High Court 3919 of 2026

attended. The advocate of the purchaser, the advocate who carried out the attempted conveyance, and the purported purchaser also attended court. The applicant indicated that the subject is said to have attempted to sell Land Parcel No. Nyeri/Lusoi/4XXX. 3. 4. 5. The court proceeded to inquire from the parties on two aspects: a. The mental status of the subject b. Actions detrimental to the interest of the subject. The brother, James Kinyua Muchemi, Identification Number 24698832, confirmed that he led the subject to the advocate’s office, where a deposit of Ksh 200,000/= was paid. The money was deposited in the subject’s newly opened account. the same was withdrawn and shared as follows: a. A sum of Ksh. 105,000=/= was paid out to James Kinyua Muchemi for no services rendered. b. A sum of Ksh 70,000/= was retained by Ms. Mwikali Ruka, the advocate. She indicated this was for stamp duty, but I quickly pointed out to her that under the law, stamp duty is paid by the purchaser. c. A sum of ksh 1,000/= was for lunch consumed by the persons involved in the sale transaction. d. A sum of Ksh 24,000/= was given to the subject, where a sum of Ksh. 10,000/= is said to be in the new account. e. The subject does not understand where the 14,000/= he is supposed to have been given is. Interviewing the applicant, I came to an inevitable conclusion that the applicant is not mentally well and is therefore in need of care and protection. Further, I have perused the medical evidence and concluded that the subject is unable to manage his affairs. The disorder is congenital, hence not expected to heal. Section 26 of the Mental Health Act provides for an order for custody, management, and guardianship of subjects of mental health as follows: 1. 6. The court may make orders: (a) for the management of the estate of any person suffering from a mental disorder; and (b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person. 2. Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person. 3. Whereupon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder. On the other hand, section 27 of the Act provides for the power of the manager in respect of the estate as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3919/eng@2026-03-19 2

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1. Where a manager is appointed under this Part, the court may order that the manager shall have such general or special powers for the management of the estate as the court considers necessary and proper regard being had to the nature of the property whether movable or immovable, of which the estate may consist: Provided thati. ii. 7. a manager so appointed shall not, without the special permission of the court: a. mortgage, charge or transfer by sale, gift, surrender, exchange or otherwise any immovable property of which the estate may consist; b. lease any such property for a term exceeding five years; or c. invest in any securities other than those authorized by section 4 of the Trustee Act (Cap. 167); no manager may invest any funds belonging to the estate of which he is manager in any company or undertaking in which he himself has an interest, nor on the purchase of immovable property under the authority of paragraph (d) of section 4(1) of the Trustee Act without the prior consent of the court. 2. Where the person appointed to be manager of an estate or guardian of a person under this Part is unwilling to act gratuitously, the court may fix such allowance to be paid out of the estate of the person in respect of whom the manager or guardian has been appointed as, in the circumstances of the case, the court may think fit. 3. Any manager appointed under any other law in force before the commencement of this Act shall be deemed to have been appointed under this Act as from such commencement, but shall not be required to file any inventory or statement under subsection (1) of section 33 if he has already done so before such commencement. 4. For the purposes of this Act and the Penal Code (Cap. 63), a manager shall be deemed to be a trustee under any other law for the time being in force. Having seen the state of affairs, it is the duty of this court to make necessary orders as may be necessary to protect the estate of the subject and properties. In respect of properties, section 28 of the Mental Health Act provides as follows; (1) The court may, upon application made to it by petition concerning any matter connected with a person suffering from a mental disorder or with his estate, make such order, subject to this Part, regarding such application as, in the circumstances of the case, the court may think fit. (2) The Minister, the Public Trustee or a manager may take out, as a matter of course, an application in chambers for the determination of any question arising out of the management of any estate in respect of which an order has been made under this Part. 8. However, there are limitations as to the extent to which properties can be applied. A court order must be obtained in respect of immovable properties. None has been requested. Therefore, the parties must hold their horses until the court makes such an order. Having seen the subject and confirmed the state of affairs, I find merit in the application and allow it. I don’t find it necessary to delve into procedural issues for now, given that the subject needs the best possible care. 9. Consequently, the court finds it necessary to make an appointment of two trustees and managers as opposed to the applicant alone. I have seen the wife, but I am not satisfied that she is in a frame of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3919/eng@2026-03-19 3

