Children Act
The Act may be cited as the Children Act.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 141
- Version
- 31 Dec 2022
- Language
- en
- Official source
- View official record ↗
Source attribution: Source: Kenya Law
Statute overview
About this statute
The Act may be cited as the Children Act. Contains the phrase "who has been deserted by the parent, guardian or caregiver; or". The Act gives effect to the provisions of Articles 27, 47, 48, 49, 50, 51 and 53 of the Constitution on matters relating to children. A judicial or administrative institution or any person interpreting conflicts must have regard to the best interests of a child. Differential treatment intended to protect the child's best interest is not discrimination.
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Legal text
Provisions of Children Act
Showing 249 of 249
Part I
PRELIMINARY
- 1 Verify source ↗
PRELIMINARY - 1. Short title
The Act may be cited as the Children Act.
Section 1. Short title Section This Act may be cited as the Children Act. - 2 Verify source ↗
PRELIMINARY - 2. Interpretation
Contains the phrase "who has been deserted by the parent, guardian or caregiver; or".
Section 2. Interpretation Section who has been deserted by the parent, guardian or caregiver; or - 3 Verify source ↗
PRELIMINARY - 3. Objects of the Act
The Act gives effect to the provisions of Articles 27, 47, 48, 49, 50, 51 and 53 of the Constitution on matters relating to children.
Section 3. Objects of the Act Section give effect to the provisions of Articles 27, 47, 48, 49, 50, 51 and 53 of the Constitution on matters relating to children; and - 4 Verify source ↗
PRELIMINARY - 4. Conflict of laws
A judicial or administrative institution or any person interpreting conflicts must have regard to the best interests of a child.
Section 4. Conflict of laws Section 4(1) This Act shall prevail in the case of any inconsistency between this Act and any other legislation on children matters. Section 4(2) Despite subsection (1), a provision in another legislation on children matters may prevail if it offers a greater benefit in law to a child. Section 4(3) A judicial or administrative institution or any person making an interpretation as to conflict of any provision or laws shall have regard to the best interests of a child.
Part II
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD
- 10 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 10. Differential treatment not discriminatory
Differential treatment intended to protect the child's best interest is not discrimination.
Section 10. Differential treatment not discriminatory Section 10(1) Notwithstanding sections 8 and 9 , differential treatment of a child which is intended to protect the best interest of the child shall not be deemed to be discrimination against the child. Section 10(2) No differential treatment shall limit any rights of the child under this Act or under the Constitution. - 11 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 11. Right to parental care
Every child has rights to parental care and protection, to live with parents except as provided by the Act, to alternative care when separated, to siblings remaining together where an order applies, and to regular contact with parents unless the Court finds it contrary to the child's best interests; the Court or the Secretary may determine separation and the Secretary must facilitate tracing and reunification on parental request.
Section 11. Right to parental care Section 11(1) Every child has the right to parental care and protection. Section 11(2) Except as is otherwise provided under this Act, every child has the right to live with his or her parents. Section 11(3) Despite subsection (2), a child may be separated from his or her parents where the Court or the Secretary determines that the separation is in the best interest of the child. Section 11(4) Where a child is separated from his or her parents under subsection (3), the child shall be provided with the best alternative care available, in accordance with this Act or any other written law, giving priority to family based alternative care. Section 11(5) Where an order made under subsection (3) applies to two or more siblings, the order shall provide that the siblings be placed under care and protection together and that they may not be separated, except for such compelling reasons as the Court shall record. Section 11(6) Subject to subsection (3), every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with the parent or parents on a regular basis, unless it is shown to the satisfaction of the Court that such contact is not in the best interest of the child. Section 11(7) Where a child is separated from his or her parent or parents otherwise than under an order of the Court, and without the consent of the parent or parents, the Secretary shall, on request by the parent or parents, facilitate the tracing and reunification of the child with the parent or parents. - 12 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 12. Right to social security
Every child whose parent or guardian is unable to maintain the child has the right to social security; the Cabinet Secretary responsible for finance must establish a Child Welfare Fund to facilitate expenses for alternative care and social security programmes.
Section 12. Right to social security Section 12(1) Every child whose parent or guardian is unable to maintain the child has the right to social security as guaranteed by Article 43(3) of the Constitution. Section 12(2)(a) kinship care; Section 12(2)(b) guardianship; Section 12(2)(c) foster care; Section 12(2)(d) adoption; Section 12(2)(e) kafaalah ; Section 12(2)(f) care in emergency situations; Section 12(2)(g) temporary shelter; Section 12(2)(h) supported independent living; Section 12(2)(i) supported child-headed households; Section 12(2)(j) institutional care; and Section 12(2)(k) aftercare. Section 12(3)(a) facilitate the provision of parental care and protection of a child in accordance with the best interest and wellbeing of the child; Section 12(3)(b) place the child as close as possible to his or her usual place of residence; Section 12(3)(c) provide a stable, loving and protective home for the child with permanency as the long-term goal; and Section 12(3)(d) safeguard the child from abuse, violence or exploitation. Section 12(4)(a) the family is the fundamental group in society that provides the care and protection for a child; Section 12(4)(b) the process of providing alternative care to a child shall be participatory, and in the best interest of the child; Section 12(4)(c) poverty, disability or provision of education shall not be the driving factor for removing a child from his or her family and placing him or her in alternative care; Section 12(4)(d) the removal of a child from his or her family for the purpose of placement in alternative care shall be temporary and a last resort, and shall be carefully monitored in accordance with this Act; Section 12(4)(e) siblings shall be kept together during removal and placement in alternative care, unless it is unsafe to do so, or not in the best interest of the siblings; Section 12(4)(f) the placement of a child in alternative care shall be appropriate to the child’s individual needs; Section 12(4)(g) the provision of alternative care shall not be carried out for the primary purpose of advancing the religious, political, economic or any other personal goals of the caregiver; and Section 12(4)(h) the use of institutional care shall be limited and provided under strict standards and regulations, and children under three years of age shall be placed in family-based care settings. Section 12(5) A child under the age of three years shall not be placed in alternative care in an institution, except in compelling circumstances and, in any event, for a period not exceeding three months. Section 12(6)(a) a decision of the Court or of the Secretary; or Section 12(6)(b) the initiative of the child, his or her parents or primary caregivers, or independently by a care provider in the absence of the child’s biological parents. Section 12(7) The Cabinet Secretary responsible for matters relating to finance shall establish a fund under the Public Finance Management Act (Cap. 412A) to be known as the Child Welfare Fund to facilitate the realisation of the right guaranteed by Article 43(3) of the Constitution in respect of all reasonable expenses incurred in relation to alternative care and other social security programmes designed to facilitate the realisation of the welfare of the child. - 13 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 13. Right to basic education
Every child is entitled to free and compulsory basic education; parents or guardians must present children for admission to basic education institutions; the Cabinet Secretary must develop and implement policies (in consultation) to realize the right.
Section 13. Right to basic education Section 13(1) Every child has the right to free and compulsory basic education in accordance with Article 53(1)(b) of the Constitution. Section 13(2) It shall be the responsibility of every parent or guardian to present for admission or cause to be admitted his or her child, as the case may be, to a basic education institution. Section 13(3) The Cabinet Secretary shall, in consultation with the Cabinet Secretary for the time being responsible for education develop and implement policies for the realization by every child of the constitutional right to basic education. - 14 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 14. Right to leisure, recreation and play
Every child is entitled to leisure, play and non-harmful cultural and artistic activities; the government and parents/guardians must permit and facilitate this at public recreational facilities; county governments must set aside accessible public play areas.
Section 14. Right to leisure, recreation and play Section 14(1) In addition to the right to basic education guaranteed under section 13 , every child shall be entitled to leisure, play and participation in non-harmful cultural and artistic activities. Section 14(2) It shall be the responsibility of the government and of every parent or guardian to permit and facilitate the enjoyment by his or her child of the right to leisure and play at any public recreational facility. Section 14(3) Every county government shall appoint and designate specific areas in estates and villages as public child play and recreational facilities, which shall be accessible to all children, including children with disabilities. - 15 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 15. Religion and religious education
Every child is entitled to freedom of thought, conscience, religion and religious education, subject to appropriate parental guidance and the child's best interests.
Section 15. Religion and religious education Section 15(1) Every child shall have the right to freedom of thought, conscience, religion and religious education subject to appropriate parental guidance, and in the best interest of the child. Section 15(2) The religious guidance and education provided to a child under this section shall not in any way limit or hinder the child’s access to and enjoyment of any of the basic rights and fundamental freedoms guaranteed by the Constitution, this Act or any other law. - 16 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 16. Right to healthcare
Every child has the right to the highest attainable standard of healthcare; reproductive health services for children require the express consent of a parent or guardian.
Section 16. Right to healthcare Section 16(1) Every child shall have the right to the highest attainable standard of healthcare services in accordance with Article 43 of the Constitution: Provided that the provisions of reproductive health services to children shall be subject to the express consent of the parent or guardian. Section 16(2) Without prejudice to the generality of subsection (1), every child has the right to enjoy the best attainable state of physical, mental and psychological health. Section 16(3) In pursuance of the right to healthcare services under this section, every child has the right to privacy and a child-friendly environment. Section 16(4)(a) access to age-appropriate information on health promotion and the prevention and treatment of ill-health and disease, mental health and reproductive health; Section 16(4)(b) access to information regarding their health status; Section 16(4)(c) access to information regarding the causes and treatment of his or her sickness; and Section 16(4)(d) confidentiality regarding his or her health status and the health status of a parent, care-giver or family member, except when maintaining such confidentiality is not in the best interests of the child; Section 16(4)(e) access to age-appropriate information that affirms human dignity in human relationships and promotes sexual risk avoidance. Section 16(5) The information provided to a child pursuant to this section shall be in a format accessible to the child, having regard to the special needs of children with disabilities. Section 16(6) It shall be the responsibility of every parent or guardian to present his or her child who is in need of health care to a suitable health care facility and to ensure that the child receives appropriate health care services. Section 16(7) Any parent or guardian who willfully neglects, fails or refuses to present his or her child in need of health care to a health care facility for purposes of treatment commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand shillings or, in default, to imprisonment for a term not exceeding thirty days. Section 16(8) No charge preferred under subsection (7) shall operate as a bar to any relevant charges under the Penal Code ( Cap. 63 ). Section 16(9) Nothing in this section shall be presumed to abrogate parental obligation to education of their children. - 17 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 17. Right to inheritance
Every child has the right to inherit property; children are entitled to equal treatment; no person may disinherit a child; contraventions are offences with penalties and restitution rights for the child.
Section 17. Right to inheritance Section 17(1) Every child shall have the right to inherit property in accordance with the Law of Succession Act ( Cap. 160 ). Section 17(2)(a) every child shall be entitled to equal treatment and protection, and to the benefit of the law; and Section 17(2)(b) no person shall disinherit or cause a child to be disinherited on any grounds, including age, origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, health status, pregnancy, social, political, economic or other status, race, disability, tribe, residence or local connection. Section 17(3) A person who contravenes subsection (2) or otherwise deprives a child of any property or benefit accruing to the child under or by virtue of the law relating to inheritance commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding two years or to a fine not exceeding five million shillings, or to both. Section 17(4) In addition to the penal sanctions prescribed in subsection (3), the child shall be entitled to full restitution or the property of benefit accruing to the child. Section 17(5) The provisions of subsections (3) and (4) shall apply without prejudice to the provisions of section 45 of the Law of Succession Act (Cap. 160). Section 17(6) The action contemplated in subsection (4) may be brought by a duly constituted next friend or by any other person in accordance with Article 22 of the Constitution. - 18 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 18. Protection from child labour
No person must subject a child to child labour, domestic servitude, economic exploitation, hazardous work, or work that interferes with education or is likely to harm the child’s development; and no person must use, procure or offer a child for slavery-like practices.
Section 18. Protection from child labour Section 18(1) No person shall subject a child to child labour, domestic servitude, economic exploitation or any work or employment which is hazardous, interferes with the child’s education or is likely to be harmful to the child’s health or physical, mental, moral or social development. Section 18(2)(a) "employment" has the meaning assigned to it under section 52 of the Employment Act (Cap. 226); Section 18(2)(b) the provisions of Part VII of the Employment Act (Cap. 226) shall apply with necessary modifications in addition to, and not in substitution for, the provisions of this Act relating to the employment of children or subjection of children to child labour. Section 18(3) No person shall use, procure or offer a child for slavery or practices similar to slavery, including begging, debt bondage, servitude, or forced or compulsory labour or provision of personal services, whether or not for gain. Section 18(4)(a) children who have attained the age of thirteen but have not attained the age of sixteen years; and Section 18(4)(b) children who have attained the age of sixteen but have not attained the age of eighteen years. - 19 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 19. Protection from armed conflicts
Prohibits subjecting or recruiting children into armed conflict and requires the State to set up mechanisms for protection, care, rehabilitation and reintegration of affected children.
