Guardianship, Management and Administration Orders Under the Mental Health Act in Kenya: A Comprehensive Legal Guide

What Is Guardianship Under the Mental Health Act (Kenya)?

Under the Mental Health Act, Cap 248, guardianship refers to a court-appointed legal arrangement where a suitable person is granted authority to make decisions on behalf of a person suffering from mental illness who is incapable of managing their personal affairs or property.

A guardianship order empowers the appointed guardian to make decisions regarding medical care, personal welfare, living arrangements, and property management, subject to the scope granted by the court.

How does the Act define “mental illness”?

The Mental Health Act defines a “person suffering from a mental illness ” as any person who has been diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes, a person diagnosed with alcohol or substance use disorder; and, a person with suicidal ideation or behaviour.

Courts typically rely on:

• Medical reports
• Psychiatric evaluations
• Expert testimony

to determine whether the person meets the statutory threshold of being a person suffering from mental illness.

What is “adult guardianship” in Kenya (under the Mental Health Act)?

“Adult guardianship” (often used in practice) refers to court orders made under the Mental Health Act appointing a guardian and/or manager of the estate for an adult whose capacity is impaired. Kenyan High Court decisions commonly use the terms guardian and manager, and sometimes both, depending on the facts.

When should one apply for guardianship under the Act?

An application for guardianship under section 26 is appropriate where:

1. The adult has been medically assessed as having a mental disorder and is unable to manage his or her own affairs, or to look after personal care and safety.​
2. There is a need for a relative or suitable person to make decisions about treatment, residence, court cases, or social and financial arrangements on the subject’s behalf.

You should consider applying where an adult’s mental condition results in any of the following recurring risks:

• Inability to manage finances (rent, school fees, debts, medical bills)
• Exposure to exploitation (fraud, undue influence, predatory transactions)
• Harmful contractual/property decisions (selling/charging land, signing unclear contracts)
• Failure to attend to basic obligations leading to loss of property or litigation
• Medical evidence confirming cognitive/psychiatric impairment affecting decision-making.

What are the purposes of guardianship/management orders in Kenya?

The key purposes include:

1. Protection of the person (welfare, care, treatment decisions where appropriate)
2. Protection of the estate (preventing wastage, fraud, dissipation, illegal transfers)
3. Orderly administration of assets and liabilities, including paying debts and providing maintenance for dependents.
4. Court-supervised accountability, including reporting duties and restrictions on disposal of immovable property

The Act expressly empowers the court to make orders necessary for the administration/management of the estate, including maintenance and payment of debts, and to appoint a manager to safeguard property.

Who can apply for adult guardianship orders in Kenya?

An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by:

1. a supporter,   a person appointed under section 3I by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness; or (
2. the representativeof the person where the person with a mental illness has not appointed a supporter.  A representative” means –
   • a spouse of that person, or if unable or unwilling;
   • the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling;
   • a parent of that person, or if unable or unwilling;
   • a relative of that person, or if unable or unwilling, or
   • a person under whose care or charge the person with mental illness is.

Can the court appoint the Public Trustee as guardian/manager?

Yes. Where there is no known relative or other suitable person, the court may appoint the Public Trustee as manager and guardian.

What is the difference between a “guardian” and a “manager of the estate”?

In Kenyan practice under the Act:

• A guardian is appointed mainly for personal welfare/decision-making and representation of the subject.
• A manager of the estate is appointed specifically to administer and safeguard the property and the estate of the person with mental illness (land, money, bank accounts, income, debts, legacies).

Courts frequently appoint the same person as both guardian and manager, but they may also appoint different persons or even the Public Trustee where suitable relatives are unavailable.

What factors guide courts in granting guardianship orders?

Kenyan courts have distilled clear guiding factors when considering a guardianship petition under sections 26 and 27.

A leading statement of principles appears, for example, in In re NMK (Subject) (Miscellaneous Application 73 of 2017) [2017] KEHC 921 (KLR) (23 November 2017) , where the court summarised the main factors as:

1. There must be medical evidence warranting the determination by the court that the subject suffers from a mental disorder.
2. The person to be appointed to be either a Guardian or a manager must be fit to be so appointed.
3. The court must be satisfied that a proposed manager will utilize her powers for the benefit and welfare of the Subject.

The overriding principle in applying all these factors is that the welfare and best interests of the subject must be the overall guiding principle.

Generally, as demonstrated by the various courts’ decisions on adult guardianship orders under the Mental Health Act, courts typically assess:

• Quality of medical evidence: recent psychiatrist or specialist report, clarity on diagnosis, prognosis, and functional impact.​ Under Section 26(6) of the Act, the Court has the power to order a person whose an application for guardianship is made on account of mental illness to present themselves to be examined by a qualified mental health practitioner.
• Best Interests of the Subject: Courts prioritize the welfare, dignity of the person, and their wishes.
• Nature and extent of the estate: complexity and risk level of the subject’s assets, debts, and business interests.​
• Family dynamics and consent: whether close relatives support or oppose the application, the presence of conflict, and whether joint guardianship is appropriate.​
• Past conduct and suitability of the applicant: honesty, prior handling of the subject’s affairs, any allegations of misuse of funds or abuse, and the guardian’s capacity to discharge the role.​
• Accountability safeguards: inventory, reporting, and court approvals for major transactions.

What Is the Procedure for Applying for Guardianship Under the Mental Health Act?

