Mandatory Registration of Guardians appointed under a Will or by Deed

A child is a person under the age of 18 years old. The Rules provide that a guardian would be responsible for the child and/or the child’s estate until the child turns 18. A court order may be obtained to extend the appointment of a guardian beyond the child’s 18th birthday.

Any child is eligible to be placed under guardianship if the child is a resident of Kenya, irrespective of whether or not the child was born in Kenya or is a Kenyan citizen.

The Rules set out important aspects of guardianship and we highlight some of them below.

Eligibility and Appointment of Guardian
Any person appointed as a guardian must be a Kenyan citizen, be of a high moral character and integrity and have no history of convictions on offences related to robbery, drug trafficking, sexual offences and indecent assault causing grievous harm. In addition, a non-relative cannot be appointed as the sole guardian, unless exceptional circumstances apply.

The Rules also recognise that a guardian may be appointed through a court order, will, codicil or deed.

For deeds appointing a guardian of a child in the event of a parent’s death, the Rules set out specific criteria to be met such as having a clause confirming that the guardian being appointed has accepted his appointment, that the appointment comes into effect upon the maker’s death and the deed must be dated, signed by the maker and witnessed by two competent individuals. If a guardian is appointed through a will, the will must comply with the legal requirements of making a will in Kenya.

A parent may also appoint a guardian who upon the parent’s death would act as joint guardian with the surviving parent.

Registration
A key feature under the Rules is the requirement to register any instrument appointing a guardian and the accompanying affidavit with the Children’s Court within 30 days of its execution. Adding or removing a guardian or revoking an appointment also needs to be by way of an instrument and requires registration of the instrument to become effective.

As part of the registration requirement, the Children’s Court also requires a letter from the local chief confirming the parents’ residence, a certificate of good conduct for the guardian and a report from a Children’s Officer following an interview conducted with the guardian. The Children’s Court will set a hearing date and issue its ruling on the appointment of the guardian. Once a favourable ruling is issued, the registration process will be complete.

In cases where the maker of the instrument passes away before fulfilling the requirement of registration, the instrument may be submitted for registration within 30 days of the maker’s death by the deceased’s advocate, the appointed guardian or the surviving parent for the appointment of the guardian to become effective.

Notably, where the maker of the instrument passes away before registration and no other person exercising parental responsibility over the child, then the testamentary guardian shall immediately assume their guardianship duties provided they present a certified copy of the instrument for registration within 30 days from the date of assumption of the role of guardian.

The Rules provide that the registered instruments shall be confidential and not disclosed to anyone without first obtaining a court order.

What This Means for a Parent
If you have previously appointed a guardian for your child through a will, codicil or deed you must now ensure that the relevant instrument making the appointment complies with the Rules and is registered with the Children’s Court within the prescribed times. Failure to register the instrument within the prescribed timelines means the guardian’s appointment will not be effective and he/she will not be able to carry out his/her role and duties lawfully.

What This Means for a Guardian Managing a Child’s Estate
Guardians appointed to manage a child’s estate must be mindful of several obligations such as submitting annual accounts and an inventory of the child’s estate to the Children’s Court on each anniversary of their appointment. A guardian needs to make decisions that are in the best interests of the child and compliance with the legal framework. The Rules impose penalties for breach of duty, including compensating a child’s estate for any loss or damage caused by mismanagement.

Conclusion
Given the new eligibility requirements of a guardian, the content that needs to be set out in the instrument appointing a guardian, the need for a guardian to consent to be appointed, the guardian’s duties when acting for a child’s estate and the mandatory registration requirement, we recommend that persons who have appointed guardians through a deed, will or codicil undertake a review of that instrument and seek advice on whether the instrument requires to be updated or prepared afresh and thereafter undergo the registration process with the Children’s Court. Persons who are guardians must also seek to understand their role and duties so that they can comply with the requirements of the law.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact, Atiq Anjarwalla and Mona Doshi.

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Contributors
1. Stephen Deche – Associate
2. Karam Amin – Trainee Lawyer