The Children (Guardianship) (Practice and Procedure) Rules, 2024

Section 5. Eligibility of a child for guardianship Section Pursuant to Part X of the Act, any child is eligible to be placed under guardianship if the child is a resident of Kenya, whether or not the child was born in Kenya or is a Kenyan citizen.

Section 6. Qualifications for appointment as guardian Section 6(1)(a) is a Kenyan citizen; Section 6(1)(b) is a fit person as defined under section 2 of the Act; Section 6(1)(c) is not a person with mental illness as determined under the Mental Health Act ( Cap. 248 ); and Section 6(1)(d) has not been convicted of any of the offences specified in the Third Schedule to the Act or similar offences. Section 6(2) A person shall not be appointed to be the sole guardian of a child if the person is not a relative of the child, unless exceptional circumstances exist to justify such appointment, having regard to the welfare and best interests of the child.

Section 7. Appointment of a guardian by the Court Section upon application in the specified form as envisaged under section 122 of the Act;

Section 8. Purpose for which a guardian may be appointed Section the person of the child;

Section 9. Modes of appointment of guardian Section by the Court as provided for under rule 8;

Section 10. Exercise of joint guardianship Section 10(1)(a) where more than one guardian is validly appointed to exercise guardianship over the same child; Section 10(1)(b) where the Court appoints a guardian to act jointly with a surviving parent in circumstances envisaged under sections 34 and 123 of the Act; or Section 10(1)(c) where another person is authorized by the Court to act jointly with the guardian of the child. Section 10(2) A testamentary guardian shall act jointly with the surviving parent of the child during the lifetime of the parent unless the surviving parent’s objection to the guardian’s appointment is upheld by the Court.

Section 11. Who may appoint a testamentary guardian Section A testamentary guardian may be appointed by a parent or guardian of the child in accordance with section 124 of the Act.

Section 12. Testamentary guardianship by will Section 12(1) A parent or guardian of a child may make a will appointing any person to be the guardian of the child in the event of such parent’s or guardian’s death. Section 12(2) The appointment of a testamentary guardian under subrule (1) may otherwise be made under a clause in a will or codicil made pursuant to the provisions of the Law of Succession Act. Section 12(3) The making, execution, and attestation of wills or codicils contemplated under this rule shall be in accordance with the law relating to testamentary instruments.

Section 13. Testamentary guardianship by deed Section 13(1) A parent or guardian of a child may make a deed appointing any person to be the guardian of the child in the event of such parent’s or guardian’s death. Section 13(2)(a) be in writing; Section 13(2)(b) be dated and signed by the person making the appointment in the presence of two competent witnesses; Section 13(2)(c) bear the name and signature of the person making the appointment; Section 13(2)(d) bear the names and signatures of the witnesses attesting to the signature of, and at the direction of the person making the appointment; Section 13(2)(e) contain the details of the child and of the person appointed as testamentary guardian; Section 13(2)(f) indicate the place where the deed was made; Section 13(2)(g) express a clear intention to appoint a testamentary guardian for the child upon the death of the person making the appointment; Section 13(2)(h) indicate 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, if any; Section 13(2)(i) contain a clause indicating that the person appointed as testamentary guardian has a...

Section 14. Amendment of testamentary instruments Section 14(1) Subject to the provisions in subrules (2) and (3), an instrument appointing a testamentary guardian may be amended by the maker at any time whether before or after its registration as required under rule 18. Section 14(2) The amendment of a will or codicil appointing a testamentary guardian shall be governed by the law relating to testamentary instruments. Section 14(3) The provisions of rule 14 relating to the procedure for the making of a deed shall apply to the procedure on amendment of deeds under these Rules.

Section 15. Subsequent testamentary instruments Section 15(1) A parent or guardian who has made a testamentary instrument under these Rules may make a subsequent instrument appointing another person either as an additional testamentary guardian, or replacing the guardian initially appointed. Section 15(2)(a) predeceases the appointing parent or guardian; or Section 15(2)(a)(i) predeceases the appointing parent or guardian; or Section 15(2)(a)(ii) becomes incapable of discharging the duties of a guardian; or Section 15(2)(b) where the testamentary instrument earlier made has been revoked. Section 15(3) Subject to the provisions of the law governing testamentary instruments, a subsequent testamentary instrument made under this rule whose purpose, either by express provision or by necessary implication, is to appoint an additional guardian shall not be deemed to have revoked the initial testamentary instrument. Section 15(4) The subsequent testamentary instrument shall contain a reference to the earlier instrument, as well as a statement indicating if the latter appointment revokes the appointment made in the testamentary instrument earlier made. Section 15(5) The form, validity, and...

