In re ER (Minor) (Children's Case E010 of 2026) [2026] KEMC 778 (KLR) (26 August 2026) (Judgment) Neutral citation: [2026] KEMC 778 (KLR) REPUBLIC OF KENYA IN THE MALABA LAW COURTS CHILDREN'S CASE E010 OF 2026 AZ OGANGE, RM AUGUST 26, 2026 IN THE MATTER OF E.R AND IN THE MATTER OF AN APPLICATION FOR GUARDIANSHIP BY A.M.M.A JUDGMENT 1. The Applicant, A.M.A.M, has moved this Court by way of Originating Summons seeking, principally, orders that she be granted custody of the minor, E.R, and that she be appointed the minor’s legal guardian. 2. The application is supported by the Applicant’s afidavit sworn on 8th July 2026 and the documents filed therewith. The documents placed before the Court include a copy of the Applicant’s national identity card, payslip, letter from the area Chief, letter from the church, school receipts from Davisan Academy School and documentation relating to the Applicant’s application as a foster parent. 3. The Applicant deposes that she is an adult Kenyan citizen, employed by the Kenya Bureau of Standards, married to H.E.0 and in gainful employment. She states that she has suficient income to cater for the minor’s needs and that the minor has been residing with her and her family. 4. The Applicant further states that she has assumed responsibility for the minor’s day-to-day needs, including food, education and medical care, and that the minor has been enrolled at Davisan Academy School. She also states that the minor has been exposed to the St. Stephens ACK Church community and has received counselling to assist her in adjusting to the guardianship arrangement. 5. Of particular relevance to the Court is the Children Oficer’s report dated 10th September 2021, which is already part of the Court record. The report sets out the circumstances in which the minor came to be placed at Sunbeam Children’s Home under protection and care. The report therefore provides important background to the minor’s circumstances and the need for appropriate parental care and protection. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/778/eng@2026-08-26 1
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6. The Court has considered the pleadings, the documents filed by the Applicant and the material already forming part of the Court record. The application is unopposed. 7. The governing law is the Children Act, 2022. Section 8 of the Act provides that in all actions concerning children, the best interests of the child shall be the primary consideration. Section 95 further requires the Court, in determining any matter concerning a child, to have regard to the child’s feelings and wishes, physical, emotional and educational needs, the likely efiect of any change in circumstances, any harm sufiered or likely to be sufiered, and the ability of the person concerned to provide for and care for the child. 8. The Court also bears in mind Part X of the Act concerning guardianship. Section 122 permits the appointment of a guardian by the Court, while section 125 empowers the Court to appoint a guardian in the circumstances prescribed by the Act. The Act further recognises the Court’s power to make orders for the protection and welfare of a child in need of care and protection. 9. In considering whether to make a guardianship order, a court is required to consider, among other matters, the views of the child, the Applicant’s spouse where applicable, the person having actual custody of the child, the preservation of the child’s existing family relationships and social, cultural, religious and linguistic environment, the ability and willingness of the proposed guardian to discharge the duties of guardianship, absence of confiict of interest, and the Children Oficer’s report. 10. In the present case, the evidence before the Court demonstrates that the Applicant has been exercising actual care and responsibility for the minor. She has demonstrated an ability to provide for the minor’s basic needs and has taken steps to secure the minor’s education, medical care, religious and social integration and emotional wellbeing. 11. The Court is also satisfied that the Applicant has demonstrated willingness and commitment to assume parental responsibility for the minor. Her undertaking to include the minor as a beneficiary of benefits available to her through her employment and to make reasonable investments for the minor’s benefit further demonstrates an intention to provide for the minor’s long-term welfare. 12. The Court has taken into account the history of the minor as refiected in the Children Oficer’s report already on record. The fact that the minor previously came under the protection and care of the relevant child protection authorities is material in assessing the stability and continuity of the care arrangement now proposed. 13. The Court is mindful that guardianship is not merely a status conferred for the convenience of an adult. It carries parental responsibilities and must at all times be exercised for the welfare and best interests of the child. On the material before Court, the Applicant has demonstrated the capacity and willingness to discharge those responsibilities. 14. The Court is further satisfied that the present arrangement has afiorded the minor continuity of care and an established home environment. The Applicant has indicated that the minor is comfortable within the family and has been integrated into the family’s social and religious environment. 15. The Court therefore finds that it is in the best interests of E.R that the present care arrangement be regularised through an appropriate guardianship order. 16. Consequently, the Originating Summons is allowed and the Court makes the following orders: a. The Applicant, A.M.MA, is hereby appointed the legal guardian of the minor, E.R. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/778/eng@2026-08-26 2
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b. The Applicant shall have care, custody and control of the minor, subject to the provisions of the Children Act and any further order of this Court. c. The Applicant shall not remove the minor from the jurisdiction of the Republic of Kenya without obtaining the requisite leave of the Court in accordance with the law. d. The Applicant shall comply with any reasonable directions issued by the Children’s Department concerning the welfare and protection of the minor. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATE’S COURT THIS 26TH DAY OF AUGUST, 2026. A.Z. OGANGE RESIDENT MAGISTRATE In the Presence of A.M.M.A the Applicant Court Assistant: Paul Otieno https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/778/eng@2026-08-26 3
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