Mental health is defined as “a state of well-being whereby individuals recognize and realize their abilities, can cope with the normal stresses of life, work productively and fruitfully, and make a contribution to their communities.” A common mental health disorder is estimated to affect one out of every ten Kenyans today. The most common mental illnesses identified in Kenya are depression, anxiety and drug use disorders.
According to the Mental Health Act, of Kenya mental illness translates to a lack of legal capacity to contract on . The act provides a procedure for dealing with the property of people suffering from mental illness. However, legitimate claims arise that this provision is outdated and violates the conventions of international human rights.
Additionally, the Mental Health Act has been condemned for being discriminatory because it denies the mentally ill the ability to present their evidence (including witnesses) or the opportunity to challenge evidence. This is under a presumption that the mentally ill lack legal capacity to make decisions about their livelihoods including disposing off their own property
The Mental health patients with vast property investments often fall victims to religious fallacies propagated by unscrupulous men of the cloth. Sadly in most cases, it ends up in their property rights being deprived.
Most mentally ill persons lack the knowledge on how to secure their property knowledge how to secure their property rights. A sad state of affairs.
Protection of property rights
Property is one of the things that are good and necessary for the full expression of personality and individual development. Human flourishing is explicated principally in the orbit of private property as being the moral foundation of the property. The person is vested with the opportunity to live a much more fulfilling life. Securing property rights advances human flourishing by increasing autonomy and control over resources. Vulnerability as a manifestation of poverty and deprivation has been explained by the Kenya National Land Policy to take forms such as exposure to ill-treatment, lack of power to influence decisions affecting one’s life and disabilities. People with disabilities including mental illnesses are described as one of the most vulnerable persons in Kenya.
The constitutional underpinning of protection of property rights
This section looks at how select constitutional provisions take into consideration the special case of mental health patients vis-a-viz the protection of their property.
The Constitution recognizes every individual’s right either in person or in association with others to acquire and own property of any description in any part of Kenya.
The State is charged with the obligation of protecting the intellectual property rights of the people of Kenya. Parliament is further barred from enacting any law that permits the state or person to arbitrarily deprive a person of property of any description or any interest or right over, property of any description. The Constitution additionally restricts Parliament from limiting in any way or restricting the enjoyment of property specified or contemplated under article 27(4). The State is barred from depriving a person of property of any kind except under special circumstances.
Statutory framework for the protection of property rights of mentally ill victims
Section 73 of the Health Act 2017 sets out the establishment by an Act of parliament legislation to protect the rights of any individual suffering from any mental health disorder or condition and to ensure the custody of such persons and the management of their estates as necessary.
The Health Act contemplates an enactment to protect the rights of any individual suffering from any mental health disorder or condition and to ensure the custody of such persons and the management of their estates as necessary.
Protection of the property of mentally ill victims under the purview of proposed laws
There is a need to develop frameworks that ensure that the property of mentally ill persons is protected. The Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill of 2018 which lies before the Senate identifies vulnerable people to include people with disabilities, groups at risk of social marginalization and discrimination and any other group that may be identified from time to time.
The Mental Healthcare Bill, 2012 also makes several provisions that are aimed at protecting the affairs and interests of mentally ill persons. Section 12 of the bill lays out that the determination of the mental illness is made following the provisions of the act. Section 13 further bars the determination of mental illness based on political, economic, social status, or membership in a cultural, racial or religious group, or for any other reason not directly relevant to the mental health status of a person. In addition, a family or professional feud or non-conformity with moral, social, cultural, racial beliefs prevailing in a person’s community shall not be a determining factor in the diagnosis of mental health.
In the National Assembly, the Mental Health Bill of 2014 gathers dust, it explicates the supervision and management of the property of persons with mental illness. The Mental Health (Amendment) Bill of 2018 that is currently before the Senate seeks to exorcise the demons of the principal Act. The care and administration of the property of persons with mental illness reverberate the already aforementioned Mental Health Care Bill of 2012.
Protection of property rights of mentally ill victims in the International Law Regime
Kenya ratified the Universal Declaration of Human Rights on July 31st 1990. Article 1 of the Universal Declaration of Human Rights holds out that all human beings are free and equal in dignity and rights. They are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 6 of the declaration accords the right to recognition everywhere as a person before the law. Equal protection before the law without any discrimination is an entitlement to each person under Article 7 of the declaration. Article 17 of the declaration further grants one the right to own property alone or in association with others. Further, no one shall be arbitrarily deprived of his property.
Kenya ratified the Convention on the Rights of Persons with Disabilities on the 19th of May 2008. Article 12 of this convention provides that persons with disabilities have the right to recognition everywhere as persons before the law, States shall further recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Kenya is obligated to take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property among others, the state is also obligated to ensure persons with disabilities are not arbitrarily deprived of their property. The principles for the protection of persons with mental illness direct that any determination that a person lacks legal capacity due to mental illness, and any decision that a personal representative should be appointed as a result of such incapacity, must be made only after a fair hearing by an independent and impartial tribunal established by domestic law. This formed part of the laws of Kenya by dint of Articles 2(5) and 2(6) of the Constitution of Kenya.
Available remedies offered by our courts of law in cases of breach
In re Estate of C H, the court was of the view that for a petitioner to file a petition under the mental Health Act, it is necessary that from the onset a medical report on the mental status of the alleged patient has to be attached. The judge further held out that it is oppressive to compel the applicant to stand trial in a bid of proving her sanity. The application thus lacked foundation without a medical examination and could not be cured even by an amendment.
Justice Rawal In the Matter of Gershon Kamau Kirimaheld that the petitioner while bringing in a petition for orders under Section 26 of the Law of Succession Act has to show the court by providing medical reports to substantiate the averments in the petition. That upon a petitioner approaching the court they have to show prima facie that the person whom the orders are being sought is for the welfare of the person concerned. The satisfaction of the court will be based on the medical reports annexed to the report.
In re SNGJustice Mary Kasango dismissed the petition for lacking merit. The petitioner failed to disclose the properties that she sought to manage on behalf of the subject. There was no mention of any title number or bank account. The petitioner was only seeking blanket orders to manage the subject’s estate without disclosing what the estate consisted of.
The lackadaisical nature of the Kenyan parliament has been exposed in its failure to work on the relevant bills which would reform the administration of properties of mentally ill people. The lack of political goodwill in the implementation of international guidelines and enactment of the bills will only make the property rights of mentally ill persons easily trampled on. The property rights and legal capacity of this class of persons should be jealously guarded, as the current framework exposes them to possible exploitation. These possibilities emphasizes the need to develop appropriate frameworks that ensure the property of this impuissant category is preserved.
The theme for the World Mental Health Day 2021 is ‘Mental Health in an Unequal World’. This day is recognized on the 10th day of October of every year. These inequalities also extend to the socio-political and legal spheres of different if not all societies.
Miracle Okoth Okumu Mudeyi is a law student at the University of Nairobi Parklands Campus and is also a mental health awareness advocate
Teddy Tabu Odira is a law student and poet at the University of Nairobi Parklands Campus
 http://www.who.int/mental_health/media/investing_mnh.pdf accessed on the 11th October 2021.
Mental Health Taskforce Report, 2020.
 Cap 248 Laws of Kenya.
 (Kenya’s mental health law David M. Ndetei, Job Muthike, and Erick S. Nandoya)
 https://wamaeallen.com/dealing-with-property-held-by-persons-suffering-from-mental-illness-a-review-of-the-mental-health-act-of-kenya/ accessed on the 11th October 2021.
 Section 14 of the Mental Health Act, Kenya.
 Hobhouse, ‘The historical evolution of property, in fact and in idea’, 28.
 Alexander G, ’Ownership and Obligations: The human flourishing theory of property’ Cornell Faculty Publications, 653(2013), 1.
 Alexander, ’Ownership and Obligations’, 1.
 Republic of Kenya, 2009.Sessional Paper No.3 of 2009 on National Land Policy.
 Article 40(1), Constitution of Kenya, 2010.
 Article 40(5), Constitution of Kenya, 2010.
 Article 40(2), Constitution of Kenya, 2010.
 Section 73(a) of the Health Act, 2017.
 Section 73 (b) of the Health Act, 2017.
 Section 73(a) of the Health Act, 2017.
 Section 73 (b) of the Health Act, 2017.
 Section 2 of the Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill, 2018.
 Section 12 of the Mental Health Care Bill, 2012.
 Section 13 of the Mental Health Care Bill, 2012.
 See Section 26 -43 of the Mental Health (Amendment) Bill, 2018.
 Universal Declaration of Human Rights(adopted 10 December 1948 UNGA Res 217 A(III) art 1
 Universal Declaration of Human Rights(adopted 10th December 1948 UNGA Res 217 A(III) art 6
 Convention on the Rights of Persons with Disabilities(Adopted 13th December 2006) art 12(1)
 Convention on the Rights of Persons with Disabilities(Adopted 13th December 2006) art 12(2)
Convention on the Rights of Persons with Disabilities(Adopted 13th December 2006) art 12(5)
 Principles of the Protection of persons with mental illness and the improvement of mental health care (Adopted by the General Assembly resolution 46/119 of 17th December 1991).
 [2017} eKLR