High Court 5459 of 2026

3. iv. That the Applicant will undertake all duties of a legal guardian once appointed in the best interest of J A M. v. That J A M has an active matter in court being Voi Matrimonial Cause No. E004 OF 2024 and it became apparent that he is unstable to give evidence due to his mental state. vi. That the court then made an order for mental assessment to be done which was indeed gone and it was confirmed that J AM has a mental problem. vii. That the Applicant is willing to act in that capacity once appointed. viii. That the Applicant is the brother to J A M and has no other interests adverse to those of J A M. ix. That there is need to have the Applicant appointed as the guardian of J A M who is unable to testify due to his health condition which has affected his mental health. x. That it is in the greater interests of justice that the orders sought herein be granted to give the Applicant the authority to testify in court on behalf of J A M. The application is supported by the affidavit of the Applicant sworn on 7th February 2026 in which he deposed as follows:i. That I am a male adult of sound mind and disposition and the Applicant herein hence competent to swear this affidavit. ii. That my beloved brother one J A M has been suffering from Alzheimer’s and Dementia for the past one year which rendered him to completely have poor testamentary capacity. iii. That the condition has affected his memory as a result of dementia thus making him have poor memory, occasional visual hallucinations, poor attention and concentration therefore incapable of testifying in court. iv. That I have been managing his affairs for sometime now and there is a Matrimonial Cause in Court being Matrimonial Cause No. E004 of 2024. v. That during the middle of the trial it became apparent that J A M is incapable of giving evidence due to his mental condition. vi. That the court then gave an order for him to be examined so that a report be filed in court. vii. That it was confirmed that my brother one J A M is incapable of standing in court and testifying due to his sickness and/or suffering. viii. That due to this fact the matter at Voi Law Courts could not proceed and the court advised to look for a guardianship order. ix. That am advised by my advocate on record which advise I verily believe to be true that a person cannot deal with the property of another who is of unsound mind or is under disability while alive unless through an order of this court appointing them as legal guardian of such a person. x. That I am further advised by my advocate on record which advise I verily believe to be true that this Honorable Court is vested with wide discretionary powers to make the orders sought herein. xi. That as a family we sat down and discussed the issue of our brother and my siblings consent for me to take up the issue in court in the interest of my brother. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5459/eng@2026-04-28 2

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xii. That additionally I managed to procure an introduction letter for my brother from the area chief from where we hailed from. xiii. That it will be in the interest of justice that this Honourable Court grant orders sought herein to facilitate the case of JAM and the protection of his interests in the ongoing court case. xiv. That I will handle and manage the estate in the best interest of J A M. xv. That I swear this affidavit in support of my application to have myself appointed as the legal guardian of J A M and the manager of his estate. 4. The Applicant attached a Medical Report from Coast General Teaching and Referral Hospital dated 9th October 2025 which confirms that the subject has a poor testamentary capacity. 5. The subject’s son and daughter appeared virtually and filed a consent to the grant of the Guardianship to the Applicant. 6. I have carefully considered the Ex Parte Application dated 7th February 2026, the supporting affidavit of HMM, the annexed Medical Report from Coast General Teaching and Referral Hospital dated 9th October 2025, and the consents filed by the subject’s son and daughter. 7. The sole issue for determination is whether the applicant has made out a sufficient case for this court to appoint him as the legal guardian and manager of the estate of JAM under the provisions of the Mental Health Act (Cap 248, Laws of Kenya). 8. The applicable law is the Mental Health Act, which at Section 26 provides that the Court may make an order for the management of the estate of any person suffering from mental disorder, and for the guardianship of such person. 9. Section 27(1)(a) of the same Act empowers the court to appoint a manager of the estate of a person with a mental disorder with powers to do such acts as may be necessary, including the power to mortgage, charge, or transfer by sale or exchange any immovable property forming part of the estate. 10. The court’s jurisdiction under these provisions is exercised in a parents patriae capacity, meaning the court acts as the ultimate guardian of the welfare of persons who are unable to care for themselves, ensuring that any orders made are strictly in the best interests of the person suffering from the mental disorder. 11. The evidence before this court is compelling and largely uncontroverted. The applicant has annexed a Medical Report from the Coast General Teaching and Referral Hospital dated 9th October 2025, which concludes that the subject, J A M, has a poor testamentary capacity. 12. The applicant further deposes, and this is not disputed, that the subject has been suffering from Alzheimer’s and Dementia for the past year, conditions which have led to poor memory, occasional visual hallucinations, poor attention and concentration, rendering him incapable of testifying in court. 13. The applicant has demonstrated that there is an active suit the subject is a party to, and without a guardian and manager, his interests in that litigation and his broader estate remain unprotected. 14. The principle that the court will not hesitate to act where a person is found to be incapable of managing his own affairs due to mental incapacity is firmly established in our jurisprudence. 15. The applicant has stated on oath that he has been managing the subject’s affairs for some time and that he will handle and manage the estate in the subject’s best interest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5459/eng@2026-04-28 3

