Ank & 1 other v Jmm & 1 other

2. v. This Honourable Court be pleased to order that the estate of the said Mr. MM do refund to the first petitioner the monies spent on his maintenance since June, 2017. vi. This Honourable Court be pleased to order that Mr. MM incomes from the under mentioned properties be paid to the 1st petitioner to be applied for his maintenance and also that of his wife: a. Mombasa/ Block XXXX/XX- b. commercial building at Maua jointly owned with JB. c. a residential house let to a tenant in Maua town. d. two shops at Kangeta shopping centre e. miraa plantation f. the tea plantation g. Muringene property jointly owned by Mr. MM and Mr. JB. h. Muringene market restaurant jointly owned by Mr. M'lmaingi M'laaru; The subject is married to Tabitha Kanini Maina and they have the following children: 1. ANK, the first born, the first daughter and the first petitioner; 2. The late EM, the first son and the second born who died on 23rd February, 2017; 3. JKM, the second daughter and second petitioner herein; 4. JM, the fourth born and the second son; 5. EM; the fifth born and the third son; and 6. MM, the sixth born and the fourth son From a perusal of the proceedings in this file, the several applications and rulings, the issues in the petition have not been settled for the last 8 years. This Court on 18th July 2025 directed that the first issue for determination is whether the subject M’Maingi M’Laaru is a person suffering from a mental illness. The Court directed that the issue be canvassed by way of Viva Voce evidence. 3. Pw2 ANK, the first petitioner, testified that she is a daughter of the subject. She is a lecturer at Sultan University in Sweden. She holds a dual Kenyan and Swedish citizenship. She resides in Sweden where she has been for the last 21 years. She testified that the subject who is now 85 years was married to Tabitha Kanini who died in 2023 and have 6 children. While in Sweden in 2017 one Julius Baario, a friend of the subject informed her that the Subject was not well and she came home and confirmed he was forgetting things. She then filed this petition and proposes that Jerusha be appointed the guardian and manager of the Subject’s Property. She suggested Jerusha as as she (Ann) does not stay in Kenya. 4. On being cross-examined by Tangichi for respondent she confirmed the subject was moved from Mutaheri Kangema in 2017 to Ongata Rongai where he stays with Jerusha in a rented house. She confirmed she does not have any problem with any of the children visiting him at Rongai. 5. Pw3 JK the second petitioner testified that she is a daughter of the subject. She stays in ongata Rongai with the subject in a rental house. Her house has three bedrooms. She has been staying with the Subject https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5788/eng@2026-04-30 2

page 2 of 7

since 2017 when they brought him to Nairobi for treatment. He stopped being able to walk in 2020 and is currently on a wheelchair for mobility. He is unable to speak and cannot feed on his own. His food is blended. They have the services of 24-Hour nurse service from Texas Company where they pay Kenya shilling 45,000 for the service. He also undergoes Chemotherapy at Texas Center and when there is need for admission he is often admitted at Aga Khan hospital Nairobi. On being cross examined by Thangicia for respondent she confirmed she has been staying with the subject since 2017 a total of 8 years. She also confirmed that she was appointed as interim guardian in 2017. She stated she collects approximately Kenya shilling 231,000 per month from the assets of the Subject. She however did not indicate her average expenses on the Subject per month. She also has only filed an account in court occasionally. She did confirm that she has no objection to share the responsibility with her siblings. 6. On cross-examination by Thuku she stated that she has no objection to Martin and Eliud having access to the subject though they have never come to see him. She informed Court that she is 62 years old, married and with adult children who do not stay with her. Her husband Gabriel Mwenda stays in Meru. 7. Pw 2 Eliud M’Irunga Maingi testified that the subject is his father. He stays at the ancestral farm in Meru. He stays in the same compound with the Subject but denied that they neglected him. He last saw him in 2019 in Nairobi. He proposes that the responsibility of taking care of him be given to both of them. He used to have business but it's collapsed and now he is a peasant farmer. 8. Pw3 MM Maingi testified that before 2017 he was staying with the Subject, his mother and wife and children in the Subject's house. He was looking after the Subject and was assisted by his siblings. He denied that they neglected the Subject. In 2017 the Subject was taken to Ongata Rongai and he has never seen him since. He however prays that they be allowed to take care of the Subject as a family. 9. On cross-examination by Kamau Kuria Counsel for the Petitioner, he stated that he had not seen any medical reports on the Subject nor was he aware that the Subject lost ability to care for himself. He also confirmed that it is not true that he is interested in the properties of the Subject. On Cross examination by Thuku for 2nd Respondent, he testified that Subject was being taken care of by the sons until when Jerusha obtained the orders. He however confirmed that in 2017 the deceased started forgetting things. He also informed the Court that the Subject had transferred the house to him for which he has a title deed. 10. Pw 4 Justus Mwangi Maingi the fourth born son testified that the subject, who is his father, had been sick for long. In 2014 he developed asthma, dementia where he would be taken to Aga Khan and Nairobi hospital in Nairobi. In 2017 the children agreed that Jerusha, who is based in Nairobi, would take care of the Subject. The subject then was taken by Jerusha who has been taking care of him. They also agreed that all should have access to the Subject. During Cross examination he informed Court that he visits the subject regularly at Jerusha’s house in Rongai and also sends money for his upkeep. 11. Pw1 Cecilia Mutianya testified that she is a wife of Ezekiel Mutianya who was a son of the Subject but who died in March 2017. The death of Ezekiel affected the subject who started ailing. In 2017 Jerusha took him and obtained an order. Since then she has not seen the Subject. She stated that since then Jerusha has been collecting money and uses it on herself instead of involving all the children. 12. On cross examination by Kamau Kuria for the Petitioner she stated that there is a Land case in Meru over Subject's land. She also confirmed that although the court ordered they visit the subject, she did not avail herself to that opportunity. 13. Pw3 Dr Simeon Ochanda Muya a Consultant Physician at Kenyatta National Hospital testified that he had been seeking the subject since 2024 when he was admitted at Kenyatta National Hospital. He https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5788/eng@2026-04-30 3

