GUARDIANSHIP IN KENYA

Guardianship is a legal responsibility given to an individual or institution to make decisions and care for a child in the child’s best interest. A guardian is a person appointed by the parent (through a will or a deed) or a court to assume responsibility over a child after the death of a parent either alone or together with the surviving parent to the child. A guardian is appointed in the manner prescribed by the Section 122 of the Children’s Act, 2022 over a child resident in Kenya whether they were born in Kenya or not. A guardian may be appointed over a child and an estate which a child is a beneficiary or both. There are three instances when the court can appoint a guardian:

1. Testamentary guardianship: Under Section 124, a parent may by deed or will appoint another person to assume responsibility over their child as a result of the parent’s death or incapacity to provide for the child.
2. Appointment by court: Under section 125, a court of law may appoint a guardian upon an application being made in the prescribed manner where a child’s parents are deceased or untraceable, and the child has no guardian or other person exercising parental responsibility over the child.
3. Customary guardianship: Section 126, the Court may appoint a guardian on application by any person in accordance with the customs, culture or tradition of a specific community.

 How to obtain Guardianship in Kenya.

The Act stipulates that the application shall be made through originating summons and a supporting affidavit sworn by the applicant. Section 122 provides that guardianship can be obtained by following process:

Filling an application whereby an individual must file an application in the Children’s Court. This application should demonstrate the need for guardianship and how it is in the child’s best interest. The court assesses the applicant’s suitability, including financial stability, personal character, health, and ability to provide a secure environment for the child. The court may request reports from the Director of Children’s Services or other child welfare organizations. It could also involve interviews with the child (if mature enough), the child’s family, and any relevant parties. Based on the gathered information, the court decides if guardianship is in the child’s best interests. If so, a court order is granted establishing the guardianship.

The court considers several factors when granting guardianship, such as:

1. The Child’s Best Interests is the primary consideration and is always the child’s welfare, including emotional, educational, and health needs.
2. The Guardian’s Suitability whereby the guardian must demonstrate good moral character, financial stability, and the ability to meet the child’s needs.
3. Child’s Relationship with the Guardian:  The court assesses the relationship between the child and the prospective guardian, favoring guardians who have already been actively involved in the child’s life.
4. Child’s Age and Preferences whereby for older children, the court considers their views and opinions regarding the proposed guardianship. If one or both biological parents are still living, their rights are considered. Guardianship does not terminate parental rights, so parents may retain a degree of involvement, depending on the specific case.

Who Can Be Granted Guardianship?

 Under Kenyan law, guardianship can be granted to extended family members, such as grandparents, aunts, are often preferred, especially if the child has an established relationship with them. It may also be granted to Individuals not related to the child, provided they are Kenyan citizens and the court is convinced it’s in the child’s best interest. In cases where no suitable individual is available, institutions or child welfare organizations may be appointed as guardians, although this is usually a case of last resort.

Differences Between Guardianship and Adoption

While both guardianship and adoption involve taking responsibility for a child, they have significant legal differences:

1. Adoption is a permanent arrangement, creating a legal parent-child relationship with full parental rights and responsibilities. Guardianship, however, is temporary or conditional; it does not terminate the biological parents’ rights, and guardianship may end when the child reaches adulthood or upon court termination.
2. Adoption is generally irrevocable once granted, except under exceptional circumstances. Guardianship, can be modified or revoked by the court if circumstances change, especially if the child’s best interests would no longer be served by the arrangement.
3. In adoption, adoptive parents gain full legal rights as if they were the child’s biological parents, while in guardianship, guardians have limited rights and remain under court supervision.
4.  An adopted child is entitled to inherit as a biological child would. In guardianship, unless specifically included in a will or estate plan, a child under guardianship does not automatically inherit from the guardian.
5. Guardianship can only be granted to a Kenyan citizen but adoption can be granted to both Kenyan citizens and foreigners provided they meet the requirements of the Act.

In conclusion, guardianship in Kenya is essential to protecting the child’s welfare. The legal system has evolved through times and adopted a more child friendly approach in addressing guardianship. It is a flexible, child-focused arrangement that prioritizes the child’s welfare, allowing the court to adapt based on the child’s needs and circumstances.

For more information or assistance in guardianship or adoption in Kenya contact us on info@aowangaadvocates.com or +254794600191

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