LDC HC/LDC/45074/LA

LEGAL ALERTS

Power of High Court to make an inquiry into the

estate of a person of unsound mind.

The rationale for conducting an inquiry into the

mental health status of a person of unsound mind by
Court.

The difference between a person with mental illness

and a patient under the Mental Health Act, 2018.

Why court may not find it necessary to send a person

alleged to be of unsound mind for medical
assessment.

Obiter: Does a claim for invalidity benefit under the

NSSF Act dependent on an Order of Court declaring
the mental status of the Applicant?

1. Power of High Court to make an inquiry into the estate

of a person of unsound mind
“…The power to make an inquiry into the mental health
status of a person, whose estate is sought to be managed,
is vested in the High Court. There must be some basis for
the inquiry. Section 98 of the Civil Procedure Act, as well as

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judicial decisions of this Court, and other persuasive
decisions from the common wealth, support this inquiry.
See Aseru Joyce Ajuu vs Anjeru Agnes, Misc. Civil
Application No. 001 of 2016 (Stephen Mubiru, J); In the
matter of Yambuka Emmanuel (patient), Misc. Cause No.
40 of 2018 (Olive Kazaarwe Mukwaya, J); In the matter of
an Application by Kirule Michael, Misc. Application No. 49 of
2021 (Florence Nakachwa, J); and In the matter of Segonga
Peter, a person of unsound mind, Misc. Cause No. 24 of
2018 (Eva K. Luswata, J (as she then was); Mohammed
Yaqub vs Nazir Ahamad & others Ind. Case 617; Ranjit
Kumar Ghose vs Secretary, Indian Psychoanalytical Society
AIR Calcutta 261; Balakrishnan vs Balachandran, (1956) 1
Mad LJ 459. The latter decisions were graciously cited and
followed in Aseru Joyce Ajuu (supra). I hasten add that
although the learned Judge, in the Aseru case (supra)
adverted the provisions of the Mental Treatment Act, Cap.
279 (since repealed), to conduct an inquiry, as a
Magistrate would do for the purposes of issuing a
reception order under Cap. 279, nevertheless my brother
Judge was also guided by the common law decisions in
that regard. Thus, it is my view that the repeal of the Mental
Treatment Act by the Mental Health Act, 2018, and the
absence of a similar provision in the latter Act, do not
deprive this Court of its wide powers to conduct an inquiry
as to the mental illness of the subject of the application
and his/her circumstances, and that of the applicant, as
circumstances may warrant. The power is inherent under
the reserve of powers in section 98 of the Civil Procedure
Act, Cap. 71.

2. The rationale for conducting an inquiry into the mental

health status of a person of unsound mind by Court
…The rationale for conducting an inquiry into the mental
health status of a person, has been stated by courts, but the
common thread in the authorities, when applied to
proceedings under the Mental Health Act, 2018, seems to me,

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to be the following; the inquiry is to enable court, not to
form a final opinion, as to the real condition of the person
alleged to be mentally ill, but to satisfy itself in the ordinary
way, in which a lay man can do, that there is a real ground
for supposing that there is something abnormal in the
mental condition of the person, which might bring him/her
within the provisions of the Mental Health Act; the inquiry
enables court to know the relationship that existed
between the applicant and the “patient”; the illness and
the length thereof; the actual causes, and the symptoms of
the illness; as well as what informed the application. This is
so because, an order passed in respect of a person said to
be mentally ill, without the court first making the judicial
inquiry, may be declared invalid and a nullity; and the
court inquiry guides court in coming up with a finding of
whether the subject of the application is incapable, due to
mental illness, of protecting himself and his affairs and
interests. The inquiry also ensures that no person is
pronounced to be mentally ill, without a proper inquiry. This
is more so in light of the presumption of sanity, a concept
recognised in our laws. See section 10 of the Penal Code
Act, Cap. 120. It is thus the humble view of this court that, a
court should not declare anyone as being mentally ill,
when there is doubt in the mind of court, as a declaration
of mental illness is a matter of sufficient gravity. A person
who is declared mentally ill, may well be deprived of
his/her rights and privileges, and may suffer prejudice.
Such rights include, decision making, the right to manage
one’s affairs in the ordinary contingencies of life, the right
to legal capacity, full and effective participation in societal
affairs, the right to self-determination, among others...
3. The difference between a person with mental illness
and a patient under the Mental Health Act, 2018
“…The Mental Health Act, 2018 which repealed the Mental
Treatment Act, Cap. 279 is more comprehensive on
matters of mental illness, compared to the repealed law.