page 3 of 7

then saw him in November 2024. He is unable to talk, has a fracture of the left thigh, is hypertensive, asthmatic and has cancer of the prostate. He has severe by with loss of speech. they manage these conditions together with Professor Amayo who has filed his report. He produced his report filed in November 2024 as exhibit. On cross the examination by Thuku he confirmed the subject is not able to recognize people and does not respond to questions. 14. Section 4 of the Mental Health Act defines a person with a mental illness as: “ a person who has been found to be so suffering under this Act and includes a person diagnozed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol of substance abuse; 15. For a court to declare a person a suffering from mental illness it must be satisfied by evidence that: i. He suffers from a mental illness. ii. A medical report confirming the mental illness iii. That due to the mental illness he is incapable of making decisions about himself in capable of undertaking daily living activities like feeding mobility and needs a care giver iv. Is unaware of the surroundings time and space 16. Section 3 of the Act. The rights of a person who has mental illness. One of the most important of them is protection from physical and mental abuse and any form of discrimination and to be free from exploitation. He also has the right to receive reasonable care, assistance, and protection from their families and state. Most importantly, under Article 57, he has the rights to the highest standard of dignity. 17. It is not in dispute the subject is an older member of society under Article 57 of the Constitution. He is now aged 95 years old as he was 93 years old at the time of examination in 2024, as per the medical report by doctor Ochanda, he suffers from the following conditions as per medical report: 1. Diagnosis: Severe Dementia. 2. Deep Venous Thrombosis (D.V.T) 3. Fracture Left Femur. 4. Hypertension. 5. Bronchial Asthma. 6. CA Prostate. 18. The patient, who was admitted in Kenyatta National Hospital In January 2024 under my care, has been reviewed here today after the reviews in March and June 2024. He is currently severely demented and cannot communicate by verbal expression. He however responds to and pain by movement and facial expression. He Is bed-bound and Is totally dependent feeding with blended liquid foods. 19. The fractured right femur Is settled though giving him a wrong posture. The D.V.T is controlled but he is still on anticoagulants. The hypertension Is under dietary control. The Prostate is on follow-up at the cancer center. He Is currently on warfarin and an Inhaler, nebzmart and physiotherapy. 20. From this report it is clear to this court that the subject is unable to speak, recognize people, move on his own or feed himself. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5788/eng@2026-04-30 4

page 4 of 7

21. This Court observed the subject on the Virtual Platform. He was unable to engage in a conversant way, was bed ridden and groaning. I am satisfied that from the evidence that the subject is suffering from a mental disorder to an extent as to be incapable of managing himself. I therefore do find and declare the subject M’Maingi M’ Laare aged 95 years old to be a person suffering from a mental illness in accordance with section 2 of the Mental health Act. 22. Where a Court has found or declared a person to be suffering from a mental illness and determined that the person suffering from mental illness needs care, the court can appoint a guardian for such a person. If the person has property or assets which because of such determination he cannot manage or manage affairs of his estate, then the court can appoint a manager. Any person so appointed can be guardian and manager of the Subject's affairs. Section 26 (3) provides: 23. 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. 24. In determining the person to be appointed as guardian and manager, the primary consideration is the Subject's best interest. This would include: (i) Protection from harm or exploitation (ii) Access to necessary care and support (iii) preference of the person if same can be discerned. (iv) Management of his affairs. Section 28 provides: Power to make order concerning any matter with the person. 25. (1) The court may, upon application made to it by petition concerning any matter connected with a person suffering from mental disorder or with his estate, make such order, subject to this Part, regarding such application as, in the circumstance’s 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. As a general rule family members are given first priority in consideration of suitable guardians. this can be adult children parents or siblings The subject was married to Tabitha who died in 2023. he therefore has no spouse living. he has the following adult children: 1. ANK, the first born, the first daughter and the first petitioner; 2. The late EM, the first son and the second born who died on 23rd February, 2017; 3. JKM, the second daughter and second petitioner herein; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5788/eng@2026-04-30 5