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16. Furthermore, the subject’s own son and daughter, who are primary beneficiaries of his estate, have appeared virtually before this court and filed their express consent to the applicant’s appointment, which strongly reinforces the suitability of the applicant and the propriety of the orders sought. 17. I find that the applicant, as the brother of the subject, is a proper person to be appointed as both the legal guardian and the manager of the estate. 18. The Law of Succession Act (Cap 160) in its provisions regarding guardianship, and the Mental Health Act, both envision that a family member with no adverse interest is the most suitable appointee. 19. The applicant has declared that he has no other interests adverse to those of his brother, a statement not challenged by any other family member. 20. The need for the orders is urgent and practical. Without these orders, the subject’s pending matrimonial cause cannot proceed, his legal rights in that matter cannot be asserted, and his property, including any immovable property, lies vulnerable without a manager legally empowered to act on his behalf. 21. The powers sought, including the special powers to mortgage, charge, or transfer by sale or exchange any immovable property, are extensive and must be exercised by the manager as an officer of this court. 22. Consequently, while I grant the powers as requested, it is a condition of this order that the manager shall not exercise the special powers to mortgage, charge, or transfer any immovable property without first obtaining further specific orders from this court, which will require the manager to demonstrate that such a transaction is manifestly for the benefit of the subject and not for any other purpose. 23. This safeguard ensures that the protective purpose of the Mental Health Act is not subverted. 24. The upshot of the foregoing analysis is that the application has merit and is hereby allowed. 25. The court makes a formal finding that J A M is a person suffering from a mental disorder within the meaning of Section 2 of the Mental Health Act, by reason of Alzheimer’s and Dementia, rendering him incapable of managing his own affairs. 26. Consequently, the court makes the following final orders as follows; 27. i. That HMM is hereby appointed as the Legal Guardian of the person of J A M with full authority to make decisions regarding his care and well-being, and to sign documents and give releases on his behalf. ii. That the same HMM is hereby appointed as the Manager of the Estate of JAM under Section 27(1)(a) of the Mental Health Act, with all the general powers incidental to the management of an estate. iii. That the Manager is hereby granted special powers to mortgage, charge, or transfer by sale or exchange any immovable property of the subject, provided that any such transaction shall require the prior sanction of this court upon a formal application demonstrating its necessity and benefit to the subject. iv. That the Manager shall, within six months of this date, file in this court a full inventory of the estate of the subject and thereafter shall file annual accounts of his management for the approval of this court. There shall be no order as to costs, given the nature of the application and the best interests principle guiding these proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5459/eng@2026-04-28 4

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28. Orders to issue accordingly. DATED, SIGNED AND DELIVERED THIS 28TH DAY OF APRIL, 2026 IN OPEN COURT AT VOI HIGH COURT. ............................... ASENATH ONGERI JUDGE In the presence of: Court Assistant: Millicent/Eghwa The Applicant: …………………………………. ………………………………………….………...for the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5459/eng@2026-04-28 5

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