An Executive Summary of the Kenya Children (Guardianship) (Practice and Procedure) Rules 2024

By Legal Notice No. 159 of 4th October 2024, the Hon. Chief Justice gazetted the Children (Guardianship) (Practice and Procedure) Rules, 2024 (“the Rules”) to guide the procedures involved in the guardianship of children under the Kenya Children Act and ensure that the best interests of the Child are upheld.

We discuss the salient features below:

 

Application of the Rules

The Rules are applicable in the following matters:

• Appointment of a guardian by the Court in respect of a child, a child’s estate or both.
• Testamentary guardianship.
• Submission of accounts and inventory in respect of a child’s estate.
• Termination of guardianship.
• Application by a surviving parent for revocation of appointment of a testamentary guardian.
• Application by relatives of a deceased parent for orders in the best interests of the child where they deem that the surviving parent is unfit to exercise parental responsibility for the child.
• Application by guardian to remove the child from Kenya.
• Application to determine whether a surviving parent is fit to act as guardian of the child.
• Application by a surviving parent or testamentary guardian for revocation of joint guardianship.
• Application by a surviving parent or guardianship for joint guardianship.
• Application of extension of appointment of guardian beyond the child’s 18th birthday.
• Application to solve disputes between guardians on the welfare of the child.
• Application to determine the validity of a testamentary instrument.
• Application for orders to redress neglect or misapplication of assets by guardian of a child’s estate.
• Application for any other procedural matter relating to guardianship that is envisaged under the Act and the Rules.

 

Who may be appointed as a Guardian?

All children, resident in Kenya, are eligible for guardianship whether the child was born in Kenya or outside Kenya.

A guardian may be appointed in respect of a child, the estate of a child or the estate to which a child is a beneficiary or for both the child and estate.

The qualities of a guardian under the Rules are:

• Be a Kenyan citizen.
• A person in respect of the Court is satisfied is of high moral character and integrity, and able to give proper care and guardianship of a child (otherwise known as a fit person).
• A person who is not mentally ill as defined under the Mental Health Act.
• A person who has not been convicted of the offences of robbery, indecent assault involving the infliction of grievous bodily harm, indecent assault on a person under the age of 16 years, any offence related to drug trafficking, any offence related to dealing in or smuggling of or possession of ammunition, firearms, explosives or armament, any offence relating to exchange, control, corruption, extortion, fraud, forgery or uttering involving amounts of more than Kenya Shillings fifty thousand or any conspiracy or incitement to commit or an attempt to commit and any offence relating to trafficking in persons.

 

Testamentary Guardianship

• It occurs where either parent of a child appoints a person to be guardian of the child after the death of that parent. The guardian of the child may also appoint another person to act on his/her behalf as the guardian of the child upon death.
• The appointment of a testamentary guardian by deed is valid if:
• the deed is in writing
• it is dated and signed by the person making the appointment in the presence of two competent witnesses
• bears the name and signature of the person making the appointment
• bears the names and signatures of the witnesses attesting to the signature of the person making the appointment
• contains the details of the child
• contains details of the person appointed as testamentary guardian
• indicates the place where the deed was made
• expresses a clear intention to appoint a testamentary guardian for the child upon the death of the person making the appointment
• indicates whether there has been previous appointment of a guardian in respect of the same child, and whether or not the appointment revokes a previous appointment which may have been made
• contains a clause indicating that the person appointed as testamentary guardian has accepted the appointment
• is made at the time when the appointing guardian or parent is competent to make the deed; and
• indicates whether there is any surviving parent or guardian of the child other than the person making the deed.

• Where the appointment of the testamentary guardian is by a will, it is valid if it is made by a written will and the will is made, executed and attested in accordance with the law relating to testamentary instruments.
• A testamentary guardian assumes the role of guardian immediately upon death of the appointing parent or guardian.
• A person appointed as a guardian may apply for a disclaimer of the appointment as soon as they get notice of the appointment.

 

Registration of testamentary instruments in Court

• It is required that all testamentary instruments creating testamentary guardianship shall be presented to the Court for registration within thirty days of its registration at the nearest Court registry where the child ordinarily resides.
• The Court may for sufficient reason extend the period for registration.
• Any amendment testamentary instruments are required to also be registered in the Court where the initial instrument was registered.
• Where the guardian or parent who made the appointment dies before registering the testamentary instrument or an amendment testamentary instrument, the instrument may be presented for registration either by the deceased guardian’s or parent’s advocate having custody of the instrument; or by the appointed testamentary guardian, surviving guardian, or surviving parent within thirty days of the death of the maker.

 

Application for leave to remove a child out of Kenya

Any person that is not the father or mother of a child is not allowed to remove a child from Kenya without the permission of Court.

In determining an application by a guardian to remove a child out of Kenya, the Court are guided by:

• the urgent needs of the child at the time that the application is made
• the need to protect the child from child trafficking and other harmful practices; and
• the best interests of the child.

Where permission of Court is granted, the guardian is required to produce the child in court upon return to Kenya.

 

Service and Pre-Hearing Processes

The provisions of the Civil Procedure Rules, 2010 and the Civil Procedure (Amendment) Rules, 2020 in respect of service and amendment of pleadings are applicable. This means service may be effected through hand delivery, post mail, email address, WhatsApp, among others.

The salient features are that:

• • The notice to enter appearance shall be served together with the Applicant’s pleadings.
  • The Secretary of Children’s Services must be made a party in all proceedings.
  • The Applicant must serve the pleadings within ten (10) days of receiving the endorsed copies from the Court.
  • Where there the application is made in ongoing proceedings, service shall be within ten (10) days of filling.
  • Service shall be through the Applicant or an authorized court process server who shall then file in court the certificate of service.
  • The respondent/s are required to file and serve an affidavit in response to the application stating whether they oppose issuance of the orders sought within 14 days of service.

 

• Pleadings close seven days after the filing of the replying affidavit or fourteen days after service of the notice to enter appearance on all parties to the application.

Hearing Processes

• The Court will convene a pre-trial conference within seven days of close of pleadings and notify parties.
• If the matter is uncontested, the court may consider the matter and issue final orders.
• If the matter proceeds, the court will reserve a hearing date and attendance is restricted to the Child, the other parties and their Advocates on record only.
• If a party fails to attend the hearing, the Court will proceed to determine the application and make orders as it deems fit.
• Where the child is able and willing to participate, the Court shall allow and facilitate such participation in the best interests of the child.
• Where the child is not attending the proceedings, the court shall record the reasons as part of the record.
• Proceedings regarding guardianship shall be concluded within sixty (60) days from the date of filing the case unless there are exceptional circumstances and record the exceptional circumstances or reasons that justified the extension, indicate in the proceedings the period of extension and proceed to hear the case on priority basis.

 

Appointment of a guardian in respect of the estate of a child

• The guardian is required to execute a bond in a sum to be determined by the Court to diligently execute the duties of guardian including produce in court within 3 months of appointment, a full inventory of the estate to which the child is a beneficiary, give effect to court orders, among others.
• If the guardian fails to perform the duties diligently, the court may discharge him from such position and appoint another guardian, order for refund of the misappropriated funds, among others depending on the circumstances of the breach.
• Where the estate of a child is to receive money through a judgment or decree of Court, the money shall be deposited in an interest earning account for withdrawal only under an order of the Court.

 

Conclusion

The Rules represent a significant advancement is making the processes and procedures of appointment of guardians of children seamless in efficient disposal of court proceedings.

Please note that this is an executive summary of the Rules and is intended to provide general information. It should not be taken as legal advice. For specific legal concerns or situations, clients should consult with a lawyer from B M Musau & Company, Advocates LLP directly.