[2020] KEHC 773 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CIVIL MISC. APPLICATION NO. E1 OF 2020

MARIAM SHIGHADI MWASHIGHADI......................APPLICANT

-VERSUS-

JAMES GONDA MWASHIGHADI...........................RESPONDENT

JUDGMENT

1. The application which is before the court is dated 21st September, 2020 and was filed on 24th September, 2020 and seeks, substantively, that the Applicant be authorized to have legal guardianships over the minor child James Gonda Mwashighadi. Although the application is brought under Section 24and5 of the “Guardianship Cap 144, Laws of Kenya” which is unknown to me having been repealed by the Children Act Cap 141, Section 102 of the Children Act provides as follows:

“102. Appointment of guardian

1) For the avoidance of doubt, in this Part, “guardian” means a person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the provisions of this Act.”

2. The Application seeks the court to determine on among other questions that;

a) Whether James Gonda Mwashighadi is a Minor ?

b) Whether the parents of James Gonda Mwashighadi who herein the minor are alive, if yes where is /are the said parents?

c) Whether the minor herein James Gonda Mwashighadi has a known source of income?

d) Whether the minor herein James Gonda Mwashighadi has a guardian who is taking care of him ? If yes who is the guardian?

e) Whether there is any relationship between the minor and guardian ?

f) Whether the guardian has been taking care of the minor a guardian,as per the Guardianship Act.

g) Whether the guardian is capable to be appointed as the guardian of James Gonda Mwashighadi, herein the minor?

h) Whether the guardian has any bad history that would make her unsuitable to be appointed guardian of James Gonda Mwashighadi herein the minor.

i) Whether the guardian/applicant has that ability and capacity to be a guardian.

j) Whether this hounourable court should grant the guardianship of James Gonda Mwashighadi to the Applicant?

k) Whether the court should grant any costs

3. The application is based and supported on the facts set out in an affidavit sworn by the applicant sworn on 21st September, 2020. She deponed that the minor herein James Gonda Mwashighadi, is currently 9 years old having been born on the 22nd March, 2011. A birth certificate is annexed therein and marked as “MSM-1”. That the minor is the son of the late Austin Mnyika Mwashingadi who died on 12th August, 2013. The mother of the minor is Known as Loice Mnyazi Gonda, but she abandoned the minor and his young brother in 2017 shortly after their deceased father passed away. The Applicant avers that together with other members of the family and the area Chief have tried to located the minor’s mother in vain and there is need that the minor is accorded parental care.

4. The Applicant further deponed that the minor is her nephew and she has been living with the minor since 2017 after his mother departed them. She also deponed that she has source of income from a farm in Wundanyiwhere she does some farming and further receives Kshs.10,000/= sent to her by a niece who lives in Denmark. She annexed M-pesa statements to prove the same.

5. She has also deponed that the minor started going to school in October, 2020 and further that she has talked to two brothers of the deceased minor’s father namely Tobias Shimba MwashighadiandDishon Nyambu Mwashingadi and not opposed to this application. There is also on record affidavits sworn by the two confirming the averments of the Applicant.

6. The court was further informed that the late Austin Mnyika was servingas an Administration Police when he met his death and his pension which is still intact should be used for the benefit of his son (the minor herein). That the minor herein has an elder brother by the nameFredrick Mwashighadi Mnyikaand by an order of the court inOS No.8 of 2014delivered on23srd April, 2014,Carroline Wughangawas appointed as the guardian.

7. Lastly, the Applicant deposited that she is member of Mwasombo Pentecostal Church and a recommendation letter dated 16th March, 2020 was issued in her favour.

8. The application proceeded for hearing on 10th December, 2020. Mr. Gikonde appeared on behalf of the Applicant and the Respondent, the minor herein, was present in court. Mr. Gikonde reiterated the deposition of the applicant in his submissions and the Applicant further affirmed that what Mr. Gikonde had submitted was the truth.

9. Seeing that the child was so intelligent, alert and assertive, the court explained to him the submission made by the Applicant and asked of his view. The minor responded as follows:

“She is my grandmother and I have no objection to her raising me. I am comfortable under her care”

Determination

10. The above summarizes the factual circumstances surrounding this matter.

I now consider the law. I have earlier indicated that this application has been brought under provisions of the repealed Guardianship Act. Does that leave the situation on guardianship vacant or exposed? Not at all. Sections 3and4 of the Children’s Act demand that all steps must be taken to ensure the full realization of the rights of a child; and further, inSection 4 (2)of the Children’s Act it is provided as follows:-

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

11. Section 76 of the Children’s Act provides the general principles applicable in regard to proceedings in Children’s courts. Section 76 (3) of the Children’s Act is critical in that it requires as follows:

“(3) Where the court is considering whether or not to make an order with regard to a child, it shall have particular regard to the following matters-

a)the ascertainable feelings and wishes of the child concerned with reference to the child’s age and understanding.

b)the child’s physical, emotional and educational needs and in particular, where the child has a disability, the ability of any person or institution to provide any special care or medical attention that may be required for the child.

c)the likely effect on the child of any change in circumstances.

d)the child’s age, sex, religion personality and cultural background.

e)any harm the child may have suffered or is at risk of suffering.

f)the ability of the parent or any other person in relation to whom the court considers the question to be relevant, to provide for and care for the child

g)…….

h)…….

i)the range of powers available to the court under this Act.”

