Guardianship Under The Children Act, 2022

The Act defines a guardian as a person appointed by a parent or by a court order to assume parental responsibility over a child on the death of the parent either alone or jointly with the surviving parent.  A guardian may be appointed on application in the prescribed form in respect of any child who is resident in Kenya whether or not the child was born in Kenya or is a Kenyan citizen.  Guardianship orders have been granted by the Kenyan courts under the previous act (Children Act, 2001). However, following the recent amendments to the Children Act, the following are the key changes that have been made with regard to guardianship applications under the new law:  

• Only a Kenyan citizen can be appointed as a guardian.
• A guardian who is not the father or mother of a child shall not remove the child from the jurisdiction of the Republic of Kenya without obtaining a court order and such leave is only granted in exceptional circumstances.
• Where leave is granted, the court shall impose such conditions and restrictions as it shall consider appropriate having regard to the best interest of the child.
• A guardian who is granted leave to travel out of the Kenyan jurisdiction with the child shall be required to produce the child to court upon return. 

 A guardian may be appointed in respect of the person or estate of the child or both. Where a guardian is appointed only in respect of the estate to which the child is a beneficiary, it shall not be necessary for the guardian to have actual custody of the child.   

Rights of surviving parent as to guardianship 

 On the death of the father or mother of a child, the surviving parent shall be the guardian of the child either alone or jointly with the guardian appointed by the deceased parent, if any.   Where no guardian had been appointed by the deceased parent or the guardian appointed by the deceased parent is dead or refuses to act, then the court may appoint a guardian to act jointly with the surviving parent. 

Appointment of a testamentary guardian 

Either parent of a child may by will or deed appoint another person to be the guardian of a child after the parent’s death or in case of the parent’s incapacity to cater for the child.  An appointed guardian may appoint another person to act in their place as the guardian of the child in the event of the guardian’s death or incapacity to cater for the child.  A guardian appointed by will or deed shall act jointly with the surviving parent of the child during the life time of the parent, unless the parent objects to the guardian’s appointment.  Different guardians appointed by both parents have joint responsibility over a child after the death of the surviving parent.  Where a guardian is appointed to act jointly with the surviving parent, the guardian shall continue to act as guardian after the death of the parent.  Where a surviving parent had appointed a guardian, a guardian appointed by the court shall act jointly with the guardian appointed by the parent.  

Customary Guardianship 

The court may appoint a guardian on application by any person in accordance with the customs, culture or tradition of a specific community in the manner prescribed where; - 

• The child’s parents are deceased or cannot be found, and the child has no guardian or other person having parental responsibility over the child.
• Where the child is one who has been neglected by the person/parent who is charged to provide their daily sustenance and or/maintenance. 

Expiration of Guardianship Over a child 

A guardianship order expires upon the child attaining the age of 18 years unless exceptional circumstances exist that would require a court to make an order that the appointment be extended. 

Extension of a Guardianship Order beyond the child’s 18th Birthday 

Where an application is made for the court to extend a guardianship order beyond the child’s 18th birthday, the child (if capable) is to give their consent together with that of the guardian whose guardianship is to be extended.  An order extending the guardianship order over a child can contain conditions as to the duration of the order and how it should be carried out as the court deems fit.  A court can vary, modify or revoke an order extending the guardianship over a child beyond their 18th birthday on the application of the child, the parent or guardian, a relative of the child, or after the child marries after their 18th birthday- the child’s spouse. 

Revocation or disclaimer of appointment as a guardian

An appointment of a guardian revokes any earlier appointment including an agreement made in an unrevoked will or codicil made by the same person in respect of the same child unless it is clear that the purpose of the latter appointment is to appoint an additional guardian.

• A person who appoints a guardian under this law may revoke it by a dated instrument duly signed;
  • By the person making the appointment.
  • In the presence of the guardians, two witnesses and each of whom shall attest to the signature at the direction of the person making the appointment.
  • Where a guardian is appointed under a will or codicil, their appointment stands revoked if that will or codicil is revoked.
  • A person appointed as guardian may disclaim the appointment by instrument in writing made within a reasonable time and signed by the person as soon as it is reasonably practicable after knowing that the appointment has taken effect.

Termination of Guardianship Appointment

A guardianship appointment may be terminated by a court order on an application made by;

• Any parent or guardian of the child.
• The child to whom the appointment relates.
• A relative of the child.
• A person acting on behalf and in the best interests of a child.

Where a guardianship order is revoked by the court, the court is to specify who shall have guardianship or legal custody of the child.

Quick FAQ’S

1. What are the exceptional circumstances to be considered if I need to remove the child from the Kenyan jurisdiction as a guardian? Such exceptional circumstances are determined on a case-by-case basis as shall be presented by the parties to a court of competent jurisdiction.
2. What happens where a surviving parent objects to such joint guardianship or where an appointed guardian considers that the surviving parent is unfit to have legal custody of the child? The surviving parent or guardian may apply to the court and the court may make any of the following orders;
   • Decline to make an order confirming the testamentary appointment of the guardian, in which case, the surviving parent shall be the sole guardian.
   • Make an order directing that the guardian shall act jointly with the surviving parent.
   • Make an order appointing a relative of the child or other person willing to act as guardian of the child, to act jointly with the parent or guardian, or both parent and guardian.
   • Make an order that the guardian shall be the sole guardian of the child, with keen regard made to the custody of the child, rights of access by the parent and relatives and payment of financial provision by the parent towards the maintenance of the child, having regard to the means of the parent, as the court may consider reasonable.
3. I would like to apply to be the sole guardian of a child to who I am not related to (the child is not my relative) How do I go about it? The court shall not appoint a person to be the sole guardian for the child if he or she is not a relative of the child unless exceptional circumstances exist to justify such an appointment having regard to the welfare and best interest of the child.
4. What happens if I have a custody or residence order in respect of a child or the care of a child has been entrusted to me by virtue of being a fit person and another person has been granted guardianship over the child?   The person shall act jointly with the surviving parent of a child or with his guardian.  Such surviving parents or guardians are entitled to apply to the Court for an order giving effect to a different arrangement, with regard to the child.
5. What are some of the circumstances in which a court can grant a guardianship order on application by any person? Where the child’ s parents are deceased or cannot be found and the child has no guardian or other person having parental responsibility over the child.  Where the child is one who has been neglected by the person/parent who is charged to provide their daily sustenance and or/maintenance.
6. What are some of the exceptional circumstances that can warrant the extension of a guardianship order?   The child suffers from a mental or physical disability or from an illness that will render them incapable of maintaining themselves or of managing their own affairs and their property without the assistance of a guardian after their 18th birthday. Such other exceptional circumstances with regard to the child as the court may deem proper to warrant the extension of such guardianship orders.
7. Who can make an application for an extension of a guardianship Order? The child, the parent or guardian of the child or a relative of the child.
8.  When should the application for extension of guardianship order beyond 18 years be made? Prior to the child’s 18th birthday.
9. What happens when there are disputes between joint guardians? Any of them may apply to the court for directions in that regard, and the court may make such orders regarding the matters in difference as the court may deem proper.
10. I have observed that the appointed guardian is acting in a way that contravenes the child’s rights and their best interest. What do I do? Any relative of the child, the child or other person acting on their behalf and in the best interest of a child, a person who has parental responsibility over the child, or a person who has been authorized to act jointly with another guardian may apply to the court for directions or determination of any matter affecting the welfare of the child arising from or connected with the exercise of the guardian’s parental responsibility and the court may make such order regarding the matters in contention as it may deem proper.

The Wealth and Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills, and experience on matters of family law including but not limited to children matters spanning domestic and inter-country custodial arrangements, maintenance of the children, litigation, and mediation of these and many other matters affecting the parenting relationship and the rights of the child, Adoptions and Guardianships, Succession & Probate Matters, and Divorce/ Separation and Matrimonial Property matters spanning across the East African Region and other International Regions.  We are practical and innovative in our approach and offer quick turnaround timelines. We will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas.Please click here to download the article

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Disclaimer

This article is for informational purposes only and should not be construed as legal advice.