REPUBLIC OF KENYA IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MALABA CHILDREN’S CASE NO. E002 OF 2026 J.E……………….. ………………...........................................................PLAINTIFF -VERSUSF.E………………………….…………..……………………………..….. ………..DEFENDANT JUDGMENT Introduction and Pleadings 1. Vide a Plaint dated 5th February 2026 and filed in Court on 12 th February 2026 the Plaintiff seeks that judgment be entered in his favor in the following terms: a) An order for appointing the Plaintiff as the legal guardian of V.E until he attains the age of eighteen years or until further orders of this court. b) An order granting the Plaintiff parental responsibility over the minor for purposes of medical, educational and welfare decisions. c) An order directing that the Department of Children’s Services do supervise and file such reports as the Court may direct. d) Costs of the Suit. 2. The circumstances giving rise to the claim are that the Defendant is the biological mother of the Minor and who separated from her husband when the minor was three years old. That since that separation the Plaintiff has taken over responsibility of the minor and has provided shelter, food, medical care and education to date. That the Children’s Officer has conducted investigations and recommended that the Plaintiff be appointed legal guardian of the minor. 3. The defendant despite service neither entered appearance nor filed a defence. She however attended court on the date of hearing and Judgment Malaba SPMCHC No. E002 OF 2026 Hon. A.Z Ogange -RM pg. 1
page 1 of 3
chose not to participate. The matter proceeded with hearing of the Plaintiff’s case on the 29th day of July 2026 who relied on his pleadings and documents filed in support of the Claim. The matter was then reserved for judgment on 12th August 2026. 4. To this court, there is only one issue for determination; Whether this court has jurisdiction to issues orders in respect of a person who has attained the age of majority. 5. It is not in dispute that V.E is an adult. Section 91(5) of the Children’s Act 2022 provides as follows: - where, in the course of any proceedings in a children’s Court, it appears to the Court that the person charged, or to whom the proceedings relate, is above the age of eighteen years, the Court shall transfer the proceedings to a Court other than a children’s Court to conduct the proceedings under any other relevant law. 6. The Court notes that the proceedings were instituted when the subject was a child and therefore fell within the jurisdiction of the Children’s Court. The subsequent attainment of eighteen years does not retrospectively invalidate proceedings that were properly commenced. 7. However, attaining the age of majority is a supervening circumstance which materially affects the court’s continuing jurisdiction. The prayers seek appointment of a legal guardian, parental responsibility and authority over medical educational and welfare decisions which prayers are substantially founded upon the subject’s status as a child. Upon attaining the age of majority, the subject ordinarily acquires legal capacity to make decisions concerning his/her own person and welfare. 8. The court must therefore distinguish between jurisdiction at inception which existed and continuing jurisdiction which is affected by the attainment of age of majority. The court must therefore consider whether there are any exceptional circumstances justifying continuation of parental responsibility after attaining the age of eighteen. In the absence of such circumstances, the prayers for Judgment Malaba SPMCHC No. E002 OF 2026 Hon. A.Z Ogange -RM pg. 2
page 2 of 3
guardianship and parental responsibility have been overtaken by the attainment of the age of majority 9. Accordingly, the suit is struck out and since the same was not opposed and in any event, this being a family matter, there shall be no orders as to costs. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATE COURT THIS 12TH DAY OF AUGUST, 2026. In the Presence of the J.E the Plaintiff n/a the Defendant Court Assistant: Brenda Ochieng’ A.Z. OGANGE RESIDENT MAGISTRATE 12.08.2026 Judgment Malaba SPMCHC No. E002 OF 2026 Hon. A.Z Ogange -RM pg. 3
page 3 of 3