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It is noted that, whereas under the old law (which
commenced in August 1938) the nomenclature used to
describe a mentally sick person was “a person of unsound
mind”, meaning an idiot or a person who is suffering from
mental derangement, yet under the current legal regime
the legislature chose the nomenclature “a person with
mental illness”. Therefore, whereas all the decisions of the
High Court cited herein before, save one, that is, the
Application by Kirule Michael, Misc. Cause No. 49 of 2021,
were rendered under the now repealed laws, those
decisions nevertheless, still represent good law, and
therefore remains persuasive to this court and bind all
lower courts, and could apply, mutatis mutandis, to
matters for adjudication under the Mental Health Act, 2018.
Mental illness, under section 2 of the Mental Health Act
means a diagnosis of a mental condition in terms of
accepted diagnostic criteria made by a mental health
practitioner or medical practitioner authorised to make
such a diagnosis. Mental health conditions include but are
not limited to, depression, bipolar, anxiety disorders,
schizophrenia and addictive behavior due to alcohol or
substance abuse. Mental health practitioner means a
psychiatrist, a registered psychiatry nurse, psychiatry
clinical officer, a mental health social worker and a clinical
psychologist. On the other hand, medical practitioner is a
person registered as a medical practitioner under the
Medical and Dental Practitioners Act and includes a
psychiatry nurse under the Nurses and Midwives Act. Court
notes that a person with mental illness is differently
defined from a patient under the Mental Health Act. A
patient is a person who receives treatment and care for
mental illness under the Act. On the other hand, a person
with mental illness is a person who is proven, at a
particular time, by a mental health practitioner to have
mental illness, at that particular time, and includes a
patient. For the purposes of determining the mental health
status of a person, section 55(1) of the Mental Health Act is
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instructive. There, it is provided that, where it is required for
proceedings before a court of law, or for other official
purpose, the determination of the mental health status of a
person shall be carried out by a psychiatrist, or where a
psychiatrist is not available, by a senior mental health
practitioner. The law clarifies that a determination of the
mental health status shall only be based on factors which
are exclusively relevant to the mental health status of the
patient and not on any social, political, economic, cultural,
religious or other factors. See section 55(3) of the Act…

4. Why court may not find it necessary to send a person

alleged to be of unsound mind for medical assessment
…In light of the forgoing pieces of evidence, court is unable
to, and finds it unsafe, to conclude that, as at the time the
application was lodged in court (6 September, 2022) Mr.
Ayella had been conclusively determined by a mental
health practitioner, envisaged under the Mental Health Act,
2018, as having mental illness. This court accordingly
declines to find that Mr. Ayella is still suffering from mental
illness, in the circumstances. Before I take leave of this
issue, court did not find it necessary to send Mr. Ayella for
medical assessment, as to do so could open room for
abuse of court process, and more so when he stated that
he lacks money for medical evaluation. More intriguing is
where in his own words; Mr. Ayella said he was advised by
the NSSF Officers in Gulu, who looked at his termination
letter, that he obtains an Order from the High Court, to
enable him claim his invalidity benefits from NSSF… I also
note that medical examination under the Mental Health
Act has to be with consent of the person to be examined,
unless the circumstances warrant an involuntary action,
which Mr. Ayella’s condition would not. Sending him for
examination would thus have costs implication. Court, in
the special circumstances of the case, is unable to
descend into the administrative bureaucracies associated
with admission and evaluation of Mr. Ayella in a medical

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facility of the level recommended by the experts who
assessed him whilst in Mogadishu, Somalia. He is however
still free to take that route, may be with help of well-
meaning persons, including the NSSF, where he is a Fund
member. In conclusion on issue number one, I hold that
court is not satisfied, on the available evidence, that Mr.
Ayella has mental illness, for purposes of the Mental Health
Act, 2018. This is so because the last known medical
examination of Mr. Ayella happened in December, 2021, in
Somalia, which finding is no basis for this court drawing a
conclusion on his mental status as at September 2022, the
month the application was lodged in Court. Considering
the risks in holding a person to be mentally ill when he/she
is actually not, which in court’s view, are quite serious,
court hereby declines the invitation by the Applicant (and
Mr. Ayella) to find him mentally ill. I accordingly answer the
first issue in the negative.

5. Obiter: Does a claim for invalidity benefit under the

NSSF Act dependent on an Order of Court declaring the
mental status of the Applicant?
Before I take leave of this matter, I feel some deep
empathy for Mr. Ayella, who lost his job and was not given
an administrative job by Reed Inc., yet he has a family to
care for. The recommendation by Dr. Apio Irene Wengi, to
Mr. Ayella’s erstwhile employer did not yield anything, as
the employer had no administrative job for him, yet the
employer could also no longer trust him with firearm, given
his then mental condition which posed risk to others. If Mr.
Ayella is not able to work again, and therefore unable to
earn a reasonable livelihood, as he informed court, then
the NSSF Officers and Management ought to humanely
assess this condition, in light of section 22 of the NSSF Act,
and pay him what is due to him, as an invalidity benefit.
The condition imposed by the NSSF officers, that he first
obtains an Order from this court, lacks legal basis, in light
of the current provisions of the Mental Health Act, 2018, wh-

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ich is very strict. He therefore need not first be declared by
court as a person suffering from mental illness, before he
can claim what is statutorily due to him under the
invalidity benefit. In court’s view, once Mr. Ayella is found to
be incapable of performing the kind of job he did before,
because of the disability assessed in December, 2021, and
thus unable to earn a reasonable livelihood as a result, he
ought to be considered for payment by the NSSF. This court
notes that under section 22 of the NSSF Act, Cap. 222,
entitlement to invalidity benefit is not conditioned upon,
and the benefits do not accrue to a Fund member on
condition that a Manager is first appointed by court, to
manage the estate of the member. Accordingly, the NSSF
Management and staff, and especially its Managing
Director, ought to consider and review the requirements of
processing of invalidity benefit, in light of the provisions of
the Mental Health Act, 2018, and the concerns of this court,
to accord rightful qualifying claimants their full benefits as
by law prescribed. Otherwise, to insist on an order from
court could cause an absurd situation, and abuse of court
process. That, in court’s considered view, would not be in
sync with the policy of court…”

IN THE MATTER OF AYELLA GODFREY (A PERSON WITH

MENTAL ILLNESS) AND IN THE MATTER OF AN
APPLICATION BY AKOBO PROSCOVIA TO MANAGE THE
ESTATE OF AYELLA GODFREY

HCMC NO. 226 OF 2022

JUDGMENT DELIVERED BY GEORGE OKELLO, J

ON SEPTEMBER 22, 2022

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