Section 16. Requirement to register certain instruments Section 16(1) Notwithstanding that an instrument creating a testamentary guardianship has been or is required to be registered pursuant to any other written law, any testamentary instrument made under these Rules shall be presented to the Court for registration within thirty days of its execution. Section 16(2) Where after registration, the parent or guardian makes a subsequent testamentary instrument as contemplated under rule 16(1), the latter appointment shall not take effect until after the registration of the subsequent instrument in accordance with the provisions of rule 18. Section 16(3) A parent or guardian who revokes a testamentary instrument after its registration shall, within fourteen days of its execution present the instrument of revocation for registration as provided for under rule 18. Section 16(4) Where after registration a testamentary instrument is amended pursuant to the provisions of rule 15, the amended instrument shall be presented for registration within fourteen days of its execution. Section 16(5) The Court may for sufficient reason extend the period provided for registration of instruments under th...

Section 17. Procedure on registration of instruments Section 17(1) Instruments for which registration is required under this Part shall be presented for registration at the nearest Court registry where the child ordinarily resides. Section 17(2) An amended instrument prepared as contemplated under rule 15, any subsequent instrument made in accordance with rule 16, and any instrument of revocation made pursuant to rule 20 shall be presented for registration at the Court registry where the initial testamentary instrument was registered. Section 17(3) The instrument shall be presented in person by the guardian or parent who made the instrument or by his or her advocate. Section 17(4) Where the guardian or parent who made the appointment dies before registering the testamentary instrument or any of the instruments listed at subrule (2), 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. Section 17(5) The person presenting any instrument for registration under this Part shal...

Section 18. Custody of testamentary instruments and register Section 18(1) The Court shall maintain a register in the Form No. GR1 set out in the Schedule wherein shall be entered details of instruments presented for registration under this Part. Section 18(2) The Court shall designate a suitable officer to oversee the registration of instruments under this Part, as well as the safe custody of the instruments presented for registration and the register maintained under subrule (1). Section 18(3) All instruments presented for registration under this Part, as well as the register maintained at subrule (1) shall be kept confidential and shall not be disclosed to anyone without the leave of Court. Section 18(4) Where more than one instrument envisaged under this Part relating to the same child or siblings are registered, the instruments shall be kept in one folder. Section 18(5) Subject to subrule (4), the instruments presented for registration under this Part shall be arranged in the order of serialisation and shall be sorted in accordance with the year in which they were registered.

Section 19. Revocation of appointment of a testamentary guardian Section 19(1) The appointment of a guardian by the Court under section 122 of the Act shall revoke any earlier appointment including an appointment made in an unrevoked testamentary instrument, unless, either by express provision or by necessary implication, it can be construed that the purpose of the latter appointment was to appoint an additional guardian. Section 19(2) The appointment of a testamentary guardian shall, subject to the provisions of the law relating to testamentary instruments, be deemed revoked where the parent or guardian makes a subsequent instrument appointing a different person as guardian, unless the subsequent instrument contains an express provision to the effect that the purpose of the latter appointment was to appoint an additional guardian; or unless the Court upon application determines that by necessary implication, the latter appointment was to appoint an additional guardian. Section 19(3) A deed appointing a testamentary guardian may be revoked by an instrument of revocation made in accordance with the provisions of section 128(2) of the Act. Section 19(4) A will or codicil, or a clause...

Section 20. Direction where a subsequent appointment is made by Court Section Where the appointment of a testamentary guardian is revoked by subsequent appointment of a different person as guardian by the Court, the Court shall direct that an entry be made to that effect in the register kept under the provisions of rule 19(1).

Section 21. Notice of revocation and fresh appointment of guardian Section 21(1) An appointing parent or guardian, or the person appointed as testamentary guardian shall, where the testamentary instrument is otherwise revoked or invalidated as envisaged under rule 20(5) prepare and file a notice of revocation at the Court registry where the instrument was registered. Section 21(2) The notice of revocation shall be in Form No. GR2 set out in the Schedule. Section 21(3) The appointing parent or guardian may prepare and register a subsequent testamentary instrument upon lodging the notice of revocation under subrule (1). Section 21(4) Where no fresh testamentary instrument as envisaged under subrule (2) is filed, the Court shall, upon the lapse of three months after the registration of the notice of revocation summon the appointing parent or guardian and the testamentary guardian, and enquire on the suitability and willingness of the parties to proceed with the arrangement to establish testamentary guardianship. Section 21(5) Where the revocation or invalidation under rule 20(5) occurs after the assumption of guardianship, the testamentary guardian, Secretary, or other person may appl...

