Section 122 of The Children Act CAP 141: Appointment of guardian
(1) In this Part,
"guardian" means a person appointed by will or deed by a parent of a child or by an order of Court to assume parental responsibility over a child on the death of the parent of the child either alone or jointly with the surviving parent of the child in accordance with the provisions of this Act;
(2) A guardian may be appointed on application in the prescribed form in respect of any child who is resident in Kenya whether or not the child was born in Kenya or is a Kenyan Citizen.
(3) A guardian appointed under this Act shall be a Kenyan citizen.
(4) A guardian who is not the father or mother of a child shall not remove the child from the jurisdiction of the Republic of Kenya without obtaining an order of the Court, and such leave shall be granted only in exceptional circumstances and in accordance with subsection (6).
(5) Where leave is granted under this section, the Court shall impose such conditions and restrictions as it shall consider appropriate having regard to the best interests of the child.
(6) Notwithstanding subsections (4) and (5) the guardian shall be required to produce the child to court upon return.
(7) A guardian may be appointed in respect of the person or estate of the child or both.
(8) Where a guardian is appointed only in respect of the estate to which the child is a beneficiary, it shall not be necessary for that purpose for the guardian to have actual custody of the child.
(9) Without prejudice to subsections (6) and (7), the guardian appointed in respect of the estate of a child shall have—
(a) the power and responsibility to administer the estate of the child and, in particular, to receive, recover and invest, the property of the child in his own name in trust for, and for the benefit of, the child;
(b) the power to create a Trust Fund for the child in respect to any estate of the child;
(c) the duty to take all reasonable steps to safeguard the estate of the child from loss or damage;
(d) the duty to prepare and submit accounts and inventory in respect of the child’s estate on every anniversary of the date of his or her appointment as such to—
(i) the parent or custodian of the child;
(ii) the Secretary;
(iii) the Court; and
(iv) such other person as the Court may direct; or
(e) the duty to produce any account or inventory in respect of the child’s estate when required to do so by the Court.
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- Section 123 - Rights of surviving parent as to guardianship and power of Court
(1) On the death of the father of a child, the mother, if surviving, shall be theguardian of the child either alone or jointly with the guardian appointed by the father if any, but if no guardian has...
- Section 124 - Appointment of testamentary guardian
(1) Either parent of a child may, by will or deed, appoint any person to be the guardian of the child after that parent’s death.
(2) The guardian of a child may, by will or deed, appoint another...
- Section 125 - Appointment of guardian by the Court
(1) In addition to the powers of the Court to appoint a guardian under section122, the Court may appoint a guardian on application by any person in the prescribed form in any of the following...
- Section 126 - Customary guardianship
(1) In addition to the powers of the Court to appoint a guardian under section122, the Court may appoint a guardian on application by any person in accordance with the customs, culture or tradition of...
- Section 127 - Extension of appointment of guardian beyond child’s eighteenth birthday
(1) The appointment of a guardian shall expire upon the child attaining the age of eighteen years, unless exceptional circumstances exist that would require a court to make an order that appointment...
- Section 128 - Revocation or disclaimer of appointment
(1) The appointment of a guardian under section 122 revokes any earlier appointment including an agreement made in an unrevoked will or codicil made by the same person in respect of the same child,...
- Section 129 - Dispute between guardians
(1) Where two or more persons acting as joint guardians to a child, or where thesurviving parent and a guardian acting jointly, fail to agree on any matter concerning the welfare of the child, any of...
- Section 130 - Powers of guardian
A guardian appointed under section 122 and 126 shall have the same powers over the child, or over the estate of a child, as a guardian appointed by deed or will or otherwise under the Law of...
- Section 131 - Neglect or misapplication of assets by guardian of a child’s estate
Where a guardian of the estate of a child, whether or not that guardian is also a guardian of the person of the child—
(a) neglects to recover or safeguard the estate of a child, or
(b) misplaces...
