Mkm & 3 Others & 3 Others & 3 Others v Jnk

gotten lower than before and recommended for him to have a permanent caregiver. The petitioners referred to annexed PET Scan report dated 25th November, 2024 and MRI report dated 5th December, 2024 prepared by the Radiology Department of The Aga Khan University Hospital. The Petitioners deponed that on 6th July, 2025 Dr. Sylvia Kimathi G Mbugua, who is their father's doctor prepared a detailed medical report confirming the diagnosis of Alzheimer's Dementia, which also gave recommendations on his management. The Petitioners referred to annexed copy of medical report dated 6th July, 2025 prepared by Dr. Sylvia Kimathi G Mingua of The Aga Khan University Hospital. The Petitioners stated that from the Doctor's report it is apparent that the subject does not have adequate mental capacity to take care of his property, medical or legal affairs. 4. This petition was canvassed by way of viva voce evidence on the online platform. The subject JNKM testified as follows; “I am at peace and not in pieces. I am 78 years Old. My spouse EM passaed on last year. I have grown up children. I have grand children. I am good…….but I am happy to be here. I started teaching and retired 2 years ago. I started working in 1950s as a teacher in Machakos. That was a long time ago. I retired as a professor of Philosophy and Religion Studies at University of Nairobi. M is first born, N-2nd born, K 3rd born and K who is with me. I stay in Nairobi West. We have a house their….with the Grace of God I do not have any heart challenges. I am concerned as a parent. The children should act together. They should work together.” 5. PW2 MKM testified that the subject his father and they pray for guardianship to take care of the subject. He has dementia which has affected his memory and well being. PW2 testified that they noticed the condition in 2022 and he has been going for treatment at Aga Khan. He testified further the subject has the following properties namely; · Land in Embu · Parcels of Land in Kajiado,Nairobi and Ukambani · Bank accounts · Property in Nairobi West. 6. PW2 testified that the subject is physically physically okay other than forgetting . He is coherent in speech. 7. PW3 NKM, PW4 KTM and PW5 MWM testified that the subject is their father and they support the petition. 8. The court has exhaustively considered all the material placed before it, the main issue for determination is whether the court should declare the subject as a person suffering from mental illness so as to grant the guardianship and management orders as sought in the petition herein. 9. Section 2 of the Mental Health Act Cap 248 provides that: “A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4039/eng@2026-03-12 2

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The court in Re N M K [2017] eKLR considered what should guide the court when applying Section 26 and 27 of Cap 248. The held as follows: “In considering an application brought under sections 26 and 27 of the Mental Health Act, the Court is guided by three main factors: i. There must be medical evidence warranting the determination by the Court that the Subject suffers from mental disorder; ii. The person to be appointed to be either a Guardian or Manager must be fit to be so appointed; iii. The Court must be satisfied that a proposed Manager will utilize her powers for the benefit and welfare of the Subject.” 10. The Petitioners have sought orders that this court to declare the subject as a person suffering from mental illness and therefore incapable of managing his affairs. The petitioner is also seeking to be appointed as Guardian and Manager of the subject. 11. To merit the above orders the Petitioners must adduce evidence to satisfy the Court firstly that the subject is a person suffering from a mental illness under the Mental Health Act and secondly that the subject is incapable of taking care of his affairs. 12. The Petitioners informed this court that the subject suffers from dementia since 2022. The Petitioners stated that the subject is 78 years old and his health has been on a decline for the last many years and he was formally diagnosed with Alzheimer's Disease on 20th January,2025. The petitioners informed this court that on 6th November, 2024, the neurologist at the Aga Khan University Hospital requested that a PET scan and MRI be done and the results showed that his test score had gotten lower than before and recommended for him to have a permanent caregiver. The petitioners produced PET Scan report dated 25th November, 2024 and MRI report dated 5th December, 2024 prepared by the Radiology Department of The Aga Khan University Hospital. 13. The Petitioners stated that on 6th July, 2025 Dr. Sylvia Kimathi G Mbugua, who is their father's doctor prepared a detailed medical report confirming the diagnosis of Alzheimer's Dementia, which also gave recommendations on his management. The Petitioners produced a copy of medical report dated 6th July, 2025 prepared by Dr. Sylvia Kimathi G Mingua of The Aga Khan University Hospital. 14. To establish whether the subject suffers from a mental illness this court had an opportunity to observe and interview the subject on the online platform and I noted that the subject is in a capacity to know what is happenings within his surroundings. He was also coherent in speech. 15. I have also perused the medical reports on record and they confirm that the subject suffers from Alzheimer’s dementia. Based on the above evidence and material availed to this Court, I find that the subject suffers from Alzheimer’s dementia and the same has affected his ability to make major decisions in respect of his properties and take care of his property. This court therefore finds that the subject is able to articulate himself clearly, he has a mental capacity to appreciate time, space and events.However, this court find that the subject is not able to make complicated decisions in respect of his property without assistance. I therefore find that the subject is suffering from mental illness that has affected his ability of managing his property and take care of his health . The subject needs assistance in making decision in respect of his property and health. 16. In conclusion I make the following orders; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4039/eng@2026-03-12 3

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1. The subject JNKM suffers from mental illness under section 26 of Mental Health Act and the subject is hereby declared as a person suffering from a mental illness as defined in section 2 of the Mental Health Act CAP 248 Laws of Kenya. 2. This court hereby appoints the Petitioners MKM, NMM, KTM and MWM MWW as the Guardians of the subject JNKM 3. This court also appoints the Petitioners MKM, NMM, KTM and MWM MWW MWW as Managers of the affairs and estate of the subject JNKM 4. In accordance with the provisions of Section 33 of the Mental Act, the managers MWW and JMW will furnish an Inventory and annual statement of the subject's estate to this court and the Public Trustee as required by the law. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MARCH, 2026. S. N. RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4039/eng@2026-03-12 4

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