[2023] KEHC 25359 (KLR)

In re CJ & WK (Children Miscellaneous Application E016 of 2023) [2023] KEHC 25359 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25359 (KLR)

Republic of Kenya

In the High Court at Eldoret

Children Miscellaneous Application E016 of 2023

RN Nyakundi, J

November 14, 2023

IN THE MATTER OF THE CHILDREN ACT 2022 AND IN THE MATTER OF APPLICATION OF GUARDIANSHIP OF CJ & WK

Judgment

1. The Applicant approached this court vide an Originating Summons dated 20th April 2021 seeking the following orders;1. That the Applicant be appointed Legal Guardian of CJ & WK hereinafter referred to as “the Children”.2. That the applicant be allowed and be the authorized legal Guardian in respect of the above-mentioned children.3. That the Applicants be authorized to take medical cover & other employee benefits such as education provided at her place of work on behalf of the children.4. That the Court be pleased to make any further order as it deems fit and just in the circumstances.

2. The Application is premised on the grounds set out therein and the statements of the applicants annexed thereto.

3. The Court directed the children’s department to file a report in respect of the suitability of the adoptive guardians under the framework of the children’s act on 2nd May 2023. After visiting the applicant’s home on 27th July 2023, interrogating the children’s father, the applicant and the children, the Sub County Children’s officer, Soy Sub County duly filed a report in court on 3rd August 2023 which report is favourable to the applicant and recommends her suitability as a guardian.

Decision 4. I have considered the application dated 20th April, 2021, annexed affidavit by the intended guardian together with that of the biological parent of the minor. They all speak to the provisions of the law to invoke the jurisdiction of this court outlined in section 8 of the Children’s Act of Kenya 2022 version. Some of the salient features for the court’s mandate is to secure:a.The best interest of the child as a primary consideration geared towards safeguarding and promoting the rights and welfare of the childb.Conserve and promote the welfare of the childc.The right to freedom of thought, conscience, religion, education, right to the highest attainable standard of health care services in accordance to Article 43 of the constitutiond.Right to inheritancee.Right to protection from child labourf.Right to protect from armed conflicts

5. In this respect, the court in exercising its jurisdiction in promoting the best interest on the child it is a constitutional imperative to give effect to Articles 27, 47, 48, 49, 50, 51, & 53 of the constitution. What does law envisage in so far as in matters involving rights of the children as defined in the children’s act. The court in J v C (1970) AC 668 had this to say on this subject:“When all relevant fact, relationship, claims and wishes of parents, risks choices and other circumstances are taken into account and weighted, the course to be followed will be that which is most in the interest of the child…”

6. Some of the consideration the children’s Act guides the court relating to the exercise of discretion include but not limited to the following:a.The ascertainable wishes and feeling of the child concerned, considered in the light of his or her age and understandingb.The child’s physical, emotional and educational needsc.The likely effect in any change in the child’s circumstancesd.The child’s age, sex, background and any circumstances relevant in the matter.e.Any harm that the child has suffered or is at the risk of sufferingf.Where relevant, the capacity of the child’s parents, guardians or others involved in the care of the child in meeting his or her needs

7. The scope of the remedy being sort by the applicant falls within the threshold expressly stated in the persuasive decision by Uganda High Court in David Twesigye (an infant) HCMA No.0004 of 2008 (at page 4,5, and 6) where the judge held as follows:“While the primary right of a child is to grow up under the tutelage of his or her parents, or parent, for the obvious reasons of emotional attachment, if it is shown to the satisfaction of a competent authority, and in this case the court that vesting legal guardianship of the child in the applicants, it would serve the best interest of the child, then it would be proper for this court to make an order removing such child from the parent. Court has to weigh the emotional loss of staying with one’s parents against the opportunities that would come with the relocation away from the hands of the parents....”

8. The best interests of the child is the highest standard for awarding child custody, guardianship, and adoption in the Republic of Kenya. It is that standard presumable which places constitution imperatives on the best interest and welfare of the child as a central focus in every decision made impacting on any such rights as a foundation to further their interest. The courts must determine the best interest of the child based on a case to case basis and the answer to every question is individualised. What sometimes is experience by Judges is on how hard to predict the outcome of the best interest in child custody or guardianship. I am mindful specifically on cases of this nature where courts demonstrate in their decisions a failure to comply with the constitution and legislation governing the doctrine of the best interest. It is empirical some courts may give priority to the mother over the further when both parents are in conflict. It is also a case in our courts that in certain instances fathers are denied preference over the mother solely the basis of his sex or disapproved on the sex based tender years doctrine. So it requires more deep enquiry concerning the best interest of children taking specific and unique circumstances of each child to full fill the spirit of the law on the best interest and welfare of the child.

9. Based on these guidelines I am convinced the evidential material placed before me that the continuity of the best interest of the minor here is better placed in the guardianship of the applicant and the biological parents have complete control over visitation rights to accord them continued relationship with the minor. This view is founded on the principle that the minor requires a continuous relationship with both parents or as the case may be. Preliminary inquiry conducted by the Director of Children’s Services, indicate satisfactorily that the applicant has made the appropriate conditions precedent to be granted guardianship of the named minor within our constitutional and statutory framework on the best interest of the child. For those reasons this findings leads me to make the following declarations.1. That, the court pursuant to sections 122 of the Children’s Act2022, appoints the applicant, BJ, guardian over the children CJ and WK in respect of the person and the estate of the children, which guardianship shall last until their attainment of the age of 18 years, unless earlier revoked, or later lawfully extended, by the court in accordance with the law.2. The Applicant is authorized to take medical cover & other employee benefits such as education provided at her place of work on behalf of the children.It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 14TH DAY OF NOVEMBER 2023In the presence of:M/s Tabui for the Applicant............................................R. NYAKUNDIJUDGE