12. The father of the minor died on 12th August, 2013 placing him in the situation contemplated in Section 103 of the Children Act as follows:

103. 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, subject to the provisions of this Act, be the guardian of the child and when no guardian has been appointed by the father or the guardian appointed by the father is dead or refuses to act, the court may appoint a guardian to act jointly with the mother.

2. On the death of the mother of a child, the father, if surviving, shall be the guardian of the child either alone or jointly with any guardian appointed by the mother or if the guardian appointed by the mother is dead or refuses to act, the court may appoint a guardian to act jointly with the father.

13. In this case, however, the evidence adduced was that the mother of the minor could not be traced the same has been confirmed by the area Chief vide a Letter dated 10th March, 2020. The brothers of the late Austine Mnyika Mwashighadi confirmed that the mother of the minor abandoned him and the applicant has since then been taking care of the minor.

14. The court was satisfied on the evidence that the minor’s mother could not be traced and the minor had been living with the Applicant who he referred as her grandmother since the mother left. Those are the circumstances which have prompted these proceedings for guardianship by the grandmother. The minor was also agreeable that the applicant should be appointed as his guardian.

Consent of Guardian

15. By her affidavit in support of the application, the Applicant was aware of

the consequences of the appointment and she agreed to abide by the appointment as guardian and to take the responsibility.

Power of the Court to appoint Guardian

16. The Court has power to appoint a guardian where the child’s parents are dead or cannot be found under Section 105 of the Children Act as follows:

“105. Appointment of guardian by the court

In addition to the powers of the court to appoint a guardian under subsection (5) of section 104 the court may appoint a guardian in the following circumstances—

a)On the application of any individual, where the child’s parents are no longer living, or cannot be found and the child has no guardian and no other person having parental responsibility for him;

b) On the application of any individual, where the child is a displaced child within the meaning of section 119 of this Act.”

Joint - Guardianship order

17. Alternatively, the said mother may seek revocation of the Guardianship orders made in favour of the Applicant grandmother, and the Court shall consider the matter and make appropriate orders in terms of Section 106(6) of the Act, which provides as follows:

“106 (6) Any appointment of guardian may be brought to an end at any time by order of the court on the application of –

a)Any parent or guardian; or

b)The child concerned with leave of the court; or

c)A relative of the child,

In any proceedings if the court considers that it should be brought to an end even though no application has been made.”

Lapse of Guardianship order

18. The order for guardianship herein shall lapse upon the minor herein, James Gonda Mwashighadi attaining the age of 18 years, unless the court extends the order in the manner and for the reasons contemplated in section 107 of the Children Act, as follows:

“107. Extension of appointment of guardian beyond child’s eighteenth birthday

1. The appointment of a guardian shall be determined upon the child attaining the age of eighteen years, unless exceptional circumstances exist that would require a court to make an order that the appointment be extended.

2. The exceptional circumstances referred to in subsection (1) are that the child suffers from a mental or physical disability or from an illness that will render him incapable of maintaining himself, or of managing his own affairs and his property without the assistance of a guardian after his eighteenth birthday or such other exceptional circumstances with regard to the child as the court may deem proper to warrant the making of an order under this section.

3. Where an order is made under subsection (1), it shall be made prior to the child’s eighteenth birthday and may be made on an application by—

(i) The child; or

(ii) The parent or guardian of the child; or

(iii) A relative of the child; or

(iv)The Director:

Provided that no order shall be made without the consent of the child, if he is capable of giving such consent, and of the guardian whose appointment is required to be extended.

4. A court making an order under this section may attach such conditions as to the duration of the order and containing directions as to how it shall be carried out, imposing such other conditions that must be complied with and with such incidental, supplemental or consequential provisions as the court thinks fit. [Rev. 2012] CAP. 141 Children 51 [Issue 1]

5. A court shall have power to vary, modify or revoke any order made under this section after the child’s eighteenth birthday, on the application of any of the persons named in subsection (3), or where the child marries after his eighteenth birthday, his spouse.”

Conclusion

19. Having heard the application and considering the opinion of the minor herein subject to the application for guardianship, and being satisfied that the mother of the minor cannot be traced, this court makes an order in respect minor, unless the applicant disclaims her appointment as a guardian in terms of Section 106 (5)of theChildren Act, and unless and until her such appointment is revoked under Section 106 (6) of the Act, pursuant toSections 102and109 of the Act, the Applicant is appointed guardian over minor herein with “parental responsibility over the minor herein” and “powers over the estate and person of the minor herein.”

Orders

20. Accordingly, for the reasons set out above, the Court grants the Applicant Orders of Guardianship in respect of the minor herein named in the Originating Summons herein to last until his attainment of the age of 18 years, unless earlier revoked, or later lawfully extended, by the court in accordance with the law.

It is so ordered.

DATED, SIGNED and DELIVERED at VOI on this11th day ofDECEMBER, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE