In re GC [2023] KEHC 26366 (KLR)

In re GC (Miscellaneous Civil Case E010 of 2023) [2023] KEHC 26366 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26366 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Miscellaneous Civil Case E010 of 2023

JR Karanja, J

December 7, 2023

IN THE MATTER OF ARTICLE 52 OF THE KENYA CONSTITUTION, 2010 IN THE MATTER OF CHILDREN’S ACT CAP 141 LAWS OF KENYA AND IN THE MATTER OF CUSTORY CAR, CONTROL AND GUARDIANSHIP OF GC BK

In the matter of

BKT

Applicant

Ruling

1. The ex-parte notice of motion dated 5th September 2023 and filed herein by the Applicant, BKT, seeks the basic order that the Applicant be appointed the legal guardian of a Minor, GC.It is essentially brought Under Sections 81, 82, 102, 113 and 118 of the Children Act and is founded on the grounds that the applicant and the minor are siblings, the Applicant being a biological brother of the minor and both orphaned by the demise of their parents. That, for the purposes of the minor’s education and proper care as well as responsibility it is necessary that the applicant be appointed the sole legal guardian of the minor.

2. The children officer’s report filed in court on 5th December 2023 by children officer, Nandi Central/ Chemwei, Mr. Nickson Ogechi is favourable for a guardianship order being made in favour of the Applicant having determined that the circumstances of the matter do render the minor being in need of care and protection.Part VII of the Children Act which encompasses section 81 and 82 of the Act generally provides for custody and maintenance of minors Under section 81(2) of the Act, a person not having legal custody of a child but has care and control of the minor has a duty to safeguard the interests and welfare of the minor, while under Sub section (3), a person not having legal custody of a child but has actual custody shall be deemed to have care and charge of the child and shall be under a duty to take all reasonable steps to safeguard the interests and welfare of the Minor/ Child.

3. Appointment of guardian or guardianship is provided for under Part VIII of the Act and section 102(1) of the Act provides that:“for the avoidance of doubt in this part, “guardian” means a 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 this Act.”

4. The powers of the court to appoint a guardian are provided under section 105 of the Children Act to the effect that on the application of any individual, where the child’s parents are no longer living and the child has no guardian nor other person having parental responsibility for him the court may appoint a guardian.The circumstances of this case viewed against the grounds in support of the application are suitable enough for a guardianship order being made in favour of the Applicant as the minor’s eldest brother with whom the minor has been living at their [Particulars withheld] house situated in Nandi County since the demise of their parents.The application is therefore allowed in terms of prayer (2) of the notice of motion.Ordered Accordingly.

DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023J. R. KARANJAH,JUDGE