Section 19. Protection from armed conflicts Section 19(1) No person shall subject a child to hostilities, social strife or recruitment in armed conflict, whether internal or cross border. Section 19(2) In situations of armed conflict, the state shall establish mechanisms for the protection, care and respect of the rights of the child recognized under the Constitution, this Act or any other written law. Section 19(3) The State shall establish mechanisms to facilitate the protection, rehabilitation, care, recovery and re- integration into normal social life, of any child who may be a recruit or victim of armed conflict, social strife or natural disaster. Section 19(4) No person shall subject a child to armed conflict, hostilities or recruit a child in armed conflicts, and where armed conflict occurs, respect for and protection and care of children shall be maintained in accordance with the law. - 20 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 20. Rights of children with disabilities
Children with disabilities have entitlements to dignity and free appropriate medical treatment, special care, education and training; they also have rights under the Persons with Disabilities Act; the State must establish institutions and facilities to progressively realize these rights.
Section 20. Rights of children with disabilities Section 20(1) A child with disability shall, in addition to the rights guaranteed under the Constitution, have the right to be treated with dignity, and to be accorded appropriate medical treatment, special care, education and training free of charge. Section 20(2) In addition to the right under subsection (1), a child with disability shall have the rights and privileges provided under the Persons with Disabilities Act (Cap. 133). Section 20(3) The State shall establish such institutions or facilities including child care facilities, health facilities and educational institutions as may be necessary to ensure the progressive realization of the right under this section. - 21 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 21. Rights of intersex children
An intersex child is entitled to be treated with dignity and to appropriate medical treatment, special care, education, training and recognition as a special needs category in social protection services.
Section 21. Rights of intersex children Section An intersex child shall have the right to be treated with dignity, and to be accorded appropriate medical treatment, special care, education, training and consideration as a special need category in social protection services. - 22 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 22. Protection from abuse, etc.
Section 22 criminalises psychological and child abuse, certain online abuses (including grooming, solicitation and cyberbullying) and intentional transmissions through computer systems that bully a child; penalties include up to five or ten years imprisonment and fines up to two million shillings.
Section 22. Protection from abuse, etc. Section 22(1)(a) psychological abuse; or Section 22(1)(b) child abuse. Section 22(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding two million shillings, or to both. Section 22(3)(a) proposes or solicits to meet a child for the purpose of engaging in sexual activities contrary to the provisions of the Sexual Offences Act (Cap. 63A); Section 22(3)(b) transmits or causes to be transmitted any obscene material, or otherwise makes such material accessible to children; or Section 22(3)(c) in any other way, subjects a child to online abuse, harassment or exploitation, whether through social networks, playing online games or by use of mobile phones or other electronic devices, Section 22(4) The reference in subsection (3)(c) to online abuse includes cyber bullying, grooming and solicitation, cyber enticement, cyber harassment and cyber stalking. Section 22(5) A person who intentionally transmits or causes the transmission of any communication through a computer system or network to bully a child, and such communication places the child in fear of death, violence or bodily harm, commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding two million shillings, or to both. Section 22(6) In this section "bullying" includes cyber bullying or the use of information communication technology calculated to harm a victim or victims in deliberate, repeated and hostile ways contrary to the Computer Misuse and Cybercrimes Act (Cap. 79C). - 23 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 23. Protection from harmful cultural practices, etc.
The section prohibits a person from subjecting a child to specified harmful cultural practices (listed in subsection (1)); a person who contravenes subsection (1) commits an offence punishable by at least three years' imprisonment or a fine of at least five hundred thousand shillings or both; causing a child's death from such a procedure is an offence punishable by life imprisonment.
Section 23. Protection from harmful cultural practices, etc. Section 23(1)(a) in the case of a male child, forced circumcision; Section 23(1)(b) female genital mutilation; Section 23(1)(c) child marriage; Section 23(1)(d) virginity testing; Section 23(1)(e) girl child beading; Section 23(1)(f) except with the advice of a medical geneticist, organ change or removal in case of an intersex child; or Section 23(1)(g) any other cultural or religious rite, custom or practice that is likely to negatively affect the child's life, health, social wellbeing, dignity, physical, emotional or psychological development. Section 23(2) A person who contravenes the provisions of subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term of not less than three years or to a fine of not less than five hundred thousand shillings, or to both. Section 23(3) A person who causes death to a child, whether directly or indirectly, in consequence of other related procedure in contravention of subsection (1) (a) commits an offence, and shall, on conviction, be liable to imprisonment for life. - 24 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 24. Protection from drugs and substance abuse
The provision prohibits a person from using specified harmful drugs or being involved in producing, trafficking, selling, storing or distributing them; contravention is an offence punishable by up to five years imprisonment or a fine of at least five hundred thousand shillings, or both.
Section 24. Protection from drugs and substance abuse Section 24(1)(a) the use of hallucinogens, narcotics, alcohol, tobacco products, glue, psychotropic drugs or any other drugs that may be declared harmful by the Cabinet Secretary responsible for matters relating to health; or Section 24(1)(b) involvement in the production, trafficking, sale, storage or distribution of the any of the drugs or substances referred to in paragraph (a). Section 24(2) A person who contravenes the provisions of subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not less than five hundred thousand shillings, or to both. - 25 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 25. Right to freedom from torture etc.
Every child has the right to be free from torture and cruel, inhuman or degrading treatment or punishment.
Section 25. Right to freedom from torture etc. Section 25(1) Every child has the right to freedom from torture and cruel, inhuman or degrading treatment or punishment as provided under Article 25 (a) of the Constitution. Section 25(2) The assignment of any task or infliction of punishment by way of penalty for any offence committed by a child under any law shall not be construed as a contravention of the right specified in subsection (1) Provided that any such punishment shall be humane and preserve the child’s dignity, and be commensurate with the evolving capacity of the child. Section 25(3)(a) unlawfully deprives a child of his or her liberty; Section 25(3)(b) subjects the child to— Section 25(3)(c) torture or other cruel and inhuman or degrading treatment, including corporal punishment, Section 25(3)(d) any cultural or religious practice which dehumanizes or is injurious to the physical, mental and emotional wellbeing of the child, - 26 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 26. Detention of children in conflict with the law
The competent authorities must take measures to ensure humane treatment and respect for dignity of children deprived of liberty, and the State must provide legal and other assistance and family contact to apprehended and detained children; children with disabilities deprived of liberty are entitled to guarantees under the Constitution, this Act and the Persons with Disabilities Act.
Section 26. Detention of children in conflict with the law Section 26(1) A child shall not be deprived of his or her liberty or otherwise treated in a manner contrary to Articles 29 (f) and 51 of the Constitution, except in accordance with the Persons Deprived of Liberty Act (Cap. 90A). Section 26(2) Children deprived of liberty, detained or held in custody or committed to an institution shall be held separate from adults in facilities, including transportation facilities, appropriate to their special needs and age. Section 26(3) Male, female and intersex children deprived of liberty shall be accommodated in separate facilities. Section 26(4) Where children with disabilities are deprived of liberty under any legal process, they shall be treated on an equal basis with others and shall be entitled to such guarantees as are in accordance with the Constitution, this Act and the Persons with Disabilities Act (Cap. 133). Section 26(5) Children with disabilities deprived of liberty or accommodated in child protection units shall be accommodated in facilities that adequately meet their personal needs, taking into account the condition and nature of the disability. Section 26(6) The competent authorities shall take appropriate measures to facilitate humane treatment and respect for the privacy, legal capacity and inherent human dignity of children deprived of liberty, including children with disabilities. Section 26(7) The detention of a child under this Act or any other written law shall be a matter of last resort and in conformity with Article 53 (f) of the Constitution. Section 26(8) A child who is apprehended and detained shall be accorded legal and other assistance by the State as well as contact with his or her family. - 27 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 27. Privacy
No person must subject a child to arbitrary or unlawful interference with their privacy, family or private affairs, correspondence, or attacks on honour or reputation. Parents or legal guardians have the right to exercise reasonable supervision over their children. Personal data concerning a child must be processed only in accordance with the Data Protection Act (Cap. 411C).
Section 27. Privacy Section 27(1) No person shall subject a child to arbitrary or unlawful interference with his or her privacy, family or private affairs, or correspondence, or to attacks upon his or her honour or reputation. Section 27(2) Without prejudice to the generality of subsection (1), parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. Section 27(3) The personal data concerning a child shall be processed only in accordance with the provisions of the Data Protection Act (Cap. 411C). - 28 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 28. Right to assemble, demonstrate, petition and participate in public life
Every child has the right to peaceably assemble, demonstrate, present petitions, and participate in matters affecting children; they may express views and have them given due weight; these rights are subject to others' rights and must be exercised in specified ways.
Section 28. Right to assemble, demonstrate, petition and participate in public life Section 28(1) Every child has the right, peaceably and unarmed, to assemble, demonstrate or present petitions to public authorities, and to freely participate in matters affecting children through lawfully established forums, associations, and assemblies at the national and county levels. Section 28(2) The right of a child to assemble, demonstrate, and to present petitions, shall be subject to the rights of others. Section 28(3) In addition to the rights guaranteed under subsections (1) and (2), every child shall have the right to express their views in all matters affecting them, and have those views heard and given due weight in accordance with the child's age and maturity. Section 28(4)(a) in accordance with the national values and principles of governance prescribed in Article 10 (2) of the Constitution. Section 28(4)(b) voluntarily by a child and without any undue influence, coercion, inducement or enticement by any person. Section 28(5) The Cabinet Secretary may issue guidelines to give effect to this section. - 29 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 29. Enforcement of rights under this Part
Specified persons may bring court proceedings to enforce children's rights; the High Court must hear such applications and may order remedies; the Cabinet Secretary may make regulations to implement this Part.
Section 29. Enforcement of rights under this Part Section 29(1) Any person may institute court proceedings claiming that any right or fundamental freedom of the child protected under this Part has been denied, violated or infringed, or is threatened. Section 29(2)(a) a parent or guardian acting in the interest of their child; Section 29(2)(b) a person acting on behalf of a parent or guardian who cannot act on behalf of their child or children; Section 29(2)(c) a person acting as a member of, or in the interest of, a group or class of children; Section 29(2)(d) a person acting in the public interest; or Section 29(2)(e) a duly registered association acting in the interest of one or more of its members, whose primary object is the promotion and protection of children’s rights. Section 29(3) The High Court shall hear and determine an application under subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Part. Section 29(4) Any court cost under this section shall be kept at a minimum. Section 29(5)(a) rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it or under this section, including rules with respect to the time within which applications may be brought, and references shall be made to the High Court; Section 29(5)(b) rules for the enforcement of human rights and fundamental freedoms of the child; and Section 29(5)(c) practice guidelines for the Children’s Court. Section 29(6) The Cabinet Secretary may make regulations for the better carrying into effect the provisions of this Part, including regulations for the effective implementation of alternative care arrangements. - 5 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 5. Realization of the rights of the child
The State must take progressive measures to fully realize the rights of the child in this Part; the Cabinet Secretary must ensure policies, laws and programmes are developed, reviewed and implemented to give effect to that duty.
Section 5. Realization of the rights of the child Section 5(1) The State shall take measures to progressively achieve the full realization of the rights of the child set out in this Part. Section 5(2) The Cabinet Secretary shall ensure development, review and implementation of relevant policies, laws and programs to give effect to subsection (1). - 6 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 6. Survival and development of the child
Every child is entitled to life, survival, wellbeing, protection and development; no court may impose the death penalty for offences committed by a child.
Section 6. Survival and development of the child Section 6(1) Every child shall have the right to life, survival, wellbeing, protection and development. Section 6(2) For the purposes of subsection (1), no court shall pass a death sentence for any offence committed by a child. - 7 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 7. Name and nationality
Every child has rights to a name and nationality, to be registered after birth, and (where applicable) to know and be cared for by their parents; the Principal Registrar must ensure correct documentation of intersex children at birth; a young child found in Kenya with unknown parents and nationality is presumed a citizen by birth.
Section 7. Name and nationality Section 7(1) Every child shall have a right to a name and nationality and, as far as possible, the right to know and be cared for by their parents. Section 7(2) Every child has the right to be registered in the Register of Births immediately after birth in accordance with the Births and Deaths Registration Act ( Cap. 149 ). Section 7(3) The Principal Registrar shall take measures to ensure correct documentation and registration of intersex children at birth. Section 7(4) A child found in Kenya who is or appears to be less than eight years of age, and whose nationality and parents are not known, shall be presumed to be a citizen by birth. - 8 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 8. Best interests of the child
The best interests of the child shall be the primary consideration; children must be given opportunity to express their opinions, and the Cabinet Secretary must issue guidelines to give effect to this section.
Section 8. Best interests of the child Section 8(1)(a) the best interests of the child shall be the primary consideration; Section 8(1)(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. Section 8(2)(a) safeguard and promote the rights and welfare of the child; Section 8(2)(b) conserve and promote the welfare of the child; and Section 8(2)(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest. Section 8(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity. Section 8(4) The Cabinet Secretary shall issue guidelines to give effect to this section. - 9 Verify source ↗
SAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD - 9. Non-discrimination
No person must discriminate against a child on specified grounds.
