a court must be unequivocally satisfied, based on cogent medical evidence, that the Ward is suffering from a mental disorder to the extent of being incapable of managing their own affairs. 14. The jurisprudence governing the assessment of mental capacity in Kenya was comprehensively delineated by the Supreme Court in the landmark decision of Petition No. 10 (E013) of 2022, Hon. Lady Justice Mary Muthoni Gitumbi vs. The Tribunal Appointed to investigate the conduct of Hon. Lady Justice Mary Muthoni Gitumbi. In that matter, the Supreme Court noted that the Mental Health Act does not strictly define "mental incapacity," nor does it dictate the automatic resultant effect of a mental illness diagnosis on a person's legal capacity. Consequently, the Supreme Court established a rigorous two-stage functional test to determine mental incapacity: i. Stage One: There must be empirical proof of an illness or injury that affects the manner in which the brain or mind works. ii. Stage Two: It must be established that the illness or injury affects the person to such an extent that they are unable to perform their duties, make decisions, understand information, retain information, use the information to make a decision, or communicate a decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3549/eng@2026-03-18 3

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15. Mental incapacity does not automatically follow a mere diagnosis of mental illness; the functional impairment must be explicitly proven on a case-by-case basis. The evidentiary burden of proof rests firmly on the Petitioner to tender conclusive medical evidence that satisfies this stringent standard. 16. Applying this test to the factual matrix before this Court, the medical evidence is overwhelming and uncontroverted. Regarding the first limb of the Gitumbi test, the medical reports confirm that the Ward has suffered severe structural brain injury due to recurrent cerebrovascular accidents (strokes). The CT scan findings reported by P.C.E.A. Kikuyu Hospital reveal a left middle cerebral artery territory infarct. This physical trauma to the brain is compounded by a neurodegenerative condition, formally diagnosed by Tigoni Level 4 Hospital as senile dementia. Therefore, the existence of an injury and illness affecting the brain is conclusively established. 17. Regarding the second limb of the test—the functional impact of the illness—the evidence demonstrates a catastrophic loss of capacity. Senile dementia is characterized by a progressive, irreversible cognitive decline. Dr. Wandahi's report explicitly notes severe memory loss, poor orientation in time, place, and person, and incomprehensible speech. Dr. Wafula's report confirms the Ward is non-verbal and paralyzed on his right side. The Ward is currently receiving palliative care at Nazareth Hospital, completely bedridden and unstable. He is fundamentally incapable of understanding information, retaining it, evaluating it to make a decision, or communicating any decision regarding his health, his finances, or his legal rights. 18. Guided by the overwhelming medical reports, the oral testimony of the Petitioner, and the binding precedents cited above, this Court determines that B.W.K. suffers from a mental illness—specifically, senile dementia exacerbated by multiple debilitating strokes—that severely and irreversibly impairs his executive functions. He is completely devoid of the legal and mental capacity to manage himself, his property, or his affairs. Consequently, he is adjudged a person suffering from mental illness within the meaning of section 26 of the Mental Health Act. 19. Having adjudged the Ward as lacking legal capacity, the Court must determine who is best placed to assume the mantle of substitute decision-maker. Section 26(1)(b) of the Act allows the Court to make orders for the guardianship of a person suffering from a mental disorder by any "near relative or by any other suitable person". 20. The guiding star in all guardianship and estate management applications is the best interests and welfare of the Ward. The High Court established a foundational three-pronged test for assessing the suitability of a proposed guardian/manager in the leading case of In re NMK (Ward) (Miscellaneous Application 73 of 2017) KEHC 921 (KLR). For a court to grant an order of guardianship and management, the following criteria must be strictly met: a. Medical Evidence: There must be medical evidence warranting the determination that the Ward suffers from a mental disorder. b. Fitness: The person to be appointed must be fit to act as a guardian or manager. c. Welfare: The Court must be satisfied that the proposed manager will utilize their powers strictly for the benefit and welfare of the Ward. 21. The Court must closely scrutinize the Petitioner's relationship with the Ward, her historical conduct, and her underlying motives for bringing this Petition. 22. The courts must remain highly vigilant against the risks of elder abuse and financial exploitation, which are rampant vulnerabilities faced by persons with mental disabilities. This vigilance is illustrated in cases where courts have rejected applications due to ulterior motives. For instance, in In re NMK, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3549/eng@2026-03-18 4