Section 22. Procedure where the Court revokes a testamentary instrument Section where the revocation is made before the death of the appointing parent or guardian, the Court may direct the appointing parent or guardian to make and register a fresh testamentary instrument within the period specified; or

Section 23. Assumption of guardianship by a testamentary guardian Section 23(1) A testamentary guardian appointed under a testamentary instrument that has been duly registered by the Court under these Rules shall assume the role of a guardian of the child immediately upon the death of the appointing parent or guardian. Section 23(2) Notwithstanding the provisions of subrule (1), a testamentary guardian shall assume the role of guardian of the child immediately upon the death of the surviving parent, or appointing parent or guardian in cases where there is no other person exercising parental responsibility over the child. Section 23(3) Where a testamentary guardian appointed under a will or deed that has not been registered pursuant to these Rules assumes the role of guardian under subrule (2), the testamentary guardian shall present a certified copy of the will or deed for registration within thirty days from the date of assumption of the role of guardian.

Section 24. Determination of validity or enforcement of a testamentary instrument Section 24(1) Where a question arises as to the validity or the enforcement of a testamentary instrument, the Court shall determine the question having regard to the best interests of the child. Section 24(2) Any question relating to the validity of a will or codicil appointing a testamentary guardian shall be determined in accordance with the provisions of the law relating to testamentary instruments.

Section 25. Applications under this Part Section 25(1) Applications under this Part, other than applications to revoke or determine the validity of testamentary instrument, shall be by way of notice of motion in Form No. GR3 set out in the Schedule supported by an affidavit setting out the factual circumstances and grounds upon which the application made. Section 25(2) The application shall be registered as a “Children’s Miscellaneous Application,” unless where there are existing proceedings before the Court relating to the same child, in which case the application shall be filed in the pending proceedings.

Section 26. Application for appointment as guardian Section by a notice of motion application filed in the pending or previous proceedings in the Form No. GR3 set out in the Schedule;

Section 27. Contents of the affidavit Section 27(1)(a) the child only; in which case the applicant shall also file an affidavit of fitness substantially in the Form No. GR6 set out in the Schedule; Section 27(1)(a)(i) the child only; in which case the applicant shall also file an affidavit of fitness substantially in the Form No. GR6 set out in the Schedule; Section 27(1)(a)(ii) the estate to which the child is a beneficiary, or the estate of the child; in which case the application shall also be accompanied by a verifying affidavit substantially in the Form No. GR7 set out in the Schedule; or Section 27(1)(a)(iii) both the child and the estate of the child; in which case the application shall be accompanied by affidavit of fitness of the applicant as well as a verifying affidavit in the specified form; Section 27(1)(b) the name and a statement indicating whether the child is male, female or intersex, and where the guardian intends to reside with the child; Section 27(1)(c) the last known address of a parent of the child, stating whether or not the parent is still alive, and whether the parental responsibility of the parent has been terminated; Section 27(1)(d) where the child does...

Section 28. Application for leave to remove a child from Kenya Section 28(1) A guardian who is not the father or mother of a child shall not remove the child from Kenya without obtaining the leave of the Court. Section 28(2)(a) by a notice of motion application filed in the pending or previous proceedings in Form No. GR3 set out in the Schedule; Section 28(2)(a)(i) by a notice of motion application filed in the pending or previous proceedings in Form No. GR3 set out in the Schedule; Section 28(2)(a)(ii) supported by an affidavit in Form No. GR4 set out in the Schedule stating the factual circumstances and grounds on which the application is made; Section 28(2)(b) by a notice of motion application made in the same proceedings in Form No. GR3 set out in the Schedule; Section 28(2)(b)(i) by a notice of motion application made in the same proceedings in Form No. GR3 set out in the Schedule; Section 28(2)(b)(ii) supported by an affidavit in Form No. GR4 set out in the Schedule stating the factual circumstances and grounds on which the application is made; Section 28(2)(c) by way of originating summons in Form No. GR5 set out in the Schedule; Section 28(2)(c)(i) by way of originating sum...

Section 29. Provisions governing filing of other applications Section by a surviving parent under section 34(3) of the Act for the revocation of appointment of a testamentary guardian;

Section 30. Requirement for leave of Court Section 30(1) An application under rule 30(i) shall be made subject to the grant of leave of the Court. Section 30(2) The leave may be sought as part of the substantive application.

