An attempt by a woman to get complete authority to manage her husband’s estate claiming he had mental issues has flopped.
High Court judge Mary Kasango dismissed the case by EW, saying there is no merit in her application because there is no proof the husband is suffering from any mental illness.
The judgment was delivered on June 3.
EW had rushed to court once the husband was admitted to a city hospital with a Covid-19-related ailment, seeking control of his assets using provisions of the Mental Health Act.
She asked the court to appoint her as legal guardian and manager of all his assets and cash.
The couple married under Kikuyu customary law and have two children.
The man was hospitalised following severe pneumonia and diabetes, which led to memory loss. The court was told he was unable to manage his affairs without assistance.
“That as a consequence, certain friends and conmen have been taking advantage of the subject (man) to defraud him of his assets,” the court heard.
It is on this basis that the wife sought to be allowed to manage all affairs of the husband under provisions of Section 26 of the Mental Health Act.
Under Kenyan law, children or any close relatives in special circumstances can be allowed to manage the wealth and property of their parents.
Section 26 of the Mental Health Act allows the court to make orders for the management of persons suffering from mental disorders.
The law allows the guardian to also take care of the well-being of the person with a mental disorder.
Once an individual is appointed a manager of an estate, he or she is not allowed to transfer, gift, sale or mortgage immovable assets that form part of the estate without express permission of the court.
For a court to be convinced to give guardianship orders, there has to be a medical report showing the parents in question, though sometimes physically fit, are mentally unsound, hence the need for a guardian.
In the current case, two medical reports presented before the court showed he had severe pneumonia and diabetes mellitus.
He had been admitted to the intensive care unit but by the time the medical report was brought to court his situation had improved.
Justice Kasango noted that none of the reports before her indicated that the man had a mental illness.
“The prayer therefore that the subject is incapable of protecting his interest and the prayer for an order under mental health Act is not proved. There is no proof before this court of the subject having a mental impairment,” held the judge.
The judge also noted that the woman failed to disclose the properties she wishes to manage on behalf of her husband.
“There is no mention of any title number nor a bank account. Instead, the petitioner sought blanket orders to manage the subject’s estate without disclosing what that estate consists of,” said the judge.
-Edited by SKanyara
