Case ID:171005

In re LGM (Subject) [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Application E057 of 2020

Parties:

In re LGM (Subject)

Date Delivered:

25 Jan 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re LGM (Subject) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MISCELLANEOUS CIVIL APPLICATION E057 OF 2020

IN THE MATTER OF LGM (SUBJECT)

MAM.....................................................................................................APPLICANT

RULING

(1) Before this Court is the Notice of Motion dated

5

th

November 2020

by which

MAM

the Applicant seeks orders as follows:-

“1. SPENT

2.

THAT

the subject LGM be and is hereby adjudged a person suffering from mental sickness under the Mental Act.

3.

THAT

the Honourable Court finds that the subject LGM is incapable of protecting her interests with regard to her affairs due to aneurismal subarachnoid hemorrhage which has mentally incapacitated her.

4.

THAT

the Applicant MAM be appointed as the subject’s ‘guardian ad litem’.

5. THAT the Applicant MAM do manage the affairs of the subject.

6. THAT the Applicant be and is hereby authorized to access and operate the subject’s bank account held at Co-operative Bank of Kenya, Parliament Road, Account No. XXXXXXXXXX for purposes of meeting the subject’s medical costs.”

(2) The application was premised upon

Sections 1a, 1B, 3A

of the Civil

Procedure Act, Order 37 Rule 16 and Order 32 Rule 12

of the

Civil Procedure Rules, Sections 26, 28(1)

and

(2)

of the

Mental Health Act

,

Cap 248

and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant. The Motion was canvassed before the Court on the online platform by way of viva voce evidence on

21

st

January 2021

.

BACKGROUND

(3) The subject

LGM

is a

57 year old

lady who is said to have suffered a major intracranial aneurismal rupture (stroke) which resulted in permanent brain injury. As a result the subject’s memory and neurological functions have been adversely affected. She is currently bedridden and according to doctors is unlikely to make a full recovery.

(4) The subject is married to one

AN

who was also at the time admitted at the Intensive Care Unit at

Coptic Hospital

in

Nairobi

. The couple have two (2) adult children namely

PWN

born on

31

st

January 1993

and

MKR

born on

12

th

August 1990.

(Annexed to the Supporting Affidavit are copies of Marriage Certificate

‘MAM 3’

of the couple as well as the Birth Certificates of the two children

PNW’2’

and

MKR’1’

).

(5) The Applicant is the elder sister to the subject. In view of the subject’s illness and incapacity and due to the fact that the subject is not capable of protecting her interests and managing her own affairs, the Applicant seeks to be appointed as guardian to the subject to manage the affairs of the subject herein. Hence the present application seeking Guardianship orders.

ANALYSIS AND DETERMINATION

(6) I have carefully considered the application before me, the Affidavit in support as well as the various reports and consents filed in this matter.

Part XII

of the

Mental Health Act, Cap 248 Laws of Kenya

provides for judicial power over persons and estates of persons who are shown to be suffering from mental disorder and/or incapacity.

Section 26

of the

Act

provides as follows:-

“

Order for custody, management and guardianship

(1) The court may make orders—

(a) for the management of the estate of any person suffering from 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.” [own emphasis]

(7) This Court has been told that the subject suffered from a major intracranial aneurismal rapture which has left her with permanent brain injury. Annexed to the Supporting Affidavit dated

5

th

November 2020

are copies of a Medical Report confirming this fact. (Annexture

5 ’a’

). This Report dated

15

th

November 2019

prepared by

Dr. Mogere E. K.

a Neurosurgeon at the

Aga Khan University Hospital

confirms that

LGM

(the subject herein) was admitted at the said hospital on

30

th

July 2019

and was discharged on

2

nd

September 2019

“while fully dependent and bed-ridden.” The children of the subject who testified in Court confirmed that they live with the subject and confirm that she requires 24 hour nursing care as she is unable to do anything for herself.

(8) Also annexed the Supporting Affidavit is a card Serial

No. XXXXXXXX

issued on

18

th

September 2020

to the subject by the

National Council for Persons with Disabilities

confirming that the subject suffers from both physical and mental disability. Based on the evidence available I find and hold that the subject does suffer mental disability and in the circumstances is not in a position to manage her own affairs.

(9) The subject herein is a person suffering from both mental and physical disability. She requires round the clock care. The family need to provide for her medical care, nursing care as well as any medications required. The subject is unable to take care of her own affairs. She obviously needs a guardian to take over her affairs in her best interests.

(10) Ordinarily the person who would be expected to take up the Guardianship of the subject would be her husband. However the subject’s husband one

AN

was unwell and was admitted in the

ICU

at

Coptic Hospital

at the time this application was filed (see Annextures

7(a)

and

7(b)

to the Supporting Affidavit). On

21

st

January 2021

when this matter came up for hearing the Applicant informed the Court that the subject’s husband who was suffering from Brain Cancer sadly passed away on

21

st

December 2020

and was buried on

30

th

December 2020

.

(11) The two (2) children of the subject

PWN

and

MK

have both signed consents dated

5

th

November 2020

(Annexed to the Supporting Affidavit) supporting the Applicant’s application to be appointed as Guardian for the subject. The said two children of the subjects testified before the Court and they each confirmed their consent and stated that they trusted their Aunt (the Applicant) to take care of the affairs of the subject.

(12) Based on the foregoing I am satisfied of the merit of this application. Accordingly I do allow the Notice of Motion dated

5

th

November 2

020 and make the following orders:-

(1) The subject

LGM

is hereby adjudged to be a person suffering from mental illness under the

Mental Health Act.

(2) The Applicant

Margaret Ann Igoki Mujwa

is hereby appointed as the subject’s legal guardian to manage the affairs of the subjec

(3) The Applicant is hereby authorized to access and operate the subject’s bank account held at

Co-operative Bank of Kenya, Parliament Road Branch

,

Account No. XXXXXXXXXX

for purposes of meeting the subject’s medical needs.

(4) No orders on costs.

Dated in

Nairobi

this

25

th

day of

January, 2021

.

.........................................

MAUREEN A. ODERO

JUDGE