Section 9. Non-discrimination Section 9(1) No person shall discriminate against a child on the grounds of age, origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, health status, pregnancy, social, political, economic or other status, race, disability, tribe, residence or local connection or any other status. Section 9(2) A person who contravenes sub-section (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding two hundred thousand shillings or to both.
Part III
PARENTAL RESPONSIBILITY
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PARENTAL RESPONSIBILITY - 30. Duties and responsibilities of a child
A child must work for the cohesion of the family.
Section 30. Duties and responsibilities of a child Section work for the cohesion of the family; - 31 Verify source ↗
PARENTAL RESPONSIBILITY - 31. Equal parental responsibility
Defines "parental responsibility" as the duties, rights, powers, responsibilities and authority a parent has regarding a child and lists parental duties (nutrition, shelter, water and sanitation, clothing, medical care including immunization, education, guidance), duties to protect the child, administrative responsibilities (name, birth registration, guardianship, property), migration facilitation/restriction, burial arrangements, a duty to ensure care during temporary absence, a permission for carers without parental responsibility to act reasonably for the child's welfare, and grants the Cabinet Secretary power to make regulations.
Section 31. Equal parental responsibility Section 31(1) In this Act, "parental responsibility" means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child. Section 31(2)(a) basic nutrition; Section 31(2)(a)(i) basic nutrition; Section 31(2)(a)(ii) shelter; Section 31(2)(a)(iii) water and sanitation facilities; Section 31(2)(a)(iv) clothing; Section 31(2)(a)(v) medical care, including immunization; Section 31(2)(a)(vi) basic education; and Section 31(2)(a)(vii) general guidance, social conduct and moral values; Section 31(2)(b) the duty to protect the child from neglect, abuse, discrimination or other differential treatment; Section 31(2)(c) provide parental guidance in religious, moral, social, cultural and other values that are not harmful to the child; Section 31(2)(c)(i) provide parental guidance in religious, moral, social, cultural and other values that are not harmful to the child; Section 31(2)(c)(ii) determine the name of the child; Section 31(2)(c)(iii) procure registration of the birth of his or her child; Section 31(2)(c)(iv) appoint a legal guardian in respect of the child; Section 31(2)(c)(v) receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child; Section 31(2)(c)(vi) facilitate or restrict the migration of the child from or within Kenya; Section 31(2)(c)(vii) upon the death of the child, to arrange for the burial, cremation of the child or any other acceptable method of interment; and Section 31(2)(d) the duty to ensure that, during the temporary absence of the parent or guardian, the child shall be committed to the care of a fit person. Section 31(3)(a) any obligation which such person may have in relation to the child, such as a statutory duty to maintain the child; or Section 31(3)(b) any rights which, in the event of the child’s death, such person may have in relation to the administration of the child’s estate in accordance with the Law of Succession Act ( Cap. 160 ). Section 31(4) A person who does not have parental responsibility over a particular child, but has care and control over the child, may, subject to the provisions of this Act, do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare. Section 31(5) The Cabinet Secretary may make regulations to give effect to the provisions of this section. - 32 Verify source ↗
PARENTAL RESPONSIBILITY - 32. Equal parental responsibility
Parents share parental responsibility equally; neither parent has a superior right; persons with parental responsibility have duties and powers prescribed by law; they must not contravene court orders; they may not assign their responsibilities but may make temporary arrangements during absence.
Section 32. Equal parental responsibility Section 32(1) Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock. Section 32(2) A person who has parental responsibility over a child shall at all times have the duties, powers and responsibilities as are prescribed in this Act or any other written law. Section 32(3) A person with parental responsibility over a child shall not act in any way that contravenes any order of a court of competent jurisdiction made with respect to the child under this Act or any other written law. Section 32(4) A person who has parental responsibility over a child may not relinquish or assign such responsibilities to another person. Section 32(5) Nothing in subsection (4) prevents a person from making temporary arrangements, during his or her absence, to allow a fit person to exercise his or her parental responsibilities over a child for and on his or her behalf. Section 32(6) The making of the temporary arrangements referred to in subsection (4) by a person shall not affect or limit that person’s liability arising from his or her failure to exercise his or her responsibility under this section. - 33 Verify source ↗
PARENTAL RESPONSIBILITY - 33. Parental responsibility agreement
Unmarried parents may enter a prescribed parental responsibility agreement specifying individual responsibilities for the child; the Court may permit a child to apply if the child understands, and failure to notify a change of the child's residential address is an offence punishable by up to one year imprisonment or a fine not exceeding two hundred thousand shillings, or both.
Section 33. Parental responsibility agreement Section 33(1) Parents of a child and who are not married to each other may enter into a parental responsibility agreement, in the prescribed form, whereby both, in the best interests of the child, designate and agree on clear individual responsibilities towards the child. Section 33(2)(a) how the child or children shall spend time with each parent; Section 33(2)(b) how the parents shall make joint decisions on matters relating to their respective parenting responsibilities, including religious upbringing; Section 33(2)(c) contact information; Section 33(2)(d) visitation schedule; Section 33(2)(e) holiday and school break schedule; Section 33(2)(f) transport and travel within and outside Kenya; Section 33(2)(g) responsibility for health insurance and healthcare services; Section 33(2)(h) the need for notification of parental movement in cases where either or both parents relocate or change residence; Section 33(2)(i) the manner in which decisions relating to the education of the child shall be made; and Section 33(2)(j) the joint and several responsibilities expenses for extra-curricular activities of the child. Section 33(3)(a) a person who has parental responsibility over the child; or Section 33(3)(b) a child, with the leave of the Court. Section 33(4) The Court may only grant leave under subsection (3)(b) if it is satisfied that the child sufficiently understands the nature and effect of the application made to the Court. Section 33(5)(a) hinders another person who has access to a child, or who has parental responsibility in respect of that child in accordance with such order or agreement, from exercising such access or responsibilities; or Section 33(5)(b) abducts the child or otherwise prevents that other person from exercising such access or responsibilities in respect of the child, Section 33(6) A person who, having care or custody of a child in respect of whom another person has access or parental responsibility pursuant to a parental responsibility agreement or to an order of the court, fails to notify that other person in writing of the change in his or her residential address at which the child resides, commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding two hundred thousand shillings, or to both. - 34 Verify source ↗
PARENTAL RESPONSIBILITY - 34. Transmission of parental responsibility
Specifies who has parental responsibility when a parent dies and who may object or apply to court about testamentary guardians; sets that a spouse on marriage exercises parental responsibility.
Section 34. Transmission of parental responsibility Section 34(1) On the death of the mother of the child, the father of the child, if still living, shall have parental responsibility for the child either alone or with the testamentary guardian (if any) appointed by the mother. Section 34(2) On the death of the father of a child, the mother of the child, if living, shall exercise parental responsibility in respect of the child either alone or with the testamentary guardian (if any) appointed by the father. Section 34(3) The surviving parent of the child shall be entitled to object to any testamentary guardian appointed by either of them acting, and may apply to the court for the revocation of the appointment of the testamentary guardian. Section 34(4)(a) a testamentary guardian appointed by either of the parents; Section 34(4)(b) a guardian appointed by the court on application in the prescribed form; Section 34(4)(c) the person in whose power a residence order was made prior to the death of the child’s father and mother, and which is for the time being in force; Section 34(4)(d) a fit person appointed by the Court on application in the prescribed form; Section 34(4)(e) in the absence of the persons specified in paragraphs (a), (b) (c) and (d), a relative of the child; or Section 34(4)(f) failing arrangement under paragraph (e), by any other fit person on placement of the child in alternative family-based care. Section 34(5) The relatives of the deceased parent of the child, may, if they consider the surviving parent of the child to be unfit to exercise parental responsibility for the child, apply to the court to make such appropriate orders as may be necessary in the circumstances of the case to safeguard the best interests of the child. Section 34(6) Where the parent of a child marries, the parent’s spouse shall exercise parental responsibility under the provisions of this Act, whether or not that spouse has legally adopted the child. - 35 Verify source ↗
PARENTAL RESPONSIBILITY - 35. Extension of responsibility beyond eighteenth birthday
The Court may extend parental responsibility for a person beyond their 18th birthday if it is satisfied that special circumstances affecting the child's welfare necessitate the extension; this can occur of the Court's own motion or on application by any person.
Section 35. Extension of responsibility beyond eighteenth birthday Section 35(1) Parental responsibility in respect of a child may be extended by an order of the Court after the date on which the child attains the age of eighteen years if the Court is satisfied, either of its own motion or on application by any person, that special circumstances exist with regard to the welfare of the child that would necessitate the making of such extension. Section 35(2) The special circumstances referred to in subsection (1) include cases where the child is in need of extended parental responsibility by reason of special needs arising from severe disability or developmental disorder. Section 35(3)(a) the parent; Section 35(3)(b) any person who has parental responsibility over the child or by a relative of a child; Section 35(3)(c) the Secretary; or Section 35(3)(d) the child. - 36 Verify source ↗
PARENTAL RESPONSIBILITY - 36. Regulations and guidelines
The Cabinet Secretary must prescribe regulations to implement this Part and to guide programmes and actions that preserve and strengthen families.
Section 36. Regulations and guidelines Section The Cabinet Secretary shall prescribe regulations to give effect to this Part and, in particular, to guide the formulation and implementation of programmes and actions to promote the preservation and strengthening of families.
Part IV
ADMINISTRATION OF CHILDREN’S SERVICES
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ADMINISTRATION OF CHILDREN’S SERVICES - 37. Office of the Secretary of Children Services
Establishes the Office of the Secretary of Children Services; the Secretary is to be appointed by the Public Service Commission and must meet listed qualifications.
Section 37. Office of the Secretary of Children Services Section 37(1) There is established the Office of the Secretary of Children Services which shall be an office in the public service. Section 37(2) The Secretary shall be recruited through a competitive process and appointed by the Public Service Commission. Section 37(3)(a) is a citizen of Kenya; Section 37(3)(b) holds a relevant bachelors and masters’ degree in social sciences from a university recognized in Kenya; Section 37(3)(c) has at least ten years’ experience in social work, education, administration and management, public administration, human resource or finance management; and Section 37(3)(d) meets the requirements of Chapter Six of the Constitution. - 38 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 38. Functions of the Secretary
The Secretary must regulate, coordinate, manage and supervise children’s officers in delivering welfare and administering children’s services.
Section 38. Functions of the Secretary Section regulate, coordinate, manage, and supervise children’s officers in delivery of the welfare and administration of children services; - 39 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 39. Powers of the Secretary
The Secretary has power to do acts necessary to carry out the Secretary's functions, may appoint, assign or delegate functions to officers or persons, and may institute proceedings for contraventions relating to child maintenance, neglect and abuse.
Section 39. Powers of the Secretary Section 39(1) The Secretary shall have the power to do all such acts as the Secretary may deem to be necessary to carry out the functions of the Secretary and may appoint, assign or delegate a function to an officer or a person to carry out a function assigned under this Act. Section 39(2) Without prejudice to the powers of the Director of Public Prosecution, the Secretary shall have the power to institute proceeding in respect of any contravention relating to child maintenance, child neglect and abuse. - 40 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 40. Appointment of chief officers, children officers and such other officers
The Public Service Commission must competitively recruit and appoint chief officers, children officers and any other officers necessary to assist the Secretary in performing their duties under this Act.
Section 40. Appointment of chief officers, children officers and such other officers Section The Public Service Commission shall competitively recruit and appoint chief officers, children officers and such other officers as may be necessary to assist the Secretary in the performance of their duties under this Act. - 41 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 41. Establishment of National Council for Children’s Services
Establishes the National Council for Children’s Services as a body corporate and lists powers including suing and being sued, acquiring and disposing of property, entering contracts, receiving grants and performing acts necessary to carry out its functions.
Section 41. Establishment of National Council for Children’s Services Section 41(1) There is established a Council to be known as the National Council for Children’s Services, which shall be a body corporate with perpetual succession and a common seal. Section 41(2)(a) suing and being sued; Section 41(2)(b) taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; Section 41(2)(c) entering into contracts; Section 41(2)(d) receiving grants and gifts in support of projects, programmes and actions designed to promote and protect the rights of the child; and doing or performing all such other things or acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate. - 42 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 42. Functions of the Council
The Council is the central authority for the purposes of the Hague Convention on Inter-Country Adoptions.
Section 42. Functions of the Council Section be the central authority for the purposes of the Hague Convention on Inter-Country Adoptions; - 43 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 43. Composition of the Council
Section 43 lists who composes the Council, gender and diversity composition requirements, qualifications for members, and states that the Chief Executive Officer of the Council shall be the secretary to the Council.
