In re BKM (Minor) (Miscellaneous Application 034 of 2023) [2023] KEMC 302 (KLR) (3 October 2023) (Ruling)
Neutral citation:
[2023] KEMC 302 (KLR)
Republic of Kenya
Miscellaneous Application 034 of 2023
PA Ndege, SPM
October 3, 2023
IN THE MATTER OF AN APPLICATION BY I.N.G. (FIRST APPLICANT) AND E.W.K. (SECOND APPLICANT) TO BE APPOINTED AS SOLE GUARDIANS TO BKM (MINOR)
In the matter of
LNG
1st Applicant
EWK
2nd Applicant
Ruling
1.This is an originating summons dated 21.08.2023, in which the applicants herein are praying for the following Orders: -a.That the Applicants be appointed legal guardians of the minor hereinb.That this Honorable Court be pleased to grant actual and legal custody of the minor to the applicantsc.That the Court do grant further orders as it may deem just and fitd.That the costs pf this application be in the cause
2.The application is premised on the following grounds and the annexed Supporting Affidavit of the 2nd applicant sworn at Nakuru on21.08.2023, mainly that: -a.The minor’s father passed away on 16.04.2023b.The 2nd Applicant is aunt to the minorc.The minor’s mother is not financially stable to take care of himd.The minor’s mother has entrusted the Applicants with care of the minore.The subject minor has been living with the Applicants since April 2021 in Kikuyuf.The Applicants wish to include the minor in their NHIF scheme to enable him get medical careg.The Applicants want to take up custody of the minor and maintain himh.The Applicants have bonded with the minor and they are in good relationshipi.The orders sought herein will not prejudice the rights of the child or any other person having parental responsibility over the above-mentioned childj.The orders sought if granted will be in the best interests of the child.
3.On 22.08.2023, the court called for a children’s officers report with regard to the welfare and interest of the child herein and directed that both applicants attend court physically for the court’s interrogation as to their fitness to be guardians and custodians of the child herein.
4.The Children’s officer, has since filed his report dated 26.09.2023. it recommends that the applicants be granted full guardianship to the minor herein and that the biological mother be given unlimited access. The report generally supports the application herein. I therefore do not see any ground to make me doubt the applicants herein.
5.Sections 2 and 122(1) of the Children’s Act, 2022 define a guardian to mean and include a person appointed 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. Under section 123(3), where a surviving parent is separated from the deceased parent before his death, the Court may, on an application by any other person, determine whether the surviving parent is fit to act as guardian of the child.
6.I have gone through the application and the children’s officer’s report filed herein. The child’s father is said to have separated with his mother before he passed on. The mother generally appears to be unfit to be a guardian of the child herein. The circumstances herein disclose that she is not capable and/or sufficiently responsible and that the child herein is better off with the applicants who have taken and so far, raised him as their child. I do hereby appoint the applicants herein to be the guardians of the child herein, and the biological mother is granted unlimited access.
7.It therefore means that the applicants herein shall assume full parental responsibilities, care and custody over the child herein till he attains 18 years old., and subject to the provisions of the law regarding guardianship. The upshot is that the Originating Summons herein is hereby allowed as prayed.
DATED, SIGNED AND DELIVERED AT NAKURU IN THE CHILDREN’S COURT THIS 03rd DAY OF October 2023ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATE