Enmn & 1 other v Mwm

extinguished her mental and physical capacity to manage her personal affairs, make independent decisions, or administer her proprietary interests. 3. The specific reliefs sought by the Petitioners are delineated in the pleadings as follows: a. A formal judicial declaration adjudging MWW to be a person suffering from a mental disorder, specifically Alzheimer's Dementia, within the contemplation of Section 26 of the Mental Health Act; b. An order appointing the Petitioners as the legal Guardians in respect of the Ward; c. An order appointing the Petitioners as the Managers of the estate of the Ward, granting them lawful access and valid instructional authority over all properties, bank accounts, and funds held in the name of the Ward for the general management of her affairs; d. Specific authorization and sanction for the Petitioners, acting in their capacity as Guardians and Managers, to attend before the relevant Land Control Boards, obtain all necessary statutory consents, and proceed to sub-divide and sell the agricultural property known as Title Number Laikipia/Kinamba Block x/126 (Mwenje), or any resultant sub-divisions thereof. Furthermore, the Petitioners seek authority to execute, sign, give, and receive all acts or deeds in relation to the said property, and to commence or defend any action in the Courts of Kenya for the protection of the said property; e. An order that the costs pertaining to the Petition be borne by the estate of the Ward. 4. In matters of adult guardianship and the management of estates under the Mental Health Act, the immediate family members of the Ward are deemed interested parties. The record demonstrates that the Ward has several adult children. The Petitioners secured formal, sworn written consents from four of their siblings: FNM, CMM, AWM, and LWM. These siblings expressly consented to the Petitioners assuming the roles of guardians and estate managers. 5. However, one sibling, JMM (hereinafter "the Respondent"), emerged as a non-consenting party. The Petitioners averred that the Respondent withheld his consent without justifiable reason and refused to participate in the collaborative management of the Ward's estate. Electronic evidence presented to the Court, duly certified under section 106B of the Evidence Act, indicates that on 10 December 2024, the Petitioner explicitly communicated with the Respondent via text message, outlining the urgency of the mother's need for administrators and requesting his cooperation. The Respondent failed to act upon this communication. 6. Given the lack of consent, it was procedurally imperative that the Respondent be formally served with the court pleadings. The Petitioners engaged the services of a licensed court process server, Mr. Edward Maina Wachira to effect personal service upon JMM. 7. The Affidavit of Service, sworn by Mr. Wachira on 3 October 2025 under Order 5 Rule 15 of the Civil Procedure Rules, 2010, provides a meticulous account of the service process. On 24 September 2025, Mr. Wachira proceeded to the Respondent's known place of employment, [Particulars withheld] Primary School, located in [Particulars withheld] Village, Laikipia West Sub-County. The process server met with the school's headteacher, Mr. Ebon, who positively identified the Respondent. At approximately 9:27 a.m., in the headteacher's office, the process server introduced himself and personally handed the Summons to Witness and the Petition to the Respondent. The Affidavit notes that the Respondent accepted the service and retained the copies of the pleadings but deliberately declined to append his signature to the original copy of the Summons to Witness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 2

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8. The procedural law governing service is explicit. Under Order 5 Rule 15 of the Civil Procedure Rules, 2010, where a serving officer delivers or tenders a copy of the summons to the defendant personally, the refusal of the defendant to sign the acknowledgment does not invalidate the service. The service is deemed complete and legally effective provided the serving officer swears a corroborating Affidavit detailing the time, place, and manner of service, and the identity of the individual who pointed out the defendant. The Court has reviewed the Affidavit of Service and finds that it rigidly adheres to all statutory requirements. Consequently, the Court determines that JMM was lawfully, properly, and personally served on 24 September 2025. 9. Despite this lawful service and explicit warning, the Respondent wilfully failed to enter an appearance, file a Replying Affidavit, lodge a Notice of Preliminary Objection, or attend any of the scheduled hearings, including the substantive hearings on 29 October 2025, 3 December 2025, and 28 January 2026. 10. Therefore, this Court determines that the Respondent, JMM, was afforded every reasonable opportunity to present his objections. Having consciously elected to ignore the judicial process, he is deemed to have forfeited his right to challenge the proceedings. The Court shall proceed to evaluate and determine the Petition on its merits, relying on the uncontroverted evidence adduced by the Petitioners. The Petition 11. The Court has undertaken a comprehensive evaluation of the evidentiary record, which comprises the verified pleadings, the documentary annexures, the expert medical reports, and the oral testimonies provided under oath during the hearings. 12. The Petitioners rely fundamentally on their joint Supporting Affidavit sworn on 25 March 2025. The documentary evidence establishes their locus standi; they are the biological daughters of the Ward, evidenced by the annexed Certificates of Birth. The family unit originally comprised the Ward, her late husband JMG, and their adult children. 13. The Petitioners averred that the Ward, previously an active and independent small-scale farmer managing her agricultural interests in Laikipia, began exhibiting a progressive deterioration in her mental and physical capabilities. The onset of these symptoms reportedly coincided with the period following the demise of her husband. 14. During the hearing conducted on 28 January 2026, the Court had the opportunity to hear directly from the Petitioners. JWM, painted a grim picture of the Ward's cognitive decline. She testified that the family first noted anomalies in the Ward's behaviour when she began executing routine tasks in a highly abnormal manner. The Ward would consume a full meal and immediately thereafter complain of starvation, possessing no memory of having eaten. She would frequently attempt to cook the same meal multiple times in quick succession. 15. ENM corroborated her sister's testimony, emphasizing the total loss of the Ward's executive functions. She testified that the Ward can no longer care for her own basic hygiene, routinely forgetting to bathe or change her clothing. Tragically, the cognitive erosion has advanced to the point where the Ward can no longer recognize her own biological children. 16. The logistical and financial burdens of managing this condition have proven overwhelming. The Ward suffers from a constellation of health issues, including arthritis and a severe heart condition, requiring continuous pharmacological management. Due to her profound disorientation, she is entirely incapable of residing independently at her rural domicile in Laikipia. Consequently, she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 3

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currently resides with her daughters, shuttling between Nairobi and Nakuru, depending on her fiuctuating moods and the availability of care. The Petitioners testified that they have been compelled to employ a full-time, outsourced caregiver to tend to the Ward during the day while the Petitioners are at work. The cumulative costs of specialized medication, outsourced caregiving, and daily maintenance have exhausted the Petitioners' personal financial resources. 17. To address this financial crisis, the Petitioners seek the authority to liquidate a portion of the Ward's dormant agricultural property, identified as Laikipia/kinamba Block x/126 (Mwenje). The Petitioners averred that this property is currently unutilized by the family, has been invaded by unauthorized third-party squatters, and was the Ward of a malicious arson attack in March 2025. They argue that protecting the property requires legal authority they do not currently possess, and that converting the illiquid asset into liquid capital is the only viable mechanism to fund their mother's escalating medical and caregiving needs. 18. In petitions concerning adult guardianship, the consensus of the immediate family operates as a highly persuasive factor, assisting the Court in determining whether the proposed guardians are acting in good faith. To this end, the Petitioners furnished the Court with sworn consent forms from the majority of the Ward's surviving children. 19. The overwhelming consensus among the siblings indicates a unified family recognition of the Ward's incapacity and a shared trust in the Petitioners' ability to execute the fiduciary duties of guardianship and estate management. 20. The Petitioners relied on the expert assessments of Dr. Joseph W. Njau, a duly qualified Consultant Psychiatrist (MBChB, M.Med Psych) based in Nakuru. Dr. Njau conducted two separate psychiatric evaluations of the Ward, providing the Court with a longitudinal view of her cognitive trajectory. 21. At the Initial Psychiatric Assessment on 15 August 2024, Dr. Njau examined the Ward at his clinic in Nakuru when she was 80 years old. She was accompanied by ENM. The complaints presented were progressive memory impairment, the inability to locate household utensils after use, forgetting conversations and appointments, and the inability to recall the names of her children. 22. Upon conducting a formal mental status examination, Dr. Njau diagnosed the Ward with Alzheimer's Dementia. He described this condition as a neurodegenerative disorder characterized by multiple cognitive defects, including a global impairment of intellect. The Ward exhibited profound disorientation in time; she was unable to state the day of the week, the date, the month, or the year. She could not recall the names of her children or their birth order. Dr. Njau concluded that the Ward was suffering from a progressive, age-related neurological disorder for which there is no specific curative treatment. He classified the disorder at that time as moderate but emphasized that the condition was irreversible and highly likely to deteriorate. Crucially, he rendered a clinical opinion that she was wholly incompetent to manage her property or undertake any financial transactions, recommending the immediate appointment of an administrator. 23. The subsequent Psychiatric Assessment was conducted on 17 January 2026. Dr. Njau re-evaluated the Ward on 17 January 2026. His subsequent written report, dated 21 January 2026, confirmed a catastrophic deterioration in her cognitive faculties. The Alzheimer's Dementia had progressed from moderate to severe. The mental status assessment revealed that the Ward remained entirely disoriented in time and place, unable to recall the name of her residential area or the names of the daughters accompanying her. Her short-term memory was non-existent; she could not remember what she had eaten for breakfast that very morning, nor could she repeat the names of three basic objects after a delay of a few minutes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 4

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24. Furthermore, her concentration and executive functions were severely impaired. She was incapable of performing simple mental arithmetic or counting backwards. Her capacity for abstract thinking had vanished; she was unable to articulate the difference between a chair and a table, nor could she interpret a single simple proverb. Dr. Njau concluded his 2026 report by stating that the Ward experiences severe cognitive decline characterized by significant memory loss and personality changes, including an inability to dress herself appropriately. He reiterated that she is currently not capable of functioning independently, requires a significantly greater level of constant care, and that her prognosis indicates inevitable further deterioration. 25. The Court conducted an informal, direct examination of the Ward, MWW, on 29 October 2025. This interaction provided the Court with an invaluable opportunity to independently assess her functional capacity and orientation. 26. During the interaction, the Ward presented as visibly frail and in considerable physical distress, repeatedly complaining to the Court about severe aches and pains in her body and legs, noting that she often completely loses the ability to walk. Her responses to the Court's inquiries revealed a profound and tragic cognitive disconnect from reality. 27. When asked about her residence, the Ward made disjointed and contradictory statements. She initially asserted that she lived in Kajiado, but moments later claimed to reside in Ngarua, Laikipia. When queried about her living arrangements, she confidently stated that she lived with her parents. Astoundingly, she identified her own biological daughter, Jacinta Wanjiru, as her mother, and named "Kanyore hinga" as her father who lives at home. 28. While the Ward retained a fragmented, episodic awareness of her distant past—correctly recalling her birth year (1944) and the name of her husband-she was entirely disoriented regarding her present circumstances, the identity of her caregivers, and the nature of the judicial proceedings surrounding her. This direct judicial observation served as powerful, undeniable corroboration of Dr. Njau's psychiatric findings regarding her global intellectual impairment and severe disorientation. Analysis & Determination 29. The primary statutory anchor governing this Petition is the Mental Health Act. 30. Section 2 of the Act defines a "person with mental illness" as an individual diagnosed by a qualified mental health practitioner to be suffering from a mental illness. Section 26(1) of the Act expressly empowers the High Court to make orders for the management of the estate and the guardianship of a person suffering from a mental disorder, upon a formal application made by a supporter, a representative, or a near relative. 31. However, the mere existence of a clinical medical diagnosis does not automatically translate into a legal finding of mental incapacity. The Supreme Court definitively clarified this critical distinction in the landmark, binding precedent 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. The Supreme Court observed that while the Act defines mental illness, it remains silent on the resultant effect of that illness on a person's legal capacity. Drawing extensively on comparative jurisprudence, particularly the principles embedded in section 1 and section 2 of the United Kingdom's Mental Capacity Act 2005, the Supreme Court established a rigorous, mandatory two-stage test that courts must apply when determining mental incapacity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 5

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32. First, the Court must first establish, through competent medical evidence, that the Ward suffers from an illness, condition, or injury that physically or neurologically affects the manner in which the brain or mind works. It requires proof of an impairment or disturbance in the functioning of the mind. 33. Even if the diagnostic threshold is met, the Court must proceed to the second stage. The Court must assess whether the diagnosed illness or condition affects the person to such an extent that they are functionally unable to perform their duties, understand relevant information, retain that information, weigh the information to make a decision, or communicate their decision to the requisite standard. 34. It is only when both the diagnostic and functional thresholds are satisfied that a court may lawfully intervene to restrict a person's legal capacity. The Court must apply this binding two-stage test to the instant case. 35. The Petitioners have adduced the expert psychiatric reports of Dr. Joseph Njau. Dr. Njau, a Consultant Psychiatrist, conducted exhaustive clinical evaluations of the Ward in August 2024 and January 2026. He conclusively diagnosed her with Alzheimer's Dementia. Alzheimer's disease is widely recognized in medical science as a progressive, irreversible neurodegenerative disorder that causes brain cells to waste away and die, fundamentally altering and impairing the functioning of the brain. The Court finds that the medical evidence is unimpeachable and squarely satisfies the first prong of the Gitumbi test. The diagnostic threshold is met. 36. The critical inquiry is whether the Alzheimer's Dementia has functionally incapacitated the Ward. The evidence before the Court demonstrates a total collapse of the Ward's executive functions and cognitive abilities. 37. The January 2026 evaluation revealed that the Ward is profoundly disoriented in time and space. She cannot recall the names of the children who physically accompany her to the clinic. She lacks the shortterm memory required to recall a meal eaten hour prior. Her cognitive impairment is so severe that she cannot perform rudimentary mental arithmetic, interpret basic abstract concepts, or distinguish between common household objects. Dr. Njau explicitly concluded that she is currently not capable of functioning independently. 38. This medical conclusion was independently and tragically corroborated by the Court's own observation on 29 October 2025. The Ward's assertion to the Court that her daughter is her mother, her contradictory statements regarding her place of residence, and her total lack of awareness regarding the nature of the judicial proceedings prove beyond a balance of probabilities that she is functionally incapable of understanding information or making decisions regarding her health, her welfare, or her property. She cannot comprehend the nature of a contract, the implications of selling land, or the management of financial accounts. 39. Having established the Ward's legal incapacity, the Court must determine the appropriate legal framework to safeguard the Ward's welfare. 40. The paramount, overriding consideration in appointing a guardian and manager is the Best Interests principle. While the concept of best interests is most frequently litigated in family law concerning the welfare of children, the Courts has firmly imported this principle into adult guardianship under the Act. The Court must evaluate the suitability of the proposed guardians, their historical relationship with the Ward, and their capacity to execute the heavy fiduciary duties required. 41. The Petitioners are the Ward's biological daughters. The uncontroverted evidence before this Court is that they have proactively stepped into the breach following their mother's cognitive collapse. They have uprooted her from isolation in Laikipia, provided her with shelter in their own homes in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 6

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Nairobi and Nakuru, facilitated her psychiatric evaluations with Dr. Njau, and personally borne the substantial financial burden of her pharmacological treatments and the employment of an outsourced, full-time caregiver. Their actions demonstrate a profound, tangible commitment to their mother's welfare. Furthermore, four of the Ward's other adult children have executed Affidavits expressing total confidence in the Petitioners' integrity and suitability to assume these legal roles. 42. The Court must always remain fiercely vigilant against guardianship applications driven by ulterior, mercenary motives—such as the desire of impatient heirs to prematurely distribute or liquidate an elderly parent's assets under the guise of protection. 43. The Court has scrutinized the present Petition through a cautionary lens. The Petitioners' motivations are demonstrably rooted in the urgent necessity to liquidate dormant, targeted assets solely to fund the Ward's escalating, continuous, and highly expensive care requirements. 44. The sole dissenting voice, the sibling JMM, offered no alternative care plan for the mother. Despite being lawfully served, he failed to appear in Court to challenge the Petitioners' suitability, failed to offer financial assistance for the mother's care, and failed to provide any evidence of ulterior motives. As noted earlier, his recalcitrant silence cannot outweigh the demonstrably beneficial, burdensome, and loving actions undertaken by the Petitioners. 45. The final, and perhaps most legally complex, issue pertains to the Petitioners' specific prayer for judicial authorization to attend Land Control Boards, subdivide, and subsequently sell the Ward's agricultural property, legally described as Title Number Laikipia/Kinamba Block x/126 (Mwenje). 