Section 43. Composition of the Council Section 43(1)(a) a Chairperson appointed by the President; Section 43(1)(b) the Principal Secretary in the Ministry for the time being responsible for matters relating to children services or a representative; Section 43(1)(c) the Principal Secretary for the time being responsible for matters relating to finance or a representative; Section 43(1)(d) the Attorney-General or a representative; Section 43(1)(e) one person representing the Council of Governors; Section 43(1)(f) one person representing Public Benefits Organisations concerned in matters related to children activities; Section 43(1)(f)(i) one person representing Public Benefits Organisations concerned in matters related to children activities; Section 43(1)(f)(ii) one person representing faith based organisations; Section 43(1)(f)(iii) one person representing the private sector; Section 43(1)(g) the Secretary of children’s services; and Section 43(1)(h) the Chief Executive Officer of the Council, who shall be the secretary to the Council. Section 43(2)(a) not more than two thirds of the Council shall be comprised of one gender; Section 43(2)(b) persons with disabilities, vulnerable and marginalised groups shall be accorded equal opportunity; and Section 43(2)(c) the appointments reflect the ethnic and regional diversity of the country. Section 43(3)(a) is a citizen of Kenya; Section 43(3)(b) holds a relevant post graduate degree in social sciences from a university recognized in Kenya; Section 43(3)(c) has at least fifteen years’ experience in corporate governance, administration and management, public administration, human resource or finance management; Section 43(3)(d) is knowledgeable in or has actively contributed to the promotion of the rights and welfare of children; and Section 43(3)(e) meets the requirements of Chapter Six of the Constitution. Section 43(4) The conduct of business and affairs of the Council shall be as set out in the Second Schedule to this Act. - 44 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 44. Term of Office.
Members appointed under section 43(1)(a),(e) and (f) hold office for three years and may be reappointed for one further three-year term; Members except the Chief Executive Officer serve part-time.
Section 44. Term of Office. Section 44(1) The Members of the Council appointed under section 43 (1) (a), (e) and (f) shall hold office for term of three years, and shall be eligible for reappointment for one further term of three years. Section 44(2) The Members, other than the Chief Executive Office, shall serve on a part-time basis. - 45 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 45. Vacancy of office of chairperson and members
If a vacancy occurs in the office of Chairperson or member, the appointing authority must fill it within sixty days; a member appointed to fill a vacancy serves for the term specified in section 44.
Section 45. Vacancy of office of chairperson and members Section 45(1)(a) dies; Section 45(1)(b) resigns from office by notice in writing addressed to the respective appointing Authority specified in section 41 ; or Section 45(1)(c) is removed from office under any of the circumstances specified in Chapter Six of the Constitution. Section 45(2) Where a vacancy occurs in the office of Chairperson or member of the Council, the appointing authority shall fill the vacancy within sixty days next following the notification of vacancy referred to in subsection (1). Section 45(3) A member appointed under subsection (2) to fill a vacancy shall serve for the respective term specified in section 44 . - 46 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 46. Remuneration of members of the council
The Council must pay its members remuneration or allowances as determined by the Cabinet Secretary in consultation with the Salaries and Remuneration Commission.
Section 46. Remuneration of members of the council Section The Council shall pay its members such remuneration or allowances as the Cabinet Secretary shall, in consultation with the Salaries and Remuneration Commission, determine. - 47 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 47. Committees of the Council
The Council may establish committees and may engage experts or consultants to help discharge its functions.
Section 47. Committees of the Council Section 47(1) The Council may, from time to time, establish committees for the better carrying out of its functions. Section 47(2) The Council may engage such experts or consultants as the Council may consider necessary for the effective discharge of its functions under this Act or any other written law. - 48 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 48. Staff of the Council
Section 48. Staff of the Council Section 48(1) There shall be a Chief Executive Officer of the Council who shall be competitively recruited and appointed by the Council and whose terms and conditions of service shall be determined by the
Section 48. Staff of the Council Section 48(1) There shall be a Chief Executive Officer of the Council who shall be competitively recruited and appointed by the Council and whose terms and conditions of service shall be determined by the Council on advice of the Salaries and Remuneration Commission. Section 48(2)(a) is a citizen of Kenya; Section 48(2)(b) holds a relevant post graduate degree from a university recognized in Kenya; Section 48(2)(c) has at least ten years’ experience in social work, administration and management, public administration, human resource or finance management; and Section 48(2)(d) meets the requirements of Chapter Six of the Constitution. Section 48(3) The Chief Executive Officer shall hold office for a term of five years renewable for one further term of five years. Section 48(4) The Chief Executive Officer shall, in the performance of the functions and duties of his or her office, be responsible to the Council. Section 48(5)(a) the secretary to the Council; Section 48(5)(b) the head of the secretariat of the Council; Section 48(5)(c) the accounting officer of the Council; Section 48(5)(d) the custodian of all records of the Council; and Section 48(5)(e) executing decisions of the Council; Section 48(5)(e)(i) executing decisions of the Council; Section 48(5)(e)(ii) assigning duties to and supervising the staff of the Council, and for co-ordinating and regulating their work in the execution of the functions of the Council; Section 48(5)(e)(iii) facilitating, co-ordinating and ensuring the effective discharge of the function of the Council; and Section 48(5)(e)(iv) the performance of such other duties as may be assigned by the Council under this Act or any other written law. Section 48(6)(a) inability to perform the functions of his or her office; Section 48(6)(b) gross misconduct or misbehavior; Section 48(6)(c) incompetence or neglect of duty; or Section 48(6)(d) any other ground that would justify removal from office under his or her terms and conditions of service. Section 48(7) The removal of the Chief Executive Officer from his or her office shall be in accordance with the principles of fair administrative action prescribed in Article 47 of the Constitution and the law relating to fair administrative action. Section 48(8) The staff appointed under subsection (1) shall represent the ethnic, gender and social diversity of the country and serve on such terms and conditions as the Council may, in consultation with the Salaries and Remuneration Commission, determine. Section 48(9) The national government may, upon request by the Council, second to the Council such number of public officers as the Council may require. Section 48(10) A public officer seconded to the Council shall, during the period of secondment, be deemed to be an officer of the Council, and shall be subject only to the direction and control of the Council. Section 48(11)(a) persons with disabilities; and Section 48(11)(b) regional and ethnic diversity of the people of Kenya. - 49 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 49. The common seal of the Council
The Council decides the form of its common seal; the Chief Executive Officer must keep it in custody; the chairperson and the Chief Executive Officer (or any person authorized by Council resolution) must authenticate when the seal is affixed.
Section 49. The common seal of the Council Section 49(1) The seal of the Council shall be such device as may be determined by the Council and shall be kept in the custody of the Chief Executive Officer, and shall not be used except on the order of the Council. Section 49(2) The affixing of the seal shall be authenticated by the chairperson and the Chief Executive Officer or any other person authorized in that behalf by a written resolution of the Council. Section 49(3) The common seal of the Council, when affixed to a document and duly authenticated, shall be judicially and officially noticed and, unless the contrary is proved, any necessary order or authorization of the Council under this section shall be presumed to have been duly given. - 50 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 50. Protection from personal liability
Council members and its officers, staff or agents are not personally liable for actions done in good faith to execute Council functions; the Council remains liable to pay compensation or damages for injuries arising from exercise of powers under this Act or other law.
Section 50. Protection from personal liability Section 50(1) A matter or thing done by a member of the Council or any officer, staff or agent of the Council shall not render such member, officer, staff or agent personally liable for any action, claim or demand whatsoever if the matter or thing is done in good faith for executing the functions, powers or duties of the Council. Section 50(2) The provisions of subsection (1) shall not relieve the Council from liability to pay compensation or damages to any person for any injury suffered by them, their property or any of their interests and arising directly or indirectly from the exercise of any power conferred under this Act or any other written law. - 51 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 51. Proceedings against the Council
Proceedings brought against the Council are treated as proceedings against the national government and are subject to the Government Proceedings Act (Cap. 40) and the Public Authorities Limitations Act (Cap. 39); notices or other processes for such proceedings must be served on the Chief Executive Officer.
Section 51. Proceedings against the Council Section 51(1) Any proceedings against the Council shall be deemed to be proceedings against the national government, and shall be subject to the Government Proceedings Act ( Cap. 40 ) and the Public Authorities Limitations Act (Cap. 39). Section 51(2) Any notice or other processes in respect of legal proceedings contemplated in subsection (1) shall be served upon the Chief Executive Officer. - 52 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 52. Powers of the Council
The Council has power to do acts necessary or convenient to carry out its functions and may carry out activities alone or with others.
Section 52. Powers of the Council Section The Council shall, for the purpose of carrying out its functions, have power to do all such acts and things as appear to it to be requisite, advantageous or convenient for or in connection with the carrying out of its functions or incidental to their proper discharge, and may carry out any activities in that behalf either alone or in association with other persons or bodies. - 53 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 53. Regulations by the Council
The Council may make regulations, with the approval of the Cabinet Secretary, to enable the effective discharge of its functions.
Section 53. Regulations by the Council Section The Council may, with the approval of the Cabinet Secretary, make regulations for the effective discharge of its functions. - 54 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 54. County Children Advisory Committees
The Council may establish County Children Advisory Committees for better performance of its functions at the county level in accordance with the Act.
Section 54. County Children Advisory Committees Section 54(1) The Council may, for the better performance of its functions, establish such County Children Advisory Committees as it may deem necessary for the proper discharge of its functions at the County level in accordance with this Act. Section 54(2)(a) a children officer in charge of the area; Section 54(2)(b) the County Commissioner or a representative; Section 54(2)(c) the County Director for Education or a representative; Section 54(2)(d) the county executive member for the time being responsible for matters relating to children, or a representative; Section 54(2)(e) the County Executive Committee member for the time being responsible for matters relating to education, or a representative; Section 54(2)(f) the County Executive Committee member for the time being responsible for matters relating to health, or a representative; Section 54(2)(g) a representative of the Director of Public Prosecutions attached to the area within the local jurisdiction of the committee; Section 54(2)(h) a probation officer in charge of the area within the local limits of the committee’s jurisdiction; Section 54(2)(i) a police officer attached to the area within the local jurisdiction of the committee; Section 54(2)(j) a representative nominated by Public Benefits Organisations engaged in children’s welfare County activities within the local limits of the committee’s jurisdiction; Section 54(2)(k) a representative nominated by public benefits organisations knowledgeable in matters relating to the rights of persons with disabilities; Section 54(2)(l) a representative of faith-based organisations within the jurisdiction of the committee; Section 54(2)(m) the registrar in charge of the area or a representative; Section 54(2)(n) the Labour Officer in-charge of the area or a representative; and Section 54(2)(o) a representative of the Council who shall be the Secretary to the Committee. Section 54(3)(a) assist and collaborate with the Council in the performance of its functions within its local jurisdiction; Section 54(3)(b) provide a platform for collaboration between the national government and the county government on children matters within its jurisdiction; Section 54(3)(c) make recommendations to the Council on any matters relating to children within its jurisdiction; Section 54(3)(d) provide information that may be required by the Council on any matter concerning children within the local limits of its jurisdiction; and Section 54(3)(e) perform such other functions as the Council may delegate. - 55 Verify source ↗
ADMINISTRATION OF CHILDREN’S SERVICES - 55. Sub-County Children Advisory Committees
The Council must establish sub-county children advisory committees in every sub-county to advise County Children Advisory Committees and recommend child welfare programmes; those sub-county committees must submit particulars to County Children Advisory Committees, which must report to the Chief Executive Officer, who must recommend to the Council and notify relevant county committees about approvals or refusals.
Section 55. Sub-County Children Advisory Committees Section 55(1) The Council shall establish, in relation to every sub-county, sub-county children advisory committees, whose functions shall be to advice the County Children Advisory Committees on, and make recommendations for, the implementation of such child welfare programmes as may be necessary for the promotion and protection of the rights of the child in the respective sub-counties. Section 55(2) Without prejudice to the generality of subsection (1), the Council may establish advisory committees in other decentralized units of service delivery to aid and advise the Council in the discharge of its functions under this Act or any other written law. Section 55(3)(a) facilitate information sharing and networking among key stakeholders in each sub-county and other decentralized units; Section 55(3)(b) coordinate children matters and activities at the area of jurisdiction; Section 55(3)(c) inspect, monitor and evaluate children facilities to ensure compliance with standards set by the Council; Section 55(3)(d) make recommendations to the County Children Advisory Committee on any matters relating to children within the sub-county or area of jurisdiction; Section 55(3)(e) provide information that may be required by the County Children Advisory Committee on any matters relating to children within the area of jurisdiction; Section 55(3)(f) submit annual reports to the County Children Advisory Committee on matters relating to children within the area of jurisdiction; Section 55(3)(g) promote awareness on children matters within the area of jurisdiction; and Section 55(3)(h) mobilize resources to support the Council’s mandate at the sub-county level and area of jurisdiction. Section 55(4) Pursuant to subsection (1), the sub-county children advisory committees shall submit to the respective County Children Advisory Committees particulars of the recommended child welfare programmes in relation to the respective sub counties. Section 55(5) The County Children Advisory Committees shall consider the recommendations of the sub county children advisory committees and submit a report to the Chief Executive Officer. Section 55(6) Upon receipt of the any report submitted under this section, the Chief Executive Officer shall make recommendations to the Council, and the Council may approve or withhold its approval for the implementation of any of the proposed programs to which the report relates. Section 55(7) If the Council approves any of the recommended child welfare programmes, the Chief Executive Officer shall notify the relevant county welfare committee in writing of such approval Section 55(8) If the Council declines to approve the implementation of any proposed child welfare program recommended under this section, the Chief Executive Officer shall notify the relevant county children advisory committee, giving reasons for the decision of the Council.