Applications are filed in the High Court (Family Division or relevant station) by way of a petition supported by an affidavit and medical evidence. The process is broadly as follows:​

1. Obtain a medical report
   • Have the subject examined by a psychiatrist or qualified medical practitioner and secure a detailed report/medical certificate on diagnosis, capacity, and prognosis.​
2. Prepare petition and supporting affidavit
   • Draft a petition citing sections 26, 27, and, where relevant, 28–29, setting out the subject’s details, diagnosis, incapacity, description of assets and income, proposed guardian(s), and orders sought (guardianship and, if needed, management orders).​
   • Prepare a supporting affidavit describing the illness, its effect on the subject’s ability to manage affairs, the family background, the property of the person, the relatives, and reasons why the applicant is a suitable guardian.​
3. Attach supporting documents
   • Identity documents of the petitioner(s) and the subject (ID/passport).​
   • Medical report/psychiatrist’s certificate.​
   • Proof of relationship, such as a marriage certificate (for spouse) or birth certificates (for children).​
   • Where available, a letter from the local Chief confirming the family relationship, circumstances, and absence of dispute or listing all known dependants.​
   • List and brief description of the subject’s movable and immovable property, income sources, and liabilities.​
4. File in court and pay fees
   • File the petition, affidavits, and annexures at the High Court registry, pay the requisite filing fees, and have the matter given a case number and hearing date.​
5. Service and responses
   • Serve the petition on the person to whom the application is made or interested parties, or as directed by the court.​ The court may waive service of the notice upon the person to whom the application is made if the court considers service impracticable, inexpedient, or would be ineffectual.
   • Objectors may file replying affidavits or cross‑petitions proposing alternative guardians or managers.​
6. Hearing and court inquiry
   • At the hearing, the petitioner gives evidence, and the court may receive oral evidence from other relatives or witnesses.​
   • The court may require the subject to attend in person, where practicable, to observe their condition, or may rely on hospital/medical visits and reports.​
7. Orders and follow-up
   • If satisfied, the court will:
     • Declare the subject a person suffering from mental illness under section 26.​
     • Appoint the guardian(s), and where applicable, a manager of the estate, specifying powers and any conditions.​
   • The court may direct periodic reports or accounts, especially where there is substantial property involved.

What core documents are needed for a guardianship petition?

While specific requirements vary by court station, standard documentation includes:

1. Duly drawn petition citing sections 26–29 of the Mental Health Act.
2. Supporting affidavit by the petitioner setting out the factual background and reasons for the orders.
3. Recent medical report/psychiatric evaluation evidencing mental disorder and incapacity.
4. Copies of ID cards or passports of the petitioner(s) and the subject.
5. Proof of relationship documents (birth or marriage certificates, where applicable).
6. The chief’s letter confirming the relationship and family position is often required in practice in family‑related guardianship and succession matters.
7. Consent affidavits or letters from other immediate family members consenting to the applicant being appointed, to reduce disputes (not always mandatory, but strategically helpful).
8. Schedule of the subject’s assets, sources of income, and liabilities, if management orders over property are also sought.

What interim protective measures can the court grant pending full determination?

Depending on urgency and evidence, parties often seek interim protection such as:

• Orders restraining the sale/transfer/charging of property
• Orders preserving rental income or specific bank accounts
• Limited authority to pay medical bills, school fees, or urgent debts
• Directions for expedited medical assessment or mention dates

In practice, courts craft orders to protect the estate while enforcing statutory restrictions on major transactions.

What duties and responsibilities does an appointed guardian/manager have?

Key duties of managers and guardians under the Mental Health Act include:

• Acting responsibly and in the best interests of the subject and estate
• Safeguarding property and preventing wastage or exploitation
• Seeking court approval before dealing with immovable property beyond permitted limits, e.g., mortgaging, selling, gifting, or leasing beyond 5 years,
• Complying with gazettement, reporting, and inventory requirements where ordered
• Avoiding conflicts of interest.

Failure to comply can expose the manager to court sanctions, fines, imprisonment, and removal, and can invalidate or block transactions.

What practical considerations should applicants bear in mind?

From Kenyan case law and practice, several practical considerations emerge:

• Ensure the medical report is recent, detailed, and from a recognized psychiatrist or mental health practitioner; outdated or vague reports attract judicial scrutiny.​
• Engage family members early to minimize objections, and consider proposing joint guardianship where there is legitimate concern about checks and balances.​
• Clearly outline the subject’s assets and liabilities if management orders are sought, and be ready to justify any proposed sales, charges, or major transactions.​
• Anticipate the court’s concern with best interests and least‑restrictive orders, and frame the petition around how the orders will protect, rather than displace, the subject’s autonomy.​

How Njaga & Co. Advocates LLP Assists in Adult Guardianship and Family Law Matters

Njaga & Co. Advocates LLP’s Family Law department offers clear, compassionate, and results-driven support to families navigating adult guardianship under the Mental Health Act. We help clients understand when guardianship is necessary, prepare all required documents, coordinate psychiatric reports, file the petition, and represent them throughout the High Court process. Our goal is to secure orders that protect the dignity, welfare, and property of vulnerable adults.

Beyond guardianship, we provide full-spectrum family law services, including divorce, custody, legal guardianship, adoption, succession, estate preservation, incorporation of family trusts, and matrimonial property matters. Every case benefits from our hallmark approach: Talented Personnel, Tireless Preparation, and Perfect Execution, ensuring families receive strategic guidance and steady support during life’s most delicate transitions.

Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.