[2021] KEHC 3698 (KLR)
The court held that the proposed guardian ad litem, being a relative of both the applicants and the child, could not be considered objective or independent as required by Section 160 of the Children Act 2016. The court emphasized that the role of a guardian ad litem is to provide an independent report based on...
Source-derived case information.
- Citation
- [2021] KEHC 3698 (KLR)
- Parties
- Applicant: DNA; Applicant: MMN
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 1 of 2021
- Procedural Posture
- Adoption Cause / Ruling on Appointment of Guardian Ad Litem
- Outcome
- application for appointment of proposed guardian ad litem rejected
- Judges
- REA Ougo
- Legal Topics
- Adoption Procedure, Guardian Ad Litem Appointment, Child Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DNA
Applicant
MMN
Applicant
Procedural Posture
Adoption Cause / Ruling on Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether the proposed guardian ad litem, being a relative of the applicants and the child, can be considered objective and independent as required by law.
- 2 Whether the appointment of a relative as guardian ad litem safeguards the interests of the child in adoption proceedings.
Ratio Decidendi
The court held that the proposed guardian ad litem, being a relative of both the applicants and the child, could not be considered objective or independent as required by Section 160 of the Children Act 2016. The court emphasized that the role of a guardian ad litem is to provide an independent report based on investigations relevant to the proposed adoption, with the primary aim of safeguarding the interests of the child. The familial relationship and lack of co-residence with the applicants in the USA undermined the neutrality and independence necessary for the role. Consequently, the court rejected the appointment and directed the applicants to propose a neutral and independent...
Court Disposition
application for appointment of proposed guardian ad litem rejected
Orders
- The proposed guardian ad litem is rejected.
- Applicants to propose a neutral and independent guardian ad litem.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
ADOPTION CAUSE NO. 1 OF 2021
IN THE MATTER OF SK................................. A CHILD
AND
DNA.................................... 1ST APPLICANT
MMN..................................2ND APPLICANT
RULING
1. Before me is an application by the applicants DNA and MMN seeking to have JGA of P.O. Box [xxx] Keroka to be appointed as a Guardian ad litem.During his interview in Court JA informed the court that D is his brother and M his sister in law. He admitted that he does not stay with the applicants and that during the holidays he stays with the child at Masaba.
2. Section 160 of the Children Act 2016 provides for the duties of the guardian ad litem. The proposed guardian ad litem is a relative of the applicant and child. For one to do an objective and independent report, the proposed guardian ad litem should in my view be an objective and an independent person. The applicants need to look for a guardian ad litem who will be objective and independent as that which is required of him or her must be a report that details his/her investigations relevant to the proposed adoption with a view of safeguarding the interests of the child and to report on matters stated by the applicants.
3. Being a relative of the applicants it is my view that he would not be objective or give an independent report. Further he does not stay with the applicants in the USA where they reside. The guardian ad litem should be a neutral and independent person.
4. On the stated reasons, I reject the proposed guardian ad litem.
DATED, SIGNED AND DELIVERED AT KISII THIS 28TH DAY OF SEPTEMBER, 2021.
R.E. OUGO
JUDGE
In the presence of:
Mr. Bitok for the applicants
Rael Court Assistant