Part IX
CUSTODY AND MAINTENANCE
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CUSTODY AND MAINTENANCE - 101. Custody, care and control
Persons entrusted with the care or having actual custody of a child (but not having legal custody) must safeguard the child's interests and welfare.
Section 101. Custody, care and control Section 101(1) Where a person who does not have the legal custody of a child is entrusted with the care and control of the child, the person is under a duty to safeguard the interests and welfare of the child. Section 101(2) Where a person, not having legal custody of a child, has actual custody of the child, the person shall be deemed to be charged with the care of the child, and shall take all reasonable steps to safeguard the interests and welfare of the child. Section 101(3) In this Act, unless the context otherwise requires, reference to the person under whom a child has his home refers to the person who has care and control of that child and does not include a hospital, hostel or boarding school, at which the child is temporarily accommodated. - 102 Verify source ↗
CUSTODY AND MAINTENANCE - 102. Custody order
A Court may make a custody order awarding legal custody of a child to applicants qualified under subsection (3); subsection (3) lists parents, guardians, long-term custodians (three years) with consent, and others who can show cause. The Court also has power, on the Secretary's application, to remove a child from an abusive situation and place the child in temporary alternative care.
Section 102. Custody order Section 102(1) A Court may, on the application of one or more persons qualified under subsection (3), make an order vesting the legal custody of a child in the applicant or applicants. Section 102(2) An order under subsection (1) may be referred to as a custody order, and the person to whom legal custody of the child is awarded is referred to as the custodian of the child. Section 102(3)(a) a parent; Section 102(3)(b) a guardian; Section 102(3)(c) any person who applies with the consent of a parent or guardian of a child and has had actual custody of the child for a period of three years preceding the making of the application, unless the Court is satisfied on evidence that a shorter period is sufficient to justify an order made in determination of the application; or Section 102(3)(d) any person who, while not falling within paragraphs (a), (b) or (c), can show cause, having regard to section 101 , why an order should be made awarding the person custody of the child. Section 102(4) Nothing in this section may be construed as limiting the power of the Court to make an order, on the application of the Secretary, directing the removal of a child from an abusive home or institution and placement on temporary alternative care on such terms as the Court may think fit. - 103 Verify source ↗
CUSTODY AND MAINTENANCE - 103. Principles to be applied in making custody order
Courts must apply listed principles when making custody orders; courts may grant rights and duties to a non-custodial person, including access; a parent found unfit is not entitled to custody on the death of the other parent without the Court's leave.
Section 103. Principles to be applied in making custody order Section 103(1)(a) the conduct and wishes of the parent or guardian of the child; Section 103(1)(b) the ascertainable wishes of the relatives of the child; Section 103(1)(c) the ascertainable wishes of the child taking into account the child’s evolving capacity; Section 103(1)(d) whether the child has suffered any harm or is likely to suffer any harm if the order is not made; Section 103(1)(e) the customs of the community to which the child belongs; Section 103(1)(f) the religious persuasion of the child; Section 103(1)(g) whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force; Section 103(1)(h) the circumstances of any sibling of the child concerned, and of any other children of the home, if any; Section 103(1)(i) any of the matters specified in section 95 (2) where the court considers such matters to be relevant in the making of an order under this section; and Section 103(1)(j) the best interest of the child. Section 103(2) Where a custody order is made giving custody of a child to one parent, or in the case of joint guardians, to one guardian, the Court may order that the person not awarded custody shall nevertheless have all or any rights and duties in relation to a child, other than the right to actual possession, jointly with the person who is given custody of the child. Section 103(3) The rights specified in subsection (2) include the right of access to the child on such terms as the Court may direct. Section 103(4) In any case where a decree for judicial separation or a decree for divorce is pronounced, and the Court pronouncing the divorce decree determines that the parent by reason of whose misconduct the decree is made to be unfit to have the legal custody of the child or children of the marriage, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled to legal custody of the child without leave of the Court. - 104 Verify source ↗
CUSTODY AND MAINTENANCE - 104. Restriction on removal of a child where applicant has provided home for three years
If a child has lived with a person for three years, no one may remove the child from that person's custody against the applicant’s will without the Court's leave; breaching this is an offence with possible imprisonment up to three months or a fine of not less than one hundred thousand shillings, or both.
Section 104. Restriction on removal of a child where applicant has provided home for three years Section 104(1) Where an application for a custody order in respect of a child made by the person with whom the child has, at the time the application is made, had his home for a period, whether continuous or not, of three years, no person shall be entitled, against the will of the applicant, to remove the child from the applicant’s custody without leave of the Court. Section 104(2) A person who contravenes subsection (1) commits an offence and shall be liable on conviction to imprisonment for a term not exceeding three months or to a fine of not less than one hundred thousand shillings, or to both. - 105 Verify source ↗
CUSTODY AND MAINTENANCE - 105. Return of child removed in breach ofsection 104
A court can order return of a child removed in breach of section 104, prohibit removal when there are reasonable grounds under section 107, issue search warrants to locate such children, and give directions on access when making custody orders.
Section 105. Return of child removed in breach ofsection 104 Section 105(1) A Court may, on the application of a person from whom a child has been removed in breach of section 104 , order the person who has so removed the child to return the child to the applicant, and where the child has been removed from the jurisdiction of the Court or the Republic of Kenya, make a wardship order or a production order on such conditions as the Court may think fit. Section 105(2) A Court may, on the application of a person who has reasonable grounds for believing that another person intends to remove a child from the applicant’s custody in breach of section 107 , by order prohibit the removal by the person of the child from the applicant. Section 105(3) Where a Court is satisfied by information on oath that there are reasonable grounds for believing that a child to whom an order under subsection (1) relates is in the premises specified in the information, the Court may issue a search warrant authorising a police officer to search the premises; and if the police officer, acting in pursuance of a warrant under this section, finds the child, he or she shall return the child to the person on whose application the order under subsection (1) was made. Section 105(4) Where a Court makes a custody order with respect to a child, the Court shall, in addition, give such directions as to any rights of access to the child on such terms as the Court may direct. - 106 Verify source ↗
CUSTODY AND MAINTENANCE - 106. Conflict of interest of joint custodians
If two people jointly hold parental rights or duties under a custody order and cannot agree, either person may apply to the Court, and the Court may make orders about exercising the right or performing the duty.
Section 106. Conflict of interest of joint custodians Section If two persons have parental rights or duty vested in them jointly under a custody order, but cannot agree on its exercise or performance, either person may apply to the Court, and the Court may make such orders regarding the exercise of the right or performance of the duty on such terms as the Court thinks fit. - 107 Verify source ↗
CUSTODY AND MAINTENANCE - 107. Revocation of custody order
A Court may revoke a custody order on application; before revoking it the Court must make an order as to who will have custody. Custodians and certain other persons may apply for revocation or variation of access or maintenance orders. Custody and related orders cease when the child turns eighteen, but the Court has power to extend them on application.
Section 107. Revocation of custody order Section 107(1) A Court may, on application in the prescribed form, revoke a custody order: Provided that, before doing so, the court shall make an order as to who is thereafter to have custody of the child, or give an appropriate order pursuant to section 135 . Section 107(2)(a) in refusing the previous application, the Court directed that this subsection shall not apply; or Section 107(2)(b) it appears to the Court that, by reason of a change in the circumstances, or for any other good reason, it is proper to proceed with the application. Section 107(3) The custodian of a child may apply to the Court for the revocation of any order made with regard to access to the child or with respect to the access and maintenance of the child. Section 107(4) Any other person on whose application an order in respect of access or maintenance of a child was made, or who was required under such an order to contribute towards the maintenance of the child, may apply to a Court for the revocation or variation of that order. Section 107(5) Any order in relation to access or maintenance in respect of a child who is subject of a custody order shall not cease to have effect on the revocation of a custody order unless the Court otherwise directs. Section 107(6) A custody order made in respect of a child, and any order in respect of access or maintenance of a child who is the subject of a custody order, shall cease to have effect when the child attains the age of eighteen years: Provided that the Court has power, on application made, to extend a custody, access or maintenance order beyond the child’s eighteenth birthday on such terms as the Court may deem fit. - 108 Verify source ↗
CUSTODY AND MAINTENANCE - 108. Interim custody orders
The Court may make interim custody orders, may review/suspend/vary them, but must not make an interim custody order under subsection (1) for more than twelve months.
Section 108. Interim custody orders Section 108(1) The Court shall have power to make interim custody orders and may from time to time review, suspend or vary such orders. Section 108(2) The Court shall not make an interim custody order under sub-section (1) for a period exceeding twelve months. - 109 Verify source ↗
CUSTODY AND MAINTENANCE - 109. Custody agreement not to be invalid in certain circumstances
Agreements between parents that transfer legal or actual custody between father and mother are not invalid solely for that reason, but the Court will not enforce such agreements if it believes enforcement is not in the child's best interest.
Section 109. Custody agreement not to be invalid in certain circumstances Section An agreement made between the parents of a child shall not be invalid by reason only that it provides that the father shall give legal or actual custody of the child to the mother or vice versa: Provided that the Court shall not enforce any such agreement if the Court is of the opinion that it is not in the best interest of the child to do so. - 110 Verify source ↗
CUSTODY AND MAINTENANCE - 110. Joint maintenance of children
Both parents must maintain the child.
Section 110. Joint maintenance of children Section it shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other; - 111 Verify source ↗
CUSTODY AND MAINTENANCE - 111. Power to make maintenance order
Parents, guardians, custodians or an authorised officer may apply to the Court for matters relating to a child's maintenance and the Court may itself make a maintenance order when making, varying or discharging residence, guardianship or custody orders, even if no application has been made.
Section 111. Power to make maintenance order Section 111(1) A parent, guardian or custodian of a child, or an authorised officer, may apply to the Court to determine any matter relating to the maintenance of the child and to make a maintenance order: Provided that on the making, varying, or discharging of a residence, guardianship or custody order, the Court may make a maintenance order for a child notwithstanding the fact that no application has been made to the Court in that regard. Section 111(2)(a) the person is or will be involved in the education and training which will extend beyond the person’s eighteenth birthday; Section 111(2)(b) the person has a disability and requires specialised care which will extend beyond the person’s eighteenth birthday; Section 111(2)(c) the person is suffering from an illness or ailment and will require medical care which will extend beyond the person’s eighteenth birthday; or Section 111(2)(d) other special circumstances exist that would warrant the making of the order. - 112 Verify source ↗
CUSTODY AND MAINTENANCE - 112. Maintenance during matrimonial proceedings.
The Court may make a maintenance order for a child whether or not matrimonial proceedings have been filed, during proceedings, or after a final decree is made.
Section 112. Maintenance during matrimonial proceedings. Section The Court may make a maintenance order, whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by a parent of a child, or during proceedings or after a final decree is made in such proceedings: Provided that, once the proceedings for the maintenance of a child have commenced under this or any other Act, no subsequent or other proceedings with respect to such maintenance may be commenced under any other Act without leave of the Court. - 113 Verify source ↗
CUSTODY AND MAINTENANCE - 113. Financial provision for child
Section 113. Financial provision for child Section periodic payments; or
Section 113. Financial provision for child Section periodic payments; or - 114 Verify source ↗
CUSTODY AND MAINTENANCE - 114. Financial provisions by step-parents and presumptive guardian
The Court may make a maintenance order for a child (including a non-adopted child accepted as part of the family) and may consider specified financial and personal factors when deciding.
Section 114. Financial provisions by step-parents and presumptive guardian Section 114(1) The Court may make a maintenance order in respect of a child, including a child of the other parent who has been accepted as a child of the family notwithstanding the absence of an adoption order. Section 114(2)(a) the income or earning capacity, property and other financial resources which the parties or any other person in whose favour the Court proposes to make an order, have or are likely to have in the immediate future; Section 114(2)(b) the financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future; Section 114(2)(c) the financial needs of the child and the child’s current circumstances; Section 114(2)(d) the income, if any, derived from the property of the child; Section 114(2)(e) any physical or mental disabilities, illness or medical condition of the child; Section 114(2)(f) the manner in which the child is being or was expected to be educated or trained; Section 114(2)(g) whether the respondent has assumed responsibility for the maintenance of the child and, if so, the extent to which, and the basis on which, he or she has assumed that responsibility, and the length of the period during which he has met that responsibility; Section 114(2)(h) whether the respondent assumed responsibility for the maintenance of the child knowing that the child was not his child; Section 114(2)(i) the liability of any other person to maintain the child; Section 114(2)(j) the liability of that person to maintain other children. - 115 Verify source ↗
CUSTODY AND MAINTENANCE - 115. Power to order maintenance monies to be paid to person other than the applicant
Section 115 concerns the power to order that maintenance monies be paid to a person other than the applicant and lists circumstances (including unfitness, absence, death/incapacity/imprisonment/bankruptcy, misappropriation; transfer of the child between institutions; or the court granting custody to another person) relevant to such orders.
Section 115. Power to order maintenance monies to be paid to person other than the applicant Section 115(1)(a) is not a fit person to receive any maintenance monies specified in the order in respect of a child; Section 115(1)(b) has left the jurisdiction of the Court for an indefinite period, or is dead, incapacitated, imprisoned or has been declared bankrupt; or Section 115(1)(c) has misappropriated, misapplied or mismanaged any maintenance monies paid to him for the benefit of the child, Section 115(2)(a) the child is transferred from one children institution to another; or Section 115(2)(b) the court grants custody to another person either alone or jointly with another or others. - 116 Verify source ↗
CUSTODY AND MAINTENANCE - 116. Duration of financial provisions
A maintenance order for periodic payments starts on the date of the application (or a later date the Court may direct) and stays in force until the child’s eighteenth birthday, subject to section 111; it can end on the death of the person liable or on a significant change of circumstances for a parent or guardian that is not detrimental to the child's best interests.
Section 116. Duration of financial provisions Section 116(1) A maintenance order requiring financial provision to be made through periodic payments shall commence on the date of the application, or on such later date as the Court may direct. Section 116(2) An order under subsection (1) shall remain in force until the child’s eighteenth birthday subject to the provisions of section 111 . Section 116(3)(a) the death of the person liable to make the periodic payment; Section 116(3)(b) significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child. - 117 Verify source ↗
CUSTODY AND MAINTENANCE - 117. Interim orders of maintenance
A Court may make an interim maintenance order and may dispense with any notice if satisfied it is in the best interests of the child, on an ex-parte application.
Section 117. Interim orders of maintenance Section 117(1) A Court may make an interim maintenance order, on the ex–parte application of any person and in so doing, may dispense with any notice required to be given to any person, if the Court is satisfied that it is in the best interests of the child to do so. Section 117(2) The interim order issued under subsection (1) shall be in force for such period as the Court may specify pending hearing inter-parties of an application in that regard. - 118 Verify source ↗
CUSTODY AND MAINTENANCE - 118. Other maintenance provisions
The Court may make orders and give directions about any aspect of a child's maintenance, including education, medical care, housing, clothing, and financial provision for the child.
Section 118. Other maintenance provisions Section A Court may make an order and give directions regarding any aspect of the maintenance of a child including matters relating to the provision of education, medical care, housing and clothing for the child; and in that behalf, make an order for financial provisions for the child. - 119 Verify source ↗
CUSTODY AND MAINTENANCE - 119. Power to impose conditions or to vary order
The Court has the power to impose conditions or to vary an order.
Section 119. Power to impose conditions or to vary order Section impose such conditions as the Court deems fit; - 120 Verify source ↗
CUSTODY AND MAINTENANCE - 120. Power to vary maintenance agreements
The Court may, on application, vary the terms of an agreement about a child's maintenance if it is satisfied the variation is reasonable and in the child's best interest.
Section 120. Power to vary maintenance agreements Section Where the parents, guardians or custodians of a child enter into an agreement, whether orally or in writing, in respect of the maintenance of the child, the Court may, upon application, vary the terms of the agreement if the Court is satisfied that such variation is reasonable and in the best interest of the child. - 121 Verify source ↗
CUSTODY AND MAINTENANCE - 121. Enforcement of orders for maintenance or contribution
The Court has various powers to enforce maintenance or contribution orders, including ordering payment of arrears, detention or inspection of property, setting aside dispositions, injunctions, directing enquiries into means, postponing warrants, and varying or discharging orders; the Court must give prior notice and an opportunity to make representations before making an order.
Section 121. Enforcement of orders for maintenance or contribution Section 121(1)(a) the person against whom the maintenance order was made has failed to comply with any provision contained in the order; or Section 121(1)(b) the person against whom the order was made has defaulted in any payment specified under the order. Section 121(2) Unless otherwise directed by the Court, the respondent shall be served with the notice of proceedings under this section and may be summoned or arrested on a warrant issued by the Court. Section 121(3)(a) enquiries be made as to the respondent’s means by such person as the Court may direct; Section 121(3)(b) the respondent’s income, assets and liabilities be searched to establish such information as the Court may require to make an order under this section; or Section 121(3)(c) a statement of means from the respondent’s employer, or auditors or from such other person as the Court may direct, be availed to the Court. Section 121(4)(a) order that any arrears in respect of any maintenance monies or contribution monies as the case may be, be paid forthwith in lumpsum or in instalments within such period as the Court may specify; Section 121(4)(b) order the remission of the arrears: Provided that the Court shall not make an order under this section without prior notice to the child, the person or institution, as the case may be, in favour of whom the maintenance or contribution order has been made or without allowing them a reasonable opportunity to make representations in that regard; Section 121(4)(c) failure to make payment was due to the willful refusal or neglect of the respondent; and Section 121(4)(c)(i) failure to make payment was due to the willful refusal or neglect of the respondent; and Section 121(4)(c)(ii) the respondent is gainfully employed, or is engaged in some profitable business enterprise or undertaking or owns property out of which he derives an income capable of satisfying the order of the Court: Section 121(4)(d) order the detention, attachment, preservation or inspection of any property of the respondent and, for all or any of the purposes aforesaid, authorize such person, as the Court may deem fit, to enter upon any land or building in which the respondent has an interest whether in the possession or control of the defaulter or not; Section 121(4)(e) subject to the rights of a bona fide purchaser for value without notice, set aside any disposition of any property belonging to the respondent from which any income is receivable, and the Court may, on application made in that regard, make orders for the re-sale of the property to any person and direct that the proceeds of the sale be applied in the settlement of any arrears of maintenance monies and to the payment of future maintenance monies payable under the order; or Section 121(4)(f) restrain by way of an injunction the disposition, wastage or damage of any property belonging to the respondent. Section 121(5)(a) the respondent has willfully and deliberately concealed or misled the Court or any person appointed or directed to carry out enquiries under subsection (4) of this section as to the true nature and extent of his earnings or income; or Section 121(5)(b) is about to dispose of most or the whole of his property; Section 121(5)(b)(i) is about to dispose of most or the whole of his property; Section 121(5)(b)(ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court; or Section 121(5)(b)(iii) is about to abscond or leave the local limits of the Court’s jurisdiction. Section 121(6)(a) the respondent has persistently and willfully refused or neglected to make payment of all or any part of the monies ordered to be paid under a maintenance or contribution order without reasonable cause; Section 121(6)(b) the respondent is present at the hearing; Section 121(6)(c) an order for attachment of the respondent’s income would not be appropriate; or Section 121(6)(d) it has enquired into the cause of the default and is satisfied that such default was due to the respondent’s willful refusal or neglect. Section 121(7) The issue of a warrant under this section may be postponed on such terms as the Court may think fit but, if postponed, it may not be issued without further notice being given to the defaulter. Section 121(8) The Court shall have power to vary, modify or discharge any order made under this section.
Part V
FINANCIAL PROVISIONS OF THE COUNCIL
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FINANCIAL PROVISIONS OF THE COUNCIL - 56. Funds of the Council
The Council's funds include monies appropriated by Parliament, grants/gifts/donations/endowments, and funds that vest in or accrue to the Council; the Council's receipts, earnings or accruals and year-end balances shall not be paid into the Consolidated Fund but retained for Council purposes under this Act.
Section 56. Funds of the Council Section 56(1)(a) monies appropriated by Parliament for purposes of the Council; Section 56(1)(b) grants, gifts, donations or other endowments given to the Council; and Section 56(1)(c) such funds as may vest in or accrue to the Council in the performance of its functions under this Act or any other written law. Section 56(2) The receipts, earnings or accruals of the Council and the balances at the close of each financial year shall not be paid into the Consolidated Fund, but shall be retained for purposes of the Council under this Act. - 57 Verify source ↗
FINANCIAL PROVISIONS OF THE COUNCIL - 57. Annual estimates
The Council must prepare and approve annual revenue and expenditure estimates before each financial year, submit them to the Cabinet Secretary for approval, and (after approval) must not increase estimates without the Cabinet Secretary's consent.
Section 57. Annual estimates Section 57(1) Before the commencement of each financial year, the Council shall cause to be prepared estimates of the revenue and expenditure of the Council for that year. Section 57(2) The annual estimates of the Council shall make provision for all the estimated expenditure of the Council for the financial year concerned. Section 57(3) The annual estimates shall be approved by the Council before commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for approval and after approval, the Council shall not increase annual estimates without the consent of the Cabinet Secretary. Section 57(4) No expenditure shall be incurred for the purposes of the Council except in accordance with the annual estimates approved under subsection (3), or in pursuance of an authorization by the Cabinet Secretary. - 58 Verify source ↗
FINANCIAL PROVISIONS OF THE COUNCIL - 58. Financial year of the Council
The financial year of the Council shall be the period of twelve months ending on the thirtieth of June in each year.
Section 58. Financial year of the Council Section The financial year of the Council shall be the period of twelve months ending on the thirtieth of June in each year. - 59 Verify source ↗
FINANCIAL PROVISIONS OF THE COUNCIL - 59. Accounts and Audit
The Council must keep proper books and records of account of its income, expenditure, assets and liabilities.
Section 59. Accounts and Audit Section 59(1) The Council shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Council. Section 59(2)(a) statement of the income and expenditure of the Council during that year; and Section 59(2)(b) statement of the assets and liabilities of the Council on the last day of that financial year. Section 59(3) The annual accounts of the Council shall be prepared, audited and reported upon in accordance with the provisions of Articles 226 and 229 of the Constitution and the Public Audit Act (Cap. 412B). - 60 Verify source ↗
FINANCIAL PROVISIONS OF THE COUNCIL - 60. Annual Reports of the Council
Section 60 lists items for the Council's annual reports (financial statements; description of activities; recommendations on actions; recommendations on policy, legislative and administrative measures; any other relevant information). It also permits the Council to prepare, publicise and submit periodic status reports to the Cabinet Secretary.
Section 60. Annual Reports of the Council Section 60(1)(a) the financial statements of the Council; Section 60(1)(b) a description of the activities of the Council; Section 60(1)(c) recommendations on specific actions to be taken in, furtherance of the mandate of the Council; Section 60(1)(d) recommendations on policy, legislative and administrative measures required to enhance the effective discharge of the functions of the council; and Section 60(1)(e) any other relevant information relating to the functions and activities of the Council. Section 60(2) Without prejudice to subsection (1), the Council may prepare, publicise and submit to the Cabinet Secretary other periodic status reports on the institutions programmes and actions designed for the promotion and protection of the rights and welfare of the child.
Part VI
ROLE OF COUNTY GOVERNMENTS
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ROLE OF COUNTY GOVERNMENTS - 61. The Role of County governments
Section 61. The Role of County governments Section 61(1)(a) provide or facilitate the provision of pre- primary education; and Section 61(1)(b) provide or facilitate the provision of childcare facilities. Section 61(2) Every county
Section 61. The Role of County governments Section 61(1)(a) provide or facilitate the provision of pre- primary education; and Section 61(1)(b) provide or facilitate the provision of childcare facilities. Section 61(2) Every county government shall, in consultation with the Cabinet Secretary, develop policies and guidelines for the better carrying out of the functions specified in subsection (1). - 62 Verify source ↗
ROLE OF COUNTY GOVERNMENTS - 62. County government welfare schemes
A county government may, alone or jointly with other county governments and after consulting the Council, establish welfare schemes to provide or help provide childcare facilities and programmes for children, including children with disabilities.
Section 62. County government welfare schemes Section A county government may, either by itself or jointly with other county governments, and in consultation with the Council, establish welfare schemes to provide or facilitate the provision of childcare facilities and programmes for children including children with disabilities.
Part VII
CHILDREN’S INSTITUTIONS
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CHILDREN’S INSTITUTIONS - 63. Establishment of children rescue centres
The Cabinet Secretary must (in consultation with the Council and by notice in the Gazette) establish children rescue centres in every county for temporary care, may designate existing children’s institutions as rescue centres and may collaborate with county governments; regulations must be made for approval standards; certain institutions are excluded.
Section 63. Establishment of children rescue centres Section 63(1) The Cabinet Secretary shall, in consultation with the Council and by notice in the Gazette , establish children rescue centres in every county for the temporary care of children in need of care and protection pending placement in alternative care or other interventions under the Act. Section 63(2) A child shall be accommodated in a children rescue centre for a period not exceeding six months pending any of the interventions specified in subsection (1). Section 63(3) Without prejudice to the generality of subsection (1), the Cabinet Secretary may, in consultation with the Council, by notice in the Gazette designate such children’s institutions to operate as children rescue centres as the Cabinet Secretary may consider appropriate. Section 63(4) The children’s institutions referred to in subsection (3) shall not include police stations, remand homes or rehabilitation schools. Section 63(5) The Cabinet Secretary shall make regulations to provide for the procedure and minimum standards to be adhered to before the approval of an application for designation as a children rescue centre under this section. Section 63(6) The Cabinet Secretary may collaborate with a county government for purposes of establishing a children rescue centre under subsection (1). Section 63(7) The placement of a child in a children rescue centre shall only be done in cases where no alternative care placement is for the time being available to the child. Section 63(8)(a) in an emergency situation and the child is referred to the centre by way of an interim care order or a care order; or Section 63(8)(b) if the child is taken to the institution by an authorised officer or any person who has reasonable cause to believe that the child is in need of care and protection. - 64 Verify source ↗
CHILDREN’S INSTITUTIONS - 64. Establishment of child protection units
Inspector-General must establish child protection units in every police station on a temporary basis to provide a safe, non‑threatening environment for children in conflict with the law; the Secretary may inspect those units for compliance with standards.
