Guardianship in Kenya: Discover key insights from the Children Act, 2022, on appointing guardians and ensuring children’s rights. Learn your legal options today!

In William Shakespeare’s tragedy play, Hamlet, written between 1599-1601, Prince Hamlet pensively asks “for in that sleep of death, what dreams may come?” In asking this, Hamlet seeks to symbolically point out the uncertainty that surrounds death. Centuries later, we still find ourselves in Prince Hamlet’s reality, engulfed by worry and anxiety of what will or may happen after death: to our property, livestock, children, parents and friends.

Guardianship in Kenya: Key Insights from the Children Act, 2022

Today, F.M. Muteti & Co. Advocates delves into how the Guardianship law in Kenya relieves your worry by giving you control of deciding who should take care of your children and the property they are entitled to, if you pass on before they attain the age of majority.  The Children Act, Cap 141 Laws of Kenya (“the Act”), provides that you can appoint a guardian who will take care of your children and the property you may want to devolve to them after you pass on.

Who is a guardian?

Section 122 (1) of the Act defines a guardian as a person appointed by will or deed by a parent of a child or by an order of Court to assume parental responsibility over a child on the death of the parent of the child either alone or jointly with the surviving parent of the child. Additionally, the Act provides that a guardian in respect of a child in Kenya must be a Kenyan Citizen, however the child need not be a Kenyan Citizen.

How do you appoint a guardian?

Arising from the definition above, the Act prescribes that a guardian may be appointed either by a parent or by the Court. In the case of parental appointment of a guardian, the same MUST be through either a Deed or by a Will which must be signed and witnessed. 

At F.M. Muteti & Co. Advocates, our vibrant Children & Family Law Department guides our Clients in preparing, signing and witnessing either Deeds or Wills setting out our Clients’ wishes with respect to how they want their children to be taken care of and by who. 

Can you appoint a guardian even if the other parent survives you?

Section 123 of the Act further provides that even in the event that both parents of a child are alive, either the father or the mother of the child may appoint a guardian who shall assume responsibility over the child jointly with the surviving parent of the child.

It is therefore important to note that the Guardianship law in Kenya allows you to appoint a guardian for your child even if you are in a subsisting marriage and that guardian shall have parental responsibility jointly with the surviving spouse.

How can you protect your child’s property after your death?

Should you wish that any of your property be given to your child after you pass on, your appointed guardian has power to take care of that property before your child attains the age of majority.

Section 122 (9) of the Act provides for the powers of a guardian with respect to the Estate of a child as follows:-

• The power and responsibility to administer the estate of the child and, in particular, to receive, recover and invest, the property of the child in his own name in trust for, and for the benefit of, the child;

• The power to create a Trust Fund for the child in respect to any estate of the child;

• The duty to take all reasonable steps to safeguard the estate of the child from loss or damage; and

• The duty to prepare and submit accounts and inventory in respect of the child’s estate on every anniversary of the date of his or her appointment as such to—

• the parent or custodian of the child;
• the Secretary of the Children’s Services;
• the Court; and
• such other person as the Court may direct; or(e)the duty to produce any account or inventory in respect of the child’s estate when required to do so by the Court.

Decide to appoint your child’s guardian today?

The best children’s lawyers in Kenya at F.M. Muteti & Co. Advocates, once again recognize and appreciate Hamlet’s sad reality. However, we also take pleasure in safeguarding your child’s future and your peace of mind. We shall passionately take you through the legal process of drafting either the deed or will that sets out your wishes in respect of your child and your child’s property in the unfortunate event that you pass on. Contact us today to schedule a consultation and learn how we can support you.

Disclaimer: The information provided in this Guardianship in Kenya article is provided for information purposes only and does not constitute a legal advisory. We advise prospective Clients to get in touch with us for more comprehensive and contextualized legal advice.