Child Guardianship Application Steps in Kenya

Introduction

The purpose of this article is to enable the reader to understand child guardianship, applicable laws as well as the process of acquiring guardianship in Kenya. A guardian is broadly defined under the Children Act, 2001 as any person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the provisions of the Act.

Applicable laws

The Constitution and the Children Act are the laws that govern matters relating to guardianship in Kenya. Article 53(2) of the Constitution stipulates that the child’s best interest is of paramount importance. A child’s best interest is majorly considered by a court seized with the question of guardianship. Additionally, the Children Act provides that a guardian appointed under the Act need not be a Kenyan citizen or resident in Kenya. On the same note the Act gives the circumstances under which the court may appoint a guardian on application by an individual. These circumstances are:

1. where the child’s parents are no longer living, or cannot be found;
2. where the child has no guardian and there is no any other person who has parental responsibility for him; and
3. where the child is displaced within the meaning of the Act.

When making an application for guardianship, the application may be based on several grounds including the fact that any person who has assume parental responsibility is unable to provide care, protection and maintenance over the child among others.

Jurisdiction

On which court to approach on matters of guardianship, The Guardianship of Children (Practice and Procedure) Rules, 2002 refers to section 3 of the Children Act that establishes the Children’s Court as the court that has jurisdiction to hear and determine applications for Guardianship.

When approaching this court, the Applicant is required to satisfy the following conditions in order to get a guardianship order.

1. That the applicant is ready and willing to assume parental responsibilities over the said minor;
2. That the applicant knows what entails having parental responsibilities over the minor;
3. That the applicant is well able to take care and provide for the Minor;
4. That the applicant has willingly consented to being appointed Guardian for the minor;
5. That the applicant is well aware of the duties, roles and responsibilities he/she will play upon being appointed; and
6. That the child is a minor.

Procedure

The procedure for applying for a guardianship order is by way of an application in the form of an originating summons accompanied by a supporting affidavit sworn by the applicant together with this, the applicant must also attach the following documents:

1. A copy of the child’s birth certificate;
2. The Applicant’s identification documents;
3. The deceased parent’s death certificate if any;
4. Proof of ability to take care of the child including proof of earning;
5. A consent from the grandfather;
6. School reports if the child is a school-going child; and
7. Any other documents demonstrating fitness of the you to act as a guardian 

For more information or assistance with guardianship in Kenya, contact us on info@mmsadvocates.co.ke.

By Dennis Odeny.