Section 64. Establishment of child protection units Section 64(1) The Inspector-General shall establish child protection units in every police station for the purposes of providing, on a temporary basis, a safe and non-threatening environment for children in conflict with the law. Section 64(2) The Secretary may inspect children protection units established under subsection (1) to ascertain their compliance with the general standards prescribed for children’s institutions under this Act or any other written law. Section 64(3) The child protection units established under subsection (1) shall be desegregated by gender with clear sections for boys, girls and intersex children. - 65 Verify source ↗
CHILDREN’S INSTITUTIONS - 65. Charitable Children’s Institutions
No person must register or operate a Charitable Children’s Institution except as provided in law; existing Charitable Children’s Institutions must ensure every employee holds a valid certificate showing no pending criminal investigations.
Section 65. Charitable Children’s Institutions Section 65(1) No person shall register or operate a Charitable Children’s Institution except as provided in law. Section 65(2)(a) keep and maintain a register of all Charitable Children’s Institutions registered or approved by the Council prior to the commencement of this Act; Section 65(2)(b) prescribe the minimum standards and conditions for operation of existing Charitable Children’s Institutions Section 65(3) An existing Charitable Children’s Institution shall ensure that every employee of the institution holds a valid certificate ascertaining that they have no pending criminal investigations; Section 65(4)(a) shall inspect and assess whether the facilities and operations of existing Charitable Children’s Institution conform to the minimum standards and conditions set out in this Act and the regulations; Section 65(4)(b) may deregister a non-compliant existing Charitable Children’s Institution. Section 65(5)(a) operates an existing Charitable Children’s Institution contrary to the provisions of this Act; Section 65(5)(b) admits a child to the care of an existing Charitable Children’s Institution which is not approved by the Council; or Section 65(5)(c) implements or attempts to implement a children’s welfare programme, or to operate a Charitable Children’s Institution in the name of a Public Benefits Organisation, religious organisation or other association, whether incorporated or unincorporated, or otherwise in contravention of this subsection, - 66 Verify source ↗
CHILDREN’S INSTITUTIONS - 66. Manager and Staff of Charitable Children’s Institution
Section 66 sets out the manager and staff requirements for a Charitable Children’s Institution: a manager who is a duly qualified person and a sufficient number of staff, and specifies manager qualifications including a Bachelor’s degree or Diploma in Social Sciences, a valid certificate showing no pending criminal investigations or convictions under the Third Schedule, and at least three years’ working experience in social services.
Section 66. Manager and Staff of Charitable Children’s Institution Section 66(1)(a) a duly qualified person as the manager of the institution; and Section 66(1)(b) a sufficient number of staff or other appropriate personnel to assist in the administration of the institution. Section 66(2)(a) a Bachelor’s degree or Diploma in Social Sciences from a university or other training institution recognized in Kenya; Section 66(2)(b) a valid certificate issued by the relevant body certifying that there are no pending criminal investigations against the person or convictions for the offences under the Third Schedule; and Section 66(2)(c) at least three years working experience in an institution involved in the field of social services. - 67 Verify source ↗
CHILDREN’S INSTITUTIONS - 67. Overriding objectives of charitable children’s institutions
The main objective of charitable children’s institutions is to provide family-based care for all children in accordance with the national policy for the promotion and protection of the rights of the child; placement in institutions is limited by specified conditions and maximum durations.
Section 67. Overriding objectives of charitable children’s institutions Section 67(1) The main objective for the establishment of charitable children’s institution shall be to provide family- based care for all children in accordance with the national policy for the promotion and protection of the rights of the child. Section 67(2)(a) the child has no immediate access to parental care by the child’s parent, guardian or relative, if any; Section 67(2)(b) no alternative family based placement, is for the time being available to the child; or Section 67(2)(c) the usual place of abode or home is not conducive to the well-being of the child. Section 67(3) Unless there are compelling circumstances, a child shall not be placed in a charitable children’s institution for a period exceeding three years. Section 67(4) Without prejudice to the generality of subsection (3), a child below the age of three years shall not be placed in alternative care in an institution, except in compelling circumstances and, in any event, for a period not exceeding three months. - 68 Verify source ↗
CHILDREN’S INSTITUTIONS - 68. Certain institutions not deemed to be Charitable Children’s Institutions
Section 68 lists specific institutions that are not considered Charitable Children’s Institutions and requires that a charitable children’s institution, with the written approval of the Council, provide medical care, education or training for children accommodated there.
Section 68. Certain institutions not deemed to be Charitable Children’s Institutions Section 68(1)(a) a rehabilitation school established by the Cabinet Secretary under section 78 ; Section 68(1)(b) a children’s rescue centre established by the Cabinet Secretary under section 63 ; Section 68(1)(c) a school within the meaning of the Basic Education Act (Cap. 211); Section 68(1)(d) a borstal institution; Section 68(1)(e) any healthcare institution; or Section 68(1)(f) a children’s day care centre, nursery or other similar establishment. Section 68(2) Without prejudice to the generality of subsection (1), a charitable children’s institution shall, with the written approval of the Council, provide medical care, education or training for the children accommodated in the institution. - 69 Verify source ↗
CHILDREN’S INSTITUTIONS - 69. Change of user of institutions
Registered charitable childrens institutions may apply to the Council to change the institution's user, submitting the application at least six months before the proposed change.
Section 69. Change of user of institutions Section 69(1) Any registered Charitable Children’s Institution may change user of the institution by making an application to the Council for approval of the proposed change at least six months prior to the date the proposed change is to take effect. Section 69(2)(a) reintegrate the children placed in the institution with alternative families or guardians; or Section 69(2)(b) transfer the children to another institution; and Section 69(2)(c) investigate and ascertain the propriety of the proposed change of user and whether the application is made in good faith. Section 69(3) The Council shall not grant the application for change of user of a charitable children’s institution before taking the appropriate steps under subsection (2). Section 69(4) In taking the action specified in subsections (2) and (3), the Council shall be guided by the principle of the best interests of the child. - 70 Verify source ↗
CHILDREN’S INSTITUTIONS - 70. Criteria for approval of programmes
Charitable Children's Institutions cannot run child welfare programmes without the Council's prior written approval; the Council must make regulations setting criteria for approval and must keep a register of approved programmes.
Section 70. Criteria for approval of programmes Section 70(1) A Charitable Children’s Institution shall not administer any child welfare programme under this Act without the prior written approval of the Council. Section 70(2) The Council shall make regulations setting out the criteria for approval of child welfare programmes administered by charitable children’s institutions. Section 70(3) The Council shall keep and maintain a register of approved child welfare programs containing such information as the council may determine. - 71 Verify source ↗
CHILDREN’S INSTITUTIONS - 71. Placement of children in a charitable children’s institution
Section 71 sets rules for placement of children in Charitable Childrens Institutions: institutions must notify the Secretary within 24 hours of admission and institute care proceedings within seven days; they must not admit a child without a Court committal order specifying a maximum accommodation period; a person must not remove or transfer a child without leave of the Court; the Court must consider any childrens officer report when deciding committal orders.
Section 71. Placement of children in a charitable children’s institution Section 71(1)(a) in an emergency situation, the child is referred to the institution by way of an interim care order or a care order; or Section 71(1)(b) the child is taken to the institution by an authorised officer or any person who has reasonable cause to believe that the child is in need of care and protection. Section 71(2)(a) within twenty-four hours, inform the Secretary that it has admitted a child; and Section 71(2)(b) institute care proceedings under section 153 of this Act within seven days of the admission. Section 71(3)(a) the parent or guardian of the child applies to the Secretary for the release to them of the child; Section 71(3)(b) the child is held in accordance with section 145 ; or Section 71(3)(c) it is not in the best interest of the child to be placed with the Charitable Children’s Institution. Section 71(4) A Charitable Children’s Institution shall not admit a child into its care without a Court committal order specifying, among other things, the maximum period for which the child shall be accommodated in the institution. Section 71(5) In determining whether or not to issue a committal order under subsection (4), the Court shall admit and consider any report made by a children’s officer in respect of the child. Section 71(6) A person shall not remove or transfer a child from a Charitable Children’s Institution to another institution without leave of the Court. - 72 Verify source ↗
CHILDREN’S INSTITUTIONS - 72. Secretary to monitor the well- being of children
The Secretary must arrange periodic visits by authorized officers to charitable children’s institutions to interview and check the wellbeing of every admitted child; authorised officers must in particular check steps to place children into family-based alternative care within the three-year period in section 67(3).
Section 72. Secretary to monitor the well- being of children Section 72(1)(a) the child is discharged therefrom; or Section 72(1)(b) the expiry of a care order made in respect of the child. Section 72(2) The Secretary shall facilitate periodic visits to Charitable Children’s Institutions by officers duly authorized by the Secretary for the purpose of interviewing and ascertaining the wellbeing of every child admitted into such institutions. Section 72(3) Without prejudice to the generality of subsection (2), the authorised officers shall, in particular, ascertain the steps taken by the Charitable Children’s Institution to place the children accommodated therein in family-based alternative care within the period of three years prescribed in section 67 (3). - 73 Verify source ↗
CHILDREN’S INSTITUTIONS - 73. Inspection of charitable children’s institutions
The Secretary must authorise officers to inspect charitable children’s institutions, authorised officers may conduct interviews, require records, inspect facilities and report; the Secretary may require remedial management actions and appoint a manager for up to two months; obstruction or refusal to cooperate is an offence punishable by imprisonment up to three years or a fine up to one million shillings.
Section 73. Inspection of charitable children’s institutions Section 73(1) The Secretary shall authorise an authorised officer to inspect a charitable children’s institution or any other premises which he or she has cause to believe are being used to accommodate children who are in need of care and protection. Section 73(2)(a) interview any child in the institution or premises, and, in so doing, ensure confidentiality; Section 73(2)(b) require the production of an annual report and any other records required to be kept in accordance with the regulations made under section 89 ; Section 73(2)(c) inspect the conditions and facilities provided by the institution or managers of the premises; and Section 73(2)(d) prepare and submit a report outlining his or her findings and recommendations. Section 73(3) The obstruction or refusal by any person to allow any authorised officer referred to in subsection (2) to enter a charitable children’s institution or the premises referred to in subsection (1) for the purpose of inspecting such institution or premises, or interviewing any person in respect of such institution or premises, shall be sufficient ground to suspect that a child or children accommodated in the institution or premises is or are being neglected or abused, and that such children are in need of alternative care and protection. Section 73(4) Upon receipt of an inspection report, the Secretary may, in addition to taking such other remedial measures as may be prescribed by the Cabinet Secretary, require a charitable children’s institution to appoint a new management and institute appropriate remedial measures: Provided that the Secretary may, in consultation with the relevant County Children Advisory Committee, appoint a manager to manage the institution for a period not exceeding two months in order to institute appropriate remedial measures. Section 73(5) The functions and powers of the authorised officer appointed under this section shall be supplemental to, and not in derogation from the functions and powers conferred on an inspection committee appointed under section 88 . Section 73(6) Any person who, without lawful justification, refuses to allow an authorised officer referred to in subsection (2) to enter a charitable children’s institution or such premises as are mentioned in subsection (1), or who interferes in any way with the work of such officer, or fails to produce any report or records, or conceals any facility within such institution or premises, commits an offence and is liable, on conviction, to imprisonment for a term not exceeding three years or to a fine not exceeding one million shillings, or to both. - 74 Verify source ↗
CHILDREN’S INSTITUTIONS - 74. Duty to notify the Council
The Chief Executive Officer must prepare and submit to the Council a report on the proposed child welfare programme; the Council may approve or withhold approval, and anyone who implements a programme or part of it without Council approval (where approval is withheld) commits an offence punishable by up to 12 months' imprisonment or a fine up to 200,000 shillings, and continuing implementation after conviction attracts a daily fine up to 10,000 shillings.
Section 74. Duty to notify the Council Section 74(1)(a) the mode of operation of the proposed programme; and Section 74(1)(b) the specific objects of the programme. Section 74(2) The Chief Executive Officer shall prepare and submit to the Council a report containing the information relating to the proposed child welfare programme referred to in subsection (1), and the Council may approve or withhold its approval of such programme or part of it as the Council may determine, taking into account the best interests of children. Section 74(3) Where the Council withholds approval of a proposed child welfare programme or any part of it, any person who implements the whole or any unauthorized part of the proposed programme commits an offence and shall be liable, on conviction, to imprisonment for a term not exceeding twelve months or to a fine not exceeding two hundred thousand shillings, or to both. Section 74(4) If after conviction under subsection (3), the person continues to implement the proposed program without the approval of the Council, the person shall, in addition to the penalty prescribed in subsection (3), be liable, on conviction, to a fine not exceeding ten thousand shillings for each day during which the offending implementation continues. - 75 Verify source ↗
CHILDREN’S INSTITUTIONS - 75. Review of child welfare programmes
The County Children Advisory Committee must review each approved Child Welfare Programme twelve months after approval and annually thereafter, and advise the Council whether it meets Council-prescribed standards; the Council may direct remedial steps, deregistration and termination (including immediate termination and transfer of children), and continuation after deregistration is an offence punishable by up to 12 months imprisonment or a fine up to 200,000 shillings.