46. The appointment of a Manager over the estate of an incapacitated person creates a profound, strict fiduciary relationship. The Manager does not become the owner of the property; rather, they act as a trustee, holding and administering the property strictly for the maintenance, welfare, and benefit of the incapacitated Ward. Section 27 of the Mental Health Act delineates the general powers of the Manager, which include collecting debts and managing movable assets. 47. However, the law places a rigorous, impenetrable safeguard against the arbitrary depletion of a vulnerable adult's estate regarding immovable property. Under Section 28, a Manager cannot independently sell, mortgage, charge, or otherwise dispose of the Ward's land. The alienation of immovable property absolutely requires the express, prior sanction of the Court. 48. The evidence before the Court confirms that the Ward requires specialized, around-the-clock medical care, psychiatric monitoring, and pharmacological management. The Petitioners testified that their personal financial resources are entirely depleted due to these ongoing costs. In contrast, the property in Laikipia is currently a dormant asset. It is unutilized by the Ward, generates no income, and is highly vulnerable to invasion and destruction, having already suffered an arson attack by unauthorized third parties in March 2025. 49. This Court is satisfied that the liquidation of the whole or a portion of this specific property is a matter of absolute, pressing necessity. The proceeds are required to raise the capital necessary to secure the Ward's ongoing medical treatment, safe housing, and fundamental human dignity. Denying this prayer would result in the Ward suffering severe medical neglect and physical degradation, thereby defeating the protective purpose of the Mental Health Act and violating her constitutional right to health under Article 43. 50. However, to ensure rigorous fiduciary oversight, prevent the commingling of funds, and protect the estate from potential mismanagement, this Court will impose strict post-appointment reporting conditions upon the Managers. In direct alignment with Section 33 of the Act, and mirroring the protective jurisprudence established by the Court in In re JKN (Ward) KEHC 12720 and In re TKN https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 7

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eKLR , the Managers must submit a comprehensive inventory of the estate and render true, audited accounts of all expenditures derived from the sale of the property. 51. Consequently, I make the following orders: a. It is hereby declared and adjudged that the Ward, MWW is a person suffering from a mental disorder, specifically Severe Alzheimer's Dementia, within the meaning of section 26 of the Mental Health Act. The Court finds that this disorder has completely vitiated her functional capacity, rendering her entirely incapable of managing her personal affairs, her medical decisions, and her proprietary estate. b. The Petitioners are hereby jointly appointed as the legal Guardians of the person of the Ward. They are granted full legal authority to make all decisions regarding her daily welfare, her place of residence, and her ongoing medical and psychiatric healthcare, acting at all times in her best interests. c. The Petitioners are hereby jointly appointed as the Managers of the Estate of the Ward pursuant to section 28 of the Mental Health Act. d. The Managers are hereby granted the legal authority to access, manage, and issue lawful instructions with respect to all bank accounts, financial funds, and movable properties held in the sole name of the Ward. This authority is granted for the exclusive purpose of facilitating her maintenance, upkeep, and medical care. e. Pursuant to the requirements of sections 27 and 28 of the Mental Health Act, this Court hereby grants the Managers the specific judicial sanction and authority to subdivide and/or sell the agricultural property Title Number Laikipia/Kinamba Block 1/126 (Mwenje), or any resultant subdivisions thereof. f. The Managers shall hold all financial proceeds derived from the sale of the aforementioned property in a strict constructive trust. These funds must be utilized exclusively for the medical, physical, and general welfare of the Ward. Pursuant to section 33 of the Mental Health Act, the Managers are hereby ordered to file in this Court, and simultaneously deliver to the Public Trustee, a full, true, and accurate inventory of the Ward's estate. Furthermore, they must file a comprehensive Statement of Account detailing the proceeds of any sale and all subsequent medical and welfare expenditures within six (6) months of the date of this Judgment. g. In mandatory compliance with section 27(4) of the Mental Health Act, the Managers shall cause a formal notice of their appointment to be published in the Kenya Gazette within thirty (30) days of the extraction of this Order. h. The costs of this Petition and the incidental legal fees 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 Gichuki h/b Nancy Waweru Court Assistant Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3577/eng@2026-03-18 8

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