Appointing a Guardian for Your Minor Children in Kenya: What the Children Act Requires

Parents of young children often assume that naming a guardian in a will settles who will raise them if both parents die. The Children Act, 2022 is more detailed than that, and some of its rules catch families by surprise, especially where the chosen guardian lives abroad. This article sets out how to appoint a guardian for minor children in Kenya, what happens if one parent survives, and where a court can step in.

What the Children Act means by a guardian

Section 122 of the Children Act defines a guardian as a person appointed by will or deed by a parent, or by a court order, to assume parental responsibility over a child on the death of the parent, either alone or jointly with the surviving parent. A guardian can be appointed in respect of the child’s person, the child’s estate, or both. Section 122(2) allows an application for the appointment of a guardian in respect of any child resident in Kenya, whether or not the child was born here or is a Kenyan citizen. The text in this article is taken from the version of the Act on Kenya Law, consolidated to 31 December 2022.

The surviving parent comes first

Section 123 gives the surviving parent a prior position. If the father dies, the mother is the guardian, either alone or jointly with any guardian the father appointed. If the mother dies, the same applies to the father. Where no guardian was appointed, or the appointed guardian has died or refuses to act, the court may appoint a guardian to act jointly with the surviving parent. If the surviving parent had separated from the deceased parent before the death, section 123(3) lets the court, on someone else’s application, decide whether that parent is fit to act as guardian.

Section 124(4) adds that a guardian appointed by will or deed acts jointly with the surviving parent during that parent’s lifetime, unless the parent objects. If the parent objects, or the guardian considers the parent unfit to have legal custody, either of them can apply to court. Under section 124(5) the court may decline to confirm the appointment, in which case the surviving parent is sole guardian. It may direct that the guardian acts jointly with the parent, appoint a relative or another willing person to act jointly, or make the guardian sole guardian. The court cannot make a person who is not a relative the sole guardian unless exceptional circumstances justify it, having regard to the child’s welfare and best interests.

The practical point is that your will names a guardian, but it does not override the other parent while the other parent is alive.

How to make a valid appointment

Section 124(1) allows either parent to appoint a guardian by will or deed, to take effect after that parent’s death. Section 124(2) lets a guardian appoint someone else to act in the guardian’s place if the guardian dies. Under section 124(3), a deed must be dated and signed by the person making the appointment in the presence of two competent witnesses. A written will must be made, executed and attested in accordance with the law relating to wills. Section 11 of the Law of Succession Act requires a written will to be signed by the testator and attested by two or more competent witnesses.

Where both parents appoint guardians, section 124(6) says the guardians so appointed have joint responsibility towards the child after the death of the surviving parent. If the two parents have named different people, the appointments should be checked against each other so that the guardians are compatible.

Two catches for families with relatives abroad

Section 122(3) says a guardian appointed under the Act shall be a Kenyan citizen. If the relative you trust most is a foreign national, an appointment under the Act may not work, and you should take advice on alternatives before relying on it.

Section 122(4) restricts a guardian who is not the child’s father or mother from removing the child from Kenya without a court order. The section says leave is granted only in exceptional circumstances and subject to conditions the court considers appropriate. A family that expects the child to move to live with an aunt in London should not assume that the guardian can simply relocate the child.

Guardian of the person and guardian of the estate

The Act separates caring for the child from managing the child’s property. A guardian appointed only in respect of the child’s estate does not need to have actual custody of the child. Under section 122, a guardian of the estate has the power and responsibility to administer the child’s estate, including receiving, recovering and investing the child’s property in the guardian’s own name in trust for the child. The guardian may create a trust fund for the child, must take reasonable steps to safeguard the estate, and must prepare and submit accounts and an inventory on every anniversary of the appointment.

That duty is a reason to think about who should hold the money. Many families name one person to raise the children and a different person, or a professional trustee, to manage the inheritance. A testamentary trust can hold the property until the children reach the ages you choose, which our article on testamentary trusts in a will explains.