Section 31. Summons to be accompanied by notice to enter appearance Section 31(1) An originating summons filed under this part shall be accompanied by a notice to enter appearance in Form No. GR8 set out in the Schedule. Section 31(2) The Court shall endorse the notice to enter appearance and issue copies thereof to the applicant within three days of filing.

Section 32. Recourse where other proceedings are before another court Section be filed before the Children’s Court; and

Section 68. Dispute between guardians Section 68(1) Any of the joint guardians, or a surviving parent or other authorized person exercising joint guardianship may, where there is a dispute between them file an application in accordance with the provisions of these Rules for the determination of the matters in difference. Section 68(2) The Court may direct that an application filed under subrule (1) be disposed of orally, or by way of written submission, or in a summary manner. Section 68(3) In determining an application under this rule, the Court shall direct the parties to first seek an amicable resolution of the dispute through mediation or other suitable alternative dispute resolution mechanism. Section 68(4) Upon determination of an application under subrule (1), the Court may give such directions or make such orders regarding the matters in difference or contention as it may deem proper having regard to the best interest of the child.

Section 69. Failure or inability to act by appointed guardian Section 69(1)(a) fails or neglects to discharge his or her duties as guardian of the child; Section 69(1)(a)(i) fails or neglects to discharge his or her duties as guardian of the child; Section 69(1)(a)(ii) files a disclaimer of appointment in accordance with rule 71; or Section 69(1)(a)(iii) becomes incapable or unfit to exercise proper care and guardianship of the child or the child’s estate; or Section 69(1)(b) fails or neglects to discharge his or her duties as guardian of the child; or Section 69(1)(b)(i) fails or neglects to discharge his or her duties as guardian of the child; or Section 69(1)(b)(ii) becomes incapable or unfit to exercise proper care and guardianship of the child or the child’s estate, Section 69(2) The application contemplated under subrule (1) shall be commenced and disposed of in accordance with the procedure set out in these Rules. Section 69(3) An application filed under subrule (1) shall name the guardian or testamentary guardian, and the person proposed to be appointed as the new guardian as parties. Section 69(4) In determining an application under this rule, the Court shall summon the gu...

Section 70. Form of disclaimer of appointment Section 70(1) A person appointed as a guardian under sections 122 and 123 of the Act may disclaim the appointment by instrument made in writing in the Form No. GR15 set out in the Schedule. Section 70(2)(a) been appointed as such guardian by the Court without his or her knowledge or consent; or Section 70(2)(b) been appointed as guardian in proceedings to which he or she was neither a party nor was served; and Section 70(2)(c) is unwilling or unable to effectively discharge the duties of a guardian of the child or the child’s estate.

Section 71. Disclaimer of appointment to be filed in Court Section 71(1)(a) made as soon as it is reasonably practicable after the person disclaiming having known that the appointment has taken effect; Section 71(1)(b) dated and signed by the person disclaiming; and Section 71(1)(c) presented for registration withing seven days of its execution. Section 71(2) The disclaimer of appointment shall be presented for registration at the Court registry and in the file where the appointment of the guardian was made.

Section 72. Directions upon filing of disclaimer of appointment Section 72(1) Upon the filing of the disclaimer of appointment, the Court shall immediately list the case for mention and cause notice to be served upon persons who were party to the proceedings leading to the appointment as well as upon the person disclaiming. Section 72(2)(a) discharging the person disclaiming from being a guardian of the child either immediately or after a specified period of time; Section 72(2)(b) appointing a fit person as guardian of the child or the child’s estate; Section 72(2)(c) on custody and care of the child in the meantime before the appointment of a new guardian.

Section 73. When disclaimer can take effect Section A disclaimer of appointment filed under rule 71 shall not have effect until after the Court has issued directions under rule 73.

Section 74. Extension of guardianship beyond the child’s eighteenth birthday Section 74(1) The Court may, where exceptional circumstances exist make an order extending the period of a guardianship order issued in terms of rule 65(1) beyond the child’s eighteenth birthday. Section 74(2)(a) that the child suffers from mental or physical disability, or from illness that will render him incapable of maintaining himself, or managing his own affairs or the child’s property without the assistance of a guardian; Section 74(2)(b) such exceptional circumstances as the Court may deem proper having regard to the child.

Section 75. Who may apply for extension of guardianship Section 75(1)(a) the child; Section 75(1)(b) parent or guardian of the child; Section 75(1)(c) a relative of the child; or Section 75(1)(d) the Secretary. Section 75(2) The provisions of rule 27 shall apply mutatis mutandis to the procedure for filing an application under this rule.