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mind to be a trustee. The parties were of the view that children should be appointed. In that respect, I therefore appoint the two children of the subject as managers and guardians of the subject. they are: a. Naomi Wanjiku King’ori, Identification Number 42xxxxx36, and b. Ephantus Waweru King’ori, Identification Number 37xxxx36. 10. From the proceedings, it is clear that there was an attempt to fraudulently make a claim on the estate of the subject. James Kinyua Muchemi was the mastermind behind the heist. He was facilitated by the purchaser’s advocate. He took the lion’s share while the advocate took Ksh 70,000/=. The purchaser, therefore, has recourse to the said persons to the exclusion of the applicant. He was not of sound mind when he was attempting to sell the land. Seeing the applicant, there is no doubt that the disability is apparent and cannot be concealed or anyone be mistaken as to his mental status. 11. To the purported purchaser, advocate, and James Kinyua Muchemi cannot benefit from their actions. There is a principle that is operative in these instances that is nullus commodum capere potest de injuria sua propria, that is, no one can benefit from his own wrong. 12. Therefore, I find that the actions proposed to be taken by James Kinyua Muchemi to sell Land Parcel Number Nyeri/Lusoi/4XXX is void. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said; “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 13. Therefore, the said Land Parcel Number Nyeri/Lusoi/4XXX, belonging to the estate of the subject, is deserving of protection. Consequently, it is hereby directed that the Land Registrar, Nyeri County, shall place an inhibition on Land Parcel Number Nyeri/Lusoi/4XXX. 14. Further, the subject has bank accounts. There is hereby imposed a restriction on all his bank accounts, and only the two guardians shall operate them for the benefit of the subject. These orders do not allow the managers to sell the land. These orders shall remain in force until set aside by this court or the death of the subject. Determination 15. I therefore allow the application as follows: a. A declaration is hereby made that the subject is a patient and a person suffering from a mental disorder within the meaning of Section 2 of the Mental Health Act, Cap 248, Laws of Kenya. b. An order is hereby issued that Naomi Wanjiku King’ori, Identification Number 42xxxxx36, and Ephantus Waweru King’ori, Identification Number 37xxxx36, have full custody and management over Charles Kingori Muchemi and his estate as provided under Sections 26, 27, and 28 of the Mental Health Act Cap. 248 Laws of Kenya. c. An order is hereby issued that Naomi Wanjiku King’ori, Identification Number 42xxxxx36, and Ephantus Waweru King’ori, Identification Number 37xxxx36, while acting as Guardians and Managers over the subject herein and his estate, shall exercise and are granted special powers as may become necessary to sue and/or defend a suit for and against the estate of the Subject herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3919/eng@2026-03-19 4

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d. Nevertheless, whereas Naomi Wanjiku King’ori, Identification Number 42xxxxx36, and Ephantus Waweru King’ori, Identification Number 37xxxx36, the Guardians and Managers, have a right to deal with Land Parcel Land Parcel Number Nyeri/Lusoi/4XXX, they shall not sell or alienate the parcel without a Court order before any transaction is carried out. Any disposal shall be null and void. e. The Land Registrar, Nyeri County, shall place an inhibition on Land Parcel Number Nyeri/ Lusoi/4XXX. f. No order as to costs. g. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI, VIRTUALLY ON THIS 19TH DAY OF MARCH, 2026. RULING DELIVERED IN OPEN COURT. KIZITO MAGARE JUDGE In the presence of: Mr. Muthoni for the Interested Party Ms. Mwikali Rika James Kinyua Muchemi Muthoni for Mary Wanjiru Mary Wanjiru Subject present Naomi Wanjiku King’ori Applicant Court Assistant – Michael / Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3919/eng@2026-03-19 5

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