page 5 of 7

4. JM, the fourth born and the second son; 5. EM; the fifth born and the third son; and 6. MM, the sixth born and the fourth son EM Maingi. 26. He is a son of the subject and stays in Meru. He was staying in the same compound with the subject. He denies that he neglected the subject who was unwell. He knew the subjects because ……the subject……… Bario and confirms he used to come and see the subject. He denies that it is Bario who informed his siblings about the illness. He confirmed subject was taken to Nairobi in 2017 and he last saw him in 2019. He knows subject stays in Rongai and has not gone to see him for 7 years. 27. MM Maingi testified that he is a son of the subject. In 2017 he was staying with the subject in the same house together with his mother Tabitha who is now deceased. He stayed in the four-bedroom house with his wife and 4 children. He testified that he used to take care of the subject with assistance of his siblings. He denies that they neglected him. The subject with whom he was staying with in the same house was taken to Nairobi in 2017 and he has never seen him to date. He knows the subject lives in Rongai with Jerusha but has not seen him for 9 years. 28. JMM testified that he is the fourth born. He stays at the home in Meru where he is a peasant farmer. He is aware of the Subject's illness and visits him often. He however denies that he attempted to transfer Subject’s land to himself a Matter which is subject to ELC Proceedings. 29. CM testified that the subject is her father-in-law having been married to EM, a son of the Subject who died in 2017. She says in Meru. She testified of the strained relationship with the petitioners. She confirmed to court she has not visited nor seen the Subject since 2017. She informed court that an order was issued to have access to the Subject by a court in Meru but she did not avail herself to that opportunity. 30. ANK testified that she is a daughter of the Subject and stays in Sweden. 31. In 2017 she received information on the illness of the subject. 32. She traveled to Kenya and took him to hospital. She made arrangements for the Subject to be staying with Jerusha in Rongai to be closest to his doctors. She supports his maintenance and monitors his progress she however stays in Sweden and for that reason disqualifies herself to be the primary guardian. 33. JKM testified that she's a daughter of the subject. She is aged 62 years and married with adult children. She took in the Subject in 2017 and has been staying with him since. She obtained an order of interim guardianship in 2017. She has secured the services of a caregiver from Texas Cancer Center who offers 24-hour service to the Subject. She also manages the estate of the Subject which brings income of Kenya shilling 231,000 which is utilized in maintaining the Subject. 34. In appointing a guardian and manager of the affairs of the of a person with mental illness the Court must be satisfied that such person; 1. Is capable of protecting the subject from harm or exploitation 2. Is able to give all the necessary care and support 3. Has the capacity to manage of the medical, financial, social affairs of the subject, trustworthy and reliable https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5788/eng@2026-04-30 6

page 6 of 7

4. Is capable of being a good trustee of the estate of the Subject. 5. Has the interest of the Subject at heart as supported by compassion, empathy patience and understanding. 35. By their own evidence, Eliud Murungi confirmed to the court that he knows of the subject's illness but he last saw him 7 years ago, Martin too confirmed he saw the subject 9 years ago, Justus visits him but tried to transfer subjects Land which issue is in ELC Court in Meru. CM the daughter-in-law confirmed she does not go along with the children of the subject. From the evidence it was clear to this court that only two of the subject's children.All daughters were taking care of him in his condition. ANK stays in Sweden but provides resources. JK is staying with the subject at her home in Rongai since he was sick in 2017. 36. The subject is still under her care and has made arrangements for his care by contacting 24-hour nursing care from Texas cancer center. I am satisfied that the children of the deceased who can provide care support and compassion to the subject are Anne Nkirote and JKM. I hear by a point Ann and Jerusha as guardians of M’ IMaingi M’Laaru a person suffering from a Mental disorder under section 26:1 b and managers of his estate as provided for under Section 26 1 of the Mental Health Act. The powers of the manager in respect of the estate is as provided under Section 27 of the Act. DATED AT NAIROBI THIS 30TH DAY OF APRIL, 2026. S. N. RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5788/eng@2026-04-30 7

page 7 of 7