Section 76. Orders of Court upon application for extension of guardianship Section 76(1)(a) such conditions as to the duration of the order; Section 76(1)(b) directions as to how the order shall be carried out; Section 76(1)(c) conditions that must be complied with; and Section 76(1)(d) such incidental, supplemental, or consequential provisions as the Court thinks fit. Section 76(2) The Court shall not make an order extending the duration of guardianship under subrule (1) without the consent of the guardian whose appointment is required to be extended, as well as the consent of the child, if the child can give such consent.

Section 77. Power of Court to vary, revoke extension orders Section 77(1) The Court may at any time vary, modify, or revoke any extension order made under rule 77. Section 77(2)(a) the child; Section 77(2)(b) parent or guardian of the child; Section 77(2)(c) a relative of the child; Section 77(2)(d) the Secretary; or Section 77(2)(e) a spouse, where the child married after the eighteenth birthday

Section 78. Grounds for termination of guardianship Section the guardian dies;

Section 79. Secretary to set down case for mention where guardian dies Section 79(1) Where guardianship is terminated because of the death of the appointed guardian, the Secretary shall immediately set down the case for directions before the Court. Section 79(2) On the date set for directions under subrule (1), the Court shall make such orders as it thinks appropriate in respect of the custody and care of, or parental responsibility over the child.

Section 80. Consequences of termination of guardianship Section 80(1) Unless the Court otherwise orders or directs, where guardianship is terminated for the reason that the child has attained the age of eighteen years, the child shall be entitled to take personal responsibility over his or her affairs and any money or property lawfully due to them and, in the case of any other form of property or investment other than money, the property or investment shall be transferred into his or her name. Section 80(2) Where the Court orders the termination of a guardianship relating to the management of the child’s estate, the former guardian shall promptly deliver the remaining assets comprising the estate to the child along with a final account:

Section 33. Service of court process Section Unless otherwise ordered by the Court, the provisions of Order 5 of the Civil Procedure Rules shall apply to the service of court process under these Rules.

Section 34. Secretary to be party Section The Secretary shall be made a party to all proceedings and shall be served with all process under these Rules.

Section 35. Service of notice to enter appearance Section 35(1)(a) the person proposed to be appointed as guardian; Section 35(1)(b) the Secretary; Section 35(1)(c) a parent or guardian of the child, or any person who is liable to contribute to the maintenance of the child; Section 35(1)(d) all persons who are party to the proceedings; and Section 35(1)(e) any other party as the Court may direct. Section 35(2) Service under this rule shall be effected within ten days from the date that the applicant is issued with endorsed notices by the Court pursuant to rule 32(2).

Section 36. Service where application is made in other proceedings Section 36(1)(a) all persons who are party to the application; Section 36(1)(b) the Secretary; Section 36(1)(c) a parent or guardian of the child, or any person who is liable to contribute to the maintenance of the child; Section 36(1)(d) the guardian ad litem , if any; Section 36(1)(e) the other parties to the pending or previous proceedings whom the Court deems necessary; Section 36(1)(f) any other party as the Court may direct. Section 36(2) Service of application under this rule shall be effected within ten days from the date of filing.

Section 37. Who may serve Section 37(1) Service of process under these Rules may be effected by the applicant or by a duly authorized process server. Section 37(2) The applicant or the process server as the case may be shall, immediately after effecting service under rules 36 and 37 file a certificate of service in the Form No. GR9 set out in the Schedule.

Section 38. Appearance Section A party served with a notice to enter appearance under rule 36 may, within seven days of service enter an appearance in Form No GR10 set out in the Schedule.

Section 39. Form of reply to the originating summons Section 39(1) A party who has been served with the notice to enter appearance and the originating summons pursuant to rule 36 shall, whether or not that party has entered an appearance file and serve an affidavit in reply to the application. Section 39(2) The affidavit shall be filed and served within fourteen days from the date of service of the notice to enter appearance, and shall be served upon all persons named as party to the application. Section 39(3) The affidavit in reply shall indicate whether or not the respondent opposes the prayers set out in the originating summons and the reasons thereof.

Section 40. Reply to applications Section A party served with an application pursuant to rule 37 shall, within fourteen days of service file and serve a replying affidavit indicating if the party opposes the application and if so, the reasons thereof.

Section 41. Amendment of pleadings Section The provisions of Order 8 Rule 4 of the Civil Procedure Rules shall apply to amendment of the pleadings under these Rules.