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the court dismissed a mother's application to manage her mentally disordered daughter's estate upon discovering that the applicant was combative and her true motivation was to dispose of the Ward's land to dictate inheritance, rather than to cater to the Ward's needs. Similarly, in In re DGG eKLR, the Court dismissed a son's petition to manage his father's (who suffered from Alzheimer's) estate because the son had omitted key family members from his affidavit and harboured ulterior motives to transfer the Ward's property into a private company. 23. In sharp contrast to the self-serving applicants in In re NMK and In re DGG, the present Petitioner approaches this Court with clean hands and out of absolute necessity. 24. The Petitioner has been married to the Ward for over 50 years. Throughout the Ward's multi-year, tragic decline in health following his initial stroke in 2023, she has remained by his side as his primary caregiver. Her Petition is evidently not driven by a nefarious desire to distribute or alienate the Ward's assets; rather, it is compelled by the immediate crisis of mounting medical bills, the necessity of palliative care, and the logistical impossibility of providing 24-hour physical care without financial access to the Ward's own resources. 25. Furthermore, the application enjoys the unanimous and unequivocal consent of the immediate family. The Ward's only children, EWW and MWW, have both sworn Affidavits in support of the Petition and testified orally before this Court, unreservedly consenting to their mother's appointment. In matters of adult guardianship, documented family consensus is a strong indicator that the proposed arrangement is transparent and aligns with the Ward's welfare. 26. Evaluating this totality of evidence, the Court finds that the Petitioner has demonstrated unwavering dedication to the Ward's care over a prolonged period of severe illness. She is a fit, proper, and suitable person. The Court is wholly satisfied that she will utilize the powers of guardianship and management exclusively for the physical, emotional, and medical benefit of B.W.K., perfectly aligning with the "best interests" principle. 27. The true measure of a society's adherence to the rule of law and the sanctity of constitutional human rights is found in how it treats its most vulnerable, incapacitated members. The Ward, having lived a full life and maintained a half-century marriage, now faces the twilight of his years under the heavy, silent shadow of senile dementia and severe physical paralysis. He is wholly dependent on the compassion of his family and the protective, parens patriae arm of the law. 28. The Court finds merit in the Petition dated 18 December 2025. Accordingly, to safeguard the life, health, dignity, and proprietary estate of the Ward, this Court issues the following orders: a. The Ward, B.W.K, is hereby adjudged to be a person suffering from mental illness within the meaning of section 26 of the Mental Health Act, and is inherently and legally incapable of managing his personal affairs and his estate. b. The Petitioner is hereby appointed as the legal guardian of the person of the Ward. She is granted full custody, care, and control over his person, and is legally authorized to make all necessary medical, health care, and welfare decisions on his behalf. c. The Petitioner is hereby appointed as the Manager of the Estate of the Ward pursuant to sections 27 and 28 of the Mental Health Act, to manage the estate strictly for the Ward's maintenance and benefit. d. The Petitioner, in her capacity as the Manager of the Estate, is hereby authorized to access, operate, and make withdrawals from the Ward’s bank account, being ABSA Bank Kenya Limited, Moi Avenue Branch, Account Number 20xxxxxxx2. The funds therein shall be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3549/eng@2026-03-18 5

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utilized strictly and exclusively for the payment of the Ward's medical bills (including the current Nazareth Hospital bill), specialized diet, nursing care, purchase of medical supplies, and general upkeep. For the avoidance of doubt, the powers granted herein do not include the authority to sell, lease, charge, transfer, or otherwise alienate the Ward's immovable property, specifically the parcel of land Title No. Limuru/Ngecha/8x4. Any disposition of the said immovable property shall require a separate, formal application and the prior written permission of this Court, as mandated by section 28 of the Mental Health Act. e. Pursuant to section 29 of the Mental Health Act, the Petitioner shall file a comprehensive inventory of the Ward’s estate with this Court and the Public Trustee within six (6) months of the date of this Judgment. Furthermore, the Petitioner shall render an annual true and just account of the expenditure of the funds withdrawn from the Ward's bank account to the Court and the Public Trustee. e. The costs shall be borne by the Estate of the Ward. DATED AND DELIVERED AT NAIROBI THIS 18 DAY OF MARCH 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For Petitioner: Ms Mwendwa h/b Mr Gichigo Court Assistant Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3549/eng@2026-03-18 6

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