In re Guardianship of Y.J.K. and N.C.K. (Minors) - Ex parte P.J.K.

High Court of Kenya

21 February 2020

EMEdward M. Muriithi

1,761 words in judgment

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The bottom line

When parents are missing or deceased, the High Court can appoint joint guardians, provided the children's best interests are met.

What this practically means

Executive summary

The High Court, Family Division, determined an Originating Summons dated 29th October 2019 in which P.J.K., the second wife of the late J.K.K. under Kalenjin customary rites, sought guardianship of her step-children Y.J.K. (16) and N.C.K. (13). The children's mother, E.C., the deceased's first wife, left home in February 2012 and has not been traced despite searches; the applicant has cared for and educated the children since then. The application was supported by a family memorandum of understanding of 31st August 2019, a letter from the area chief, and confirmation from the children's department of no objection. The court heard the children pursuant to section 4(4) of the Children Act; they consented to the appointment of their step-mother but jointly with their uncle D.K., the deceased father's brother. D.K. confirmed on oath his awareness of guardianship duties and consented, as did the children's adult elder brother, C.K.K., by affidavit. Relying on section 105, which permits appointment of a guardian where the parents are dead or cannot be found and the child has no other person with parental responsibility, the court found the mother untraceable and the applicant fit and proper. It appointed P.J.K. and D.K. as joint co-guardians over each child with parental responsibility and powers over the estate and person of the child, under sections 102 and 109, to lapse at age 18 unless earlier revoked or extended under sections 106 and 107. Costs were in the cause. The applicant appeared in person.

Key legal issues

Whether the court has power to appoint a guardian where the mother cannot be found and the father is deceased

Holding

Yes, under section 105 of the Children Act the court may appoint a guardian on the application of any individual where the parents are dead or cannot be found and the child has no guardian or other person with parental responsibility.

Reasoning

The court traced the statutory power in section 105, found the father deceased and the mother missing since 2012 with searches bearing no fruit, heard the children's views as required by section 4(4), obtained consents from the proposed co-guardian, the applicant and the children's adult elder brother, and was satisfied the applicant had cared for and educated the children since 2012.

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Whether joint guardianship with the children's uncle could be granted at the children's request

Holding

Yes; the court appointed the applicant and D.K., the deceased father's brother, as co-guardians, honouring the children's expressed wish for joint guardianship.

Reasoning

The children, heard under section 4(4), agreed to the step-mother's appointment but jointly with their uncle D.K. The uncle confirmed on oath his awareness of the duties of guardianship and consented; the applicant did not object to joint guardianship. The court therefore appointed both as co-guardians with parental responsibility and powers over the estate and person of each child.

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Legal principles established

The court may appoint a guardian where the child's parents are dead or cannot be found and the child has no other person with parental responsibility.
In any matter of procedure affecting a child, the child must be accorded an opportunity to express an opinion, which shall be taken into account having regard to age and maturity.
A guardianship appointment lapses at 18 unless extended for exceptional circumstances under section 107.

Court orders

1.P.J.K. and D.K. appointed joint guardians over each of the minors Y.J.K. and N.C.K. with parental responsibility and powers over the estate and person of the child, in terms of section 102 of the Children Act
2.Guardianship orders to last until the children attain the age of 18 years, unless earlier revoked or later lawfully extended by the court
3.Costs of the summons to be in the cause

Jurisdiction invoked: Sections 102, 105 and 109 of the Children Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Guardianship of Y.J.K. and N.C.K. (Minors) - Ex parte P.J.K.", Case Analysis (2020). Originating Summons dated 29th October 2019. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.