Section 75. Review of child welfare programmes Section 75(1) The County Children Advisory Committee shall, at the end of twelve months from the date of approval of a Child Welfare Programme, and thereafter annually, review the programme and advise the Council on whether the programme is operating according to the standards prescribed by the Council. Section 75(2)(a) direct that the relevant institution by which the program is implemented takes such steps as the Chief Executive Officer may specify in writing to facilitate compliance with the standards prescribed by the Council under this Act; or Section 75(2)(b) recommend that the Child Welfare Program in question be deregistered and terminated on such conditions as the Council may determine. Section 75(3)(a) the programme be terminated with immediate effect; and Section 75(3)(b) all children admitted to the relevant institution be transferred to, and placed under alternative care of, any fit person or institution. Section 75(4) If the Council directs that a child welfare program be deregistered, the certificate of approval issued under this Act in respect of the programme under review shall stand revoked. Section 75(5) Any person who continues to implement a deregistered child welfare program in respect of which the Council has directed to be terminated under this section commits an offence and shall, upon conviction, be liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding two hundred thousand shillings, or to both. - 76 Verify source ↗
CHILDREN’S INSTITUTIONS - 76. Deregistration of Child welfare programme
Section 76 sets grounds for deregistration of a child welfare programme, requires the Council to give notice and an opportunity to be heard (30 days), allows appeals to the Cabinet Secretary and High Court, and requires the Secretary to take remedial measures (including reintegration, transfer, removal, closure, prosecution or other action) if deregistration occurs; the Cabinet Secretary must make regulations for reintegration and transfer.
Section 76. Deregistration of Child welfare programme Section 76(1)(a) the programme is unfit for the care, protection and control of children; Section 76(1)(b) the children in respect of whom the program is administered are likely to suffer prejudice, or that the program is likely to occasion harm to such children; or Section 76(1)(c) the institution by which the program is administered has contravened any of the regulations made under this Act or any other written law. Section 76(2) The Council shall not deregister any child welfare program unless and until it accords the institution by which the program is administered fair opportunity to be heard in the matter in accordance with the principals of fair administrative action prescribed in Article 47 of the Constitution: Provided that the Council shall give written notice of the proposed deregistration and invite the programme to make its response within thirty days from the date of such notice. Section 76(3) Any person aggrieved by the decision of the Council made under this section may appeal to the Cabinet Secretary with a further appeal to the High Court. Section 76(4) If a child welfare program is deregistered, the Secretary shall, subject to any directions of the Cabinet Secretary, take such remedial measures as may be necessary to protect the children accommodated in the programme. Section 76(5)(a) reintegrate the children with their respective families or guardians; Section 76(5)(b) transfer the children to another registered institution; or Section 76(5)(c) remove any child or children from the institution; Section 76(5)(d) ensure the immediate closure of the institution; Section 76(5)(e) take such necessary steps, including prosecution, to secure appropriate penal sanctions against the manager in accordance with section 75 (5); or Section 76(5)(f) take such other action as may be necessary for the protection of the children. Section 76(6) Nothing in this section shall be construed as limiting an institution’s right to apply for change of user in accordance with section 69 . Section 76(7) The Cabinet Secretary shall make regulations to provide for the procedure for reintegration and transfer of Children under this Part. - 77 Verify source ↗
CHILDREN’S INSTITUTIONS - 77. Establishment of children’s remand homes
The Cabinet Secretary may establish children’s remand homes by Gazette notice and must facilitate suitable facilities for children with special needs; remand homes must have separate sections by sex, age, needs and risks; managers of public institutions (other than prisons) may agree to the use of their institutions as remand homes.
Section 77. Establishment of children’s remand homes Section 77(1) The Cabinet Secretary may, by notice in the Gazette , establish such children’s remand homes as the Cabinet Secretary considers necessary for the accommodation, care and protection of children in conflict with the law, and the Cabinet Secretary shall facilitate the provision in such homes suitable facilities for children with special needs. Section 77(2) The purpose of remand homes is to hold children in conflict with the law as a matter of last resort for their care and protection during trial before a verdict or placement. Section 77(3) A remand home shall have separate sections for children of different sexes, age categories, needs and risks. Section 77(4) The manager of any public institution, other than a prison, may enter into an agreement for the use of that institution or any part thereof as a children’s remand home on such terms as may be agreed between the manager and the Secretary. - 78 Verify source ↗
CHILDREN’S INSTITUTIONS - 78. Establishment of rehabilitation schools
The Cabinet Secretary may establish and approve rehabilitation schools, declare institutions as rehabilitation schools by Gazette notice, issue and withdraw certificates of approval, and the manager may apply for approval, surrender approval with six months' notice, and affected persons may appeal deregistration within thirty days.
Section 78. Establishment of rehabilitation schools Section 78(1) The Cabinet Secretary may, by notice in the Gazette , establish such number of rehabilitation schools as the Cabinet Secretary may consider necessary to provide rehabilitation, accommodation, education, training and facilities for the care and protection of children. Section 78(2)(a) the reception, education and vocational training of children; and Section 78(2)(b) the rehabilitation, care and protection of children. Section 78(3) Without prejudice to the generality of subsections (1) and (2), every rehabilitation school shall be suitably designed and equipped to implement such educational and vocational training programmes as may be approved by the Cabinet Secretary for the time being responsible for matters relating to basic education and vocational training. Section 78(4) The manager of any institution which is suitable for the reception, maintenance, training and rehabilitation of children ordered to be sent to a rehabilitation school under this Act may apply to the Cabinet Secretary to approve the institution for that purpose, and the Cabinet Secretary may, by notice in the Gazette , declare the institution to be a rehabilitation school and issue a certificate of approval to the manager. Section 78(5)(a) take such disciplinary action against the manager as the Cabinet Secretary may determine; or Section 78(5)(b) direct the manager by notice in writing to show cause why the certificate of approval issued in accordance with subsection (3) should not be withdrawn. Section 78(6)(a) the notice shall take immediate effect, and the certificate of approval issued under this section shall stand withdrawn; Section 78(6)(b) the Secretary may, by notice in writing to the manager, prohibit further admission of children to the school for such period as may be specified in the notice. Section 78(7)(a) the Secretary may give to the manager not less than six months’ notice in writing of his or her intention to withdraw the certificate of approval; and Section 78(7)(b) on the expiration of the notice, the certificate of approval shall stand withdrawn, and the school shall cease to be a rehabilitation school within the meaning of this Act. Section 78(8) Any person aggrieved by the decision to deregister a rehabilitation school under subsection (6) and (7) may appeal to the High Court within thirty days Section 78(9) The manager of a rehabilitation school may, after giving not less than six months’ notice in writing to the Secretary of his intention so to do, surrender the certificate of approval of the school, and, on the expiration of the notice, unless the notice is previously withdrawn, the certificate of approval shall be deemed to have been surrendered and the rehabilitation school shall cease to be approved. Section 78(10) A child shall not be received into a rehabilitation school under this Act after notice has been given of intention to withdraw or surrender the certificate of approval: Provided that the obligations of the manager with respect to children under his care at the date of the notice shall continue until the withdrawal or surrender of the certificate of approval takes effect. Section 78(11) The Cabinet Secretary may, on the advice of the Secretary, by notice in the Gazette , publicize the withdrawal or surrender of any certificate of approval issued under this section. - 79 Verify source ↗
CHILDREN’S INSTITUTIONS - 79. Rehabilitation schools to establish separate sections
Rehabilitation schools must have separate sections for children by sex, by age category, by conflict-with-law status, and by risk category; they must provide a counsellor or psychologist and take account of specific needs and risks for different categories of children in conflict with the law.
Section 79. Rehabilitation schools to establish separate sections Section 79(1) There shall be separate rehabilitation school classified for children in conflict with the law in accordance with the needs and risks of different sexes and age categories. Section 79(2)(a) separate sections for children of different sex; Section 79(2)(b) separate sections for children of different age categories; Section 79(2)(c) separate sections for children in conflict with the law; Section 79(2)(d) separate sections for various risk categories; and Section 79(2)(e) a counsellor or psychologist; Section 79(3) Without prejudice to the generality of subsection (2)(c), regard shall be had to the specific needs and risks involved in relation to the different categories of children in conflict with the law. - 80 Verify source ↗
CHILDREN’S INSTITUTIONS - 80. Managers to admit children into rehabilitation school
Managers must admit children into a rehabilitation school.
Section 80. Managers to admit children into rehabilitation school Section the school is an institution for persons of a different sex and age from that of the child whom it is proposed to place or transfer; - 81 Verify source ↗
CHILDREN’S INSTITUTIONS - 81. Leave of absence from school
The manager of a rehabilitation school may, with the authority of the Secretary, grant leave of absence to any child accommodated in that rehabilitation school for such period and on such conditions as the manager considers fit, and may at any time terminate such leave and direct the child to return to the school.
Section 81. Leave of absence from school Section The manager of a rehabilitation school may, with the authority of the Secretary, grant leave of absence to any child accommodated in that rehabilitation school for such period and on such conditions as the manager may consider fit, and may at any time terminate such leave and direct the child to return to the school. - 82 Verify source ↗
CHILDREN’S INSTITUTIONS - 82. Revocation of children’s committal order
The Secretary may apply to the Children’s Court to revoke a child’s committal order; the Court may revoke such orders and the manager of the rehabilitation school must produce the child before the Court.
Section 82. Revocation of children’s committal order Section 82(1) If at any time during the period of a child’s placement at a rehabilitation school the Secretary is satisfied that such child should not remain in the school under a committal order for the time being in force, the Secretary may apply to the Children’s Court for revocation of the Committal Order. Section 82(2) Without prejudice to the generality of subsection (1), the Court may at any time or on the application of any person, revoke an order committing a child to a rehabilitation school, having regard to the matters contained in the relevant records of the Court which made the order together with all relevant records of any court which may have previously considered any application made under this section. Section 82(3) Notwithstanding anything in this Act, an order of the Court committing a child to a rehabilitation school shall not remain in force for a period exceeding three years and in any case not beyond the date on which the child attains the age of eighteen years. Section 82(4) Unless the Court otherwise orders on application for an order under subsections (2) or (3), the manager of the rehabilitation school at which the child is placed shall facilitate the production of the child before the Court. - 83 Verify source ↗
CHILDREN’S INSTITUTIONS - 83. Transfers and supervision on release
The Secretary may, by court order at any time, transfer a child between rehabilitation schools; a child committed to a rehabilitation school must be under the supervision of a probation officer for two years after the prescribed stay, as ordered by the court.
Section 83. Transfers and supervision on release Section 83(1) The Secretary may through a court order, at any time cause a child to be transferred from one rehabilitation school to another, but the period of his or her rehabilitative care shall not be increased by reason of such transfer. Section 83(2) A child committed to a rehabilitation school shall, after the expiration of the prescribed period of his or her stay, be under the supervision of a probation officer, as ordered by the court for a period of two years. - 84 Verify source ↗
CHILDREN’S INSTITUTIONS - 84. Absconding children and children of difficult character
Parents/guardians with parental responsibility must be notified of and heard in proceedings concerning the child; the State must bear expenses for committing a child; children committed or whose committal is extended must be provided appropriate professional assistance, including legal services.
Section 84. Absconding children and children of difficult character Section 84(1)(a) in the case of a child below the age of sixteen years, directing that the period of committal be extended by a period not exceeding six months; Section 84(1)(b) in the case of a child above the age of sixteen years, directing that the child be transferred to a borstal institution; or Section 84(1)(c) cases where the child’s conduct is attributable to drug abuse; Section 84(1)(c)(i) cases where the child’s conduct is attributable to drug abuse; Section 84(1)(c)(ii) cases where the child is of unsound mind; or Section 84(1)(c)(iii) cases where the child is suffering from a mental illness. Section 84(2) In any proceedings under this section, the parents, guardian or any other person who has parental responsibility over the child, shall be notified of, and be heard in, the proceedings, unless the Court is satisfied that such persons cannot be found, or cannot reasonably be expected to attend at the proceedings. Section 84(3) The expenses incurred in committing a child under this section shall be borne by the State. Section 84(4) In any case where the period of committal is extended, or where the child is committed to a borstal institution, the child shall be provided with appropriate professional assistance, including legal services in accordance with the law relating to legal aid. - 85 Verify source ↗
CHILDREN’S INSTITUTIONS - 85. Removal to health institution
Managers and medical officers must arrange medical transfers and returns for seriously ill detained children and take precautions to prevent escape, with medical judgement protecting the child's wellbeing.
Section 85. Removal to health institution Section 85(1) Where