- Section 132 - Offence by guardians of a child’s estate
(1) Any guardian of the estate of a child who—
(a) willfully or recklessly neglects to receive or safeguard any asset forming part of the estate, misapplies any such asset or subjects any such asset...
- Section 133 - Power of Chief Justice to make Rules
The Chief Justice shall make regulations to give effect to this Part, including rules of procedure directing the manner in which applications may be made under this Part.
- Section 134 - Power of Court to make orders in certain proceedings
(1) The Court may make any order under this Act or any other written law for the protection of a child in any proceedings concerning the welfare and upbringing of the child.
(2) The persons qualified...
- Section 135 - Orders which Court may make
(1) The Court may from time to time where appropriate make any of the following orders—
(a) an access order, which shall require the person with whom the child is residing to allow the child to...
- Section 136 - Supervision order
(1) The Court may, either of its own motion or on application by any person for any order directing the care and protection of a child, make an order, in this Act referred to as a supervision order,...
- Section 137 - Power to make interim supervision order
(1) The Court may make an interim supervision order, either of its own motionor on application by any person—
(a) where the Court has reason to believe that the living conditions of the child...
- Section 138 - Discharge of supervision order
(1) A Court which has made a supervision order or an interim supervision ordermay vary or discharge the order on application by—
(a) the child with the leave of the Court;
(b) the parents or...
- Section 139 - Power of arrest
Where a Court makes an order pursuant to section 135(1) (c), (d) or (g), the Court may attach a power of arrest to the order, and the person named in the order shall be liable to arrest if he or she...
- Section 140 - Penalty
Any person who contravenes an order made under section 135, or who obstructs or unlawfully interferes with a person appointed by the Court in the execution of his duties under an order made under that...
- Section 141 - Review, etc., of order
The Court may—
(a) from time to time review, vary, suspend or discharge any order made under this Part; or
(b) revive an order after the order has been suspended or discharged.
- Section 142 - Interpretation
For the purpose of this Part—
"a child in need of care and protection" means a child who lives in difficult circumstances and needs to be protected from all kinds of neglect, abuse or...
- Section 143 - Jurisdiction of the Court
A Children’s Court shall have jurisdiction to make an order or render judgment under this Part notwithstanding that any act, matter, thing or circumstances giving rise to such order or judgment did...
- Section 144 - When a child is in need of care and protection
For the purposes of this Act, a child in need of care and protection includes a child—
(a) who is an orphan and has no guardian;
(b) who has been abandoned by their parent or guardian;
(c) who is...
- Section 145 - Proceedings in respect of children in need of care and protection
(1) Any person who has reasonable cause to believe that a child is in need of care and protection may report the matter to the nearest authorised officer, who shall take such steps as may be necessary...
- Section 146 - Healthcare
(1) If it appears to an authorised officer exercising powers under section 144 that a child is in need of healthcare, the officer shall forthwith take the child to a registered health institution, and...
- Section 147 - Determination as to child’s home, etc.
(1) If a child in need of care and protection is brought before a Court, andthe Court determines that the child has a home in, or has been found in the local limits of, a particular county government...
- Section 148 - Parent or guardian to be heard in any application
(1) If a child in need of care and protection is brought before the Court on anapplication by any person for orders in that regard, the parent, guardian or other person having parental responsibility...
- Section 149 - Power of Secretary to take over application
The Director of Public Prosecutions may authorise the Secretary at any stage in the proceedings under this Act, whether before, during or after the making of any application, to take over and assume...
- Section 150 - Power of Court in respect of children in need of care and protection
(1) A Court before which any child in need of care and protection is brought may require an authorised officer or any other person to give a report or professional advice on any aspect of the...
- Section 151 - Application of trusts for maintenance of children
(1) Where a child is, by an order of the Court made under this Part, removed from the care of any person, and that person is entitled under any trust to receive any sum of money in respect of the...
- Section 152 - Penalty for cruelty to and neglect of children
(1) Any person who, having parental responsibility, custody, charge or care of any child, and who—
(a) wilfully assaults, ill-treats, abandons, or exposes, in any manner likely to cause the child...
