Understanding Guardianship in Kenya: The Basics

When a child’s parents are unable to provide care—whether due to death, incapacity, or other circumstances—someone needs to step in legally. That’s where guardianship comes in. In Kenya, guardianship arrangements have become increasingly formalized under the Children Act (2022), with proper documentation being essential to protect both the child and the guardian.

At the heart of this process is the Affidavit of Guardianship—a sworn legal document that establishes who has the authority to make decisions for a minor. But what exactly does this entail, and how do you navigate the process correctly?

“Guardianship is about more than just caring for a child—it’s about having the legal authority to make crucial decisions regarding their welfare, education, and health,” explains Wakili Muthii, a legal expert specializing in family law. “Without proper documentation, guardians may face challenges accessing essential services for the child or making important decisions.”

What Is an Affidavit of Guardianship?

An Affidavit of Guardianship is a sworn legal document that formally declares a person’s intention and suitability to become a guardian for a minor or incapacitated individual. In Kenya, this document forms a critical part of the guardianship application process and serves as evidence of the applicant’s commitment and qualifications.

Unlike casual arrangements where relatives might informally care for a child, a guardianship affidavit creates a legally recognized relationship with specific rights and responsibilities under Kenyan law.

Guardianship vs. Custody vs. Adoption: Understanding the Differences

These three legal arrangements are often confused, but they have important distinctions:

• Guardianship: Provides legal authority to make decisions for a child while preserving the child’s relationship with biological parents (if living). It can be temporary or permanent but doesn’t terminate parental rights.
• Custody: Typically addresses where a child lives and who makes day-to-day decisions, often arising in divorce or separation cases. Both parents usually retain legal rights.
• Adoption: Permanently transfers all parental rights and responsibilities to new parents, legally severing the relationship with biological parents.

“One common misconception is that guardianship completely replaces the parental role,” notes Catherine Muthii. “In reality, guardianship provides legal authority while often maintaining connections with existing family, making it suitable in situations where permanent adoption isn’t appropriate or necessary.”

When Is an Affidavit of Guardianship Required?

Common situations requiring formal guardianship in Kenya include:

• Death of both parents
• Parental incapacity due to illness or disability
• Abandonment or neglect
• Parents working or living abroad for extended periods
• Children requiring special medical care or educational decisions
• Orphaned children being cared for by relatives
• Cases where parents are unable to provide adequate care due to substance abuse or imprisonment

Legal Framework Governing Guardianship in Kenya

Understanding the legal foundation of guardianship in Kenya is essential for anyone navigating this process:

Children Act (2022): The Foundation

The Children Act (2022), which replaced the earlier 2001 version, provides comprehensive guidelines for child protection in Kenya, including provisions for guardianship. The Act emphasizes:

• The “best interests of the child” as the paramount consideration
• Prioritizing family-based care over institutional care
• Specific criteria for appointing guardians, including character assessment
• Court oversight of guardianship arrangements

Children (Guardianship) (Procedures) Rules 2023/2024

These rules provide detailed procedural guidance for guardianship applications, including:

• Standardized forms for guardianship applications
• Documentation requirements for different circumstances
• Court procedures for hearing and determining applications
• Implementation of guardianship orders

Role of the Court in Approving Guardianship

The Children’s Court plays a crucial role in the guardianship process:

• Assessing the suitability of the prospective guardian
• Determining if the arrangement serves the child’s best interests
• Issuing formal guardianship orders with specific terms
• Resolving disputes between competing guardianship claims
• Monitoring guardianship arrangements when necessary

Components of a Valid Affidavit of Guardianship

For an Affidavit of Guardianship to stand up to legal scrutiny in Kenya, it must contain several essential elements:

Deponent’s Details

The affidavit must clearly identify the person seeking guardianship, including:

• Full legal name
• National ID number or passport number
• Current residential address
• Occupation
• Relationship to the child
• Contact information

Child’s Information

Comprehensive details about the child must be included:

• Full name
• Date of birth and age
• Current residence
• Birth certificate number
• School information (if applicable)
• Health status (especially relevant for children with special needs)
• Parental status (deceased, incapacitated, absent, etc.)

Statement of Fitness

The affidavit must address the guardian’s suitability:

• Financial capacity to provide for the child
• Character references or testimonials
• Absence of criminal record (especially for offenses against children)
• Stable living situation
• Ability to meet the child’s specific needs
• Existing relationship with the child

Consent Documentation

Where applicable, the affidavit should address:

• Consent from living biological parents
• Consent from other close relatives
• The child’s opinion (if old enough to express one)
• Previous court orders affecting the child’s custody

Notarization Requirements

For legal validity, the affidavit must be:

• Signed in the presence of a Commissioner for Oaths
• Properly stamped and sealed
• Dated clearly
• Executed with the deponent fully understanding its contents

Step-by-Step Process to Obtain a Guardianship Affidavit

Navigating the guardianship process in Kenya involves several important steps:

1. Drafting the Affidavit

The first step is preparing the affidavit document:

• Use the prescribed format (Form GR5 for fitness affidavits)
• Include all required information about yourself and the child
• Clearly state the reasons guardianship is necessary
• Detail your relationship with the child and ability to provide care
• Address how the arrangement serves the child’s best interests

“The drafting stage is critical,” advises Catherine Muthii. “Any omissions or errors can delay the process or even result in denial of guardianship. Professional guidance at this stage can prevent complications later.”