- Section 153 - Care order and grounds thereof
(1) In this section "care order" means an order entrusting the care, control and custody of the child to a person other than the parent, guardian or custodian of the child, or an institution appointed...
- Section 154 - Access to children in care
(1) In determining the terms of a care order, the Court may—
(a) consider any prior arrangements made by the Secretary for allowing any person access to the child during the period within which the...
- Section 155 - Power to make interim care order
(1) A Court may, either of its own motion or on application by any person, make an interim care order on any of the grounds specified in section 153 (2).
(2) Without prejudice to the generality of...
- Section 156 - Discharge of care order
(1) A care order or interim order may be discharged—
(a) by the making of an adoption order in respect of the child;
(b) in any case where the care order was not made in respect of the child by...
- Section 157 - Care on committal to a rehabilitation school, etc.
(1) Where the Court makes a care order directing that a child be committed to a rehabilitation school on being found guilty of an offence, the committal order shall specify the grounds on which the...
- Section 158 - Transmission of committal order
The Court making a care order under this Part in relation to a child committed to a rehabilitation school shall direct that the order be delivered to the manager of the rehabilitation school together...
- Section 159 - Escort of a child to a rehabilitation school
(1) Where a person authorised to escort a child to a rehabilitation school is unable to find or obtain custody of the child, the Court may, if satisfied by information on oath that a person named in...
- Section 160 - Harbouring or concealing a child
Where a child has been placed under care in a rehabilitation school, any person who harbours or conceals the child after the time fixed for the child to enter the rehabilitation school, commits an...
- Section 161 - Escape from institutions, etc.
(1) A child who escapes from a fit person, charitable children’s institution to whose care the child has been entrusted under this Act, or from any person or institution with whom the child has been...
- Section 162 - Duty of Charitable children’s institutions and County Public Entities
(1) Where a child escapes from any person or institution with whom or withwhich the child has been placed by a charitable children’s institution or county public entity, the manager, person in charge...
- Section 163 - Escape from children’s remand home or rehabilitation school
(1) Any child who escapes from a children’s remand home or while being escorted thereto or therefrom, may be apprehended without warrant and dealt with in accordance with section 157.
(2) Any child...
- Section 164 - Aiding escape, etc.
Any person who willfully and knowingly— (a) aids or induces a child—
(i) to run away from a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or...
- Section 165 - Production of escaped child
(1) If a Children’s Court is satisfied by information on oath that there arereasonable grounds for believing that a child has escaped or done any of the things specified in section 163, and that some...
- Section 166 - Presumption and determination of age
(1) Where a person appears before any Court for the purpose of givingevidence, and it appears to the Court that the accused, the victim or complainant to whom the proceeding relates is under eighteen...
- Section 167 - Contribution order not to be made in certain cases
Where a Court makes an order placing a child under the care of a rehabilitation school, the court shall not make a contribution order requiring a parent or guardian of the child to contribute any sums...
- Section 168 - Inter-country reciprocity.
(1) The Cabinet Secretary may enter into an agreement with the government of any other country or territory on such terms and conditions as the Cabinet Secretary may think fit, under which a child who...
- Section 169 - Bonds
The provisions of the Criminal Procedure Code with respect to bonds for good behaviour, including the provisions as to their enforcement, shall apply to bonds entered into under this Part.
- Section 170 - Objectives of foster care placement
(1) The overriding objectives of foster care placement are—
(a) to protect and nurture children in need of care and protection by providing a safe, healthy environment with wholesome support;
(b) to...
- Section 171 - Restrictions on periods of foster care
(1) In this Part, "foster care" includes—
(a) placement of a child in foster care on short term basis for a period not exceeding three years— (i) in situations of emergency;
(ii) where the child is...
- Section 172 - Conditions for foster care placement
(1) For the purposes of this Part, a child may be placed under foster care either on the direct intervention of the Secretary or pursuant to an order of the Court, and such placement shall, in the...