2. Notarization Process

Once drafted, the affidavit must be properly executed:

• Take the document to a Commissioner for Oaths or Notary Public
• Present your identification
• Read and understand the contents fully
• Sign in the presence of the Commissioner
• Pay the required fee for notarization
• Obtain the necessary stamps and seals

3. Filing with the Court

Submit your application to the Children’s Court:

• Complete all court-required forms
• Attach your notarized affidavit
• Include all supporting documents (birth certificates, death certificates, etc.)
• Pay the filing fees
• Obtain a case number and hearing date

4. Court Approval Process

The court will evaluate your application:

• Preliminary review of documentation
• Scheduling of a hearing date
• Possible home assessment by children’s officers
• Court appearance and questioning
• Deliberation on the child’s best interests
• Issuance of a guardianship order if approved

Required Supporting Documents

A complete guardianship application typically requires these documents:

Identification Documents

• National ID card or passport of the prospective guardian
• Birth certificate of the child
• Death certificates of parents (if applicable)
• Marriage certificate (if the guardian is married)

Proof of Relationship and Circumstances

• Affidavits from family members confirming relationship
• Medical reports (for cases involving parental incapacity)
• Police abstracts (for cases of abandonment)
• Letters from chiefs or local administrators

Consent Documentation

• Written consent from living parents (if available)
• Consent affidavits from other close relatives
• Statement of the child’s wishes (for older children)

Financial and Character Evidence

• Proof of income or employment
• Bank statements
• Character references
• Certificate of good conduct

Residential Information

• Proof of residence (utility bills, lease agreement)
• Home assessment report (if already conducted)

Common Challenges and Solutions in the Guardianship Process

Navigating guardianship applications can present several challenges:

Family Disputes

Challenge: Competing claims for guardianship from different family members can complicate the process.

Solution:

• Document all family discussions and agreements
• Consider family mediation before court proceedings
• Clearly demonstrate your suitability and existing bond with the child
• Focus arguments on the child’s best interests rather than family politics

Documentation Errors

Challenge: Mistakes in forms or missing documents can cause significant delays.

Solution:

• Use the latest versions of required forms (Form GR5/GR6)
• Create a checklist of all required documents
• Seek professional review before submission
• Respond promptly to any requests for additional information

Court Delays

Challenge: The court system can be slow, leaving guardianship status uncertain.

Solution:

• Ensure complete filing to avoid administrative returns
• Request expedited hearings when circumstances warrant
• Follow up regularly on application status
• Consider temporary guardianship orders when appropriate

Benefits of a Properly Executed Guardianship Affidavit

Taking the time to properly execute a guardianship affidavit offers numerous advantages:

Legal Authority for Decision-Making

With formal guardianship, you can legally:

• Enroll the child in school and make educational decisions
• Consent to medical treatment and access health records
• Apply for identification documents for the child
• Make decisions about the child’s residence and travel
• Manage financial matters on behalf of the child

Protection for the Child

Proper guardianship arrangements protect children by:

• Providing stability and continuity of care
• Ensuring decisions are made by someone legally authorized
• Creating accountability through court oversight
• Preventing unauthorized removal of the child

Legal Compliance and Protection for the Guardian

Formal guardianship protects guardians by:

• Establishing clear legal authority for their role
• Preventing allegations of kidnapping or unauthorized custody
• Creating access to services and benefits for the child
• Providing a framework for resolving disputes

Frequently Asked Questions About Guardianship Affidavits

How long does the guardianship process take in Kenya?

The process typically takes 3-6 months from filing to final order, though complex cases may take longer. Factors affecting timeline include court caseloads, completeness of documentation, whether there are objections, and the specific circumstances of the case.

Can guardianship be temporary?

Yes, the court can grant temporary guardianship for specified periods, usually in emergency situations or pending final determination of permanent arrangements. Temporary guardianship can be renewed if necessary.

What happens if someone contests the guardianship application?

If another party objects to your guardianship application, the court will:

• Schedule a contested hearing
• Consider evidence from both parties
• Possibly appoint a guardian ad litem to represent the child’s interests
• Make a determination based on the child’s best interests

Can non-relatives become guardians in Kenya?

Yes, non-relatives can become guardians if they can demonstrate:

• An existing relationship with the child
• Ability to provide proper care
• That the arrangement serves the child’s best interests
• No suitable relatives are available or willing

However, the court generally prioritizes relatives, especially those with established relationships with the child.

Ensuring a Child’s Best Interests Through Proper Guardianship

Navigating the guardianship process in Kenya requires attention to detail and understanding of legal requirements. While the paperwork and procedures may seem daunting, remember that these formalities exist to protect vulnerable children and ensure they receive appropriate care.

The 2022 Children Act has strengthened protections for children while clarifying the guardianship process. By following the proper procedures and securing a valid Affidavit of Guardianship, you create legal certainty and stability for both yourself and the child in your care.

For professional assistance with preparing guardianship affidavits and navigating the court process, contact Catherine Muthii at 0722432638 or email muthiiassociates@gmail.com. With expert legal guidance, you can ensure your guardianship application proceeds smoothly, properly protecting the child’s interests and your legal rights as a guardian.

Remember that guardianship is ultimately about serving the best interests of the child—providing them with stability, care, and the legal protections they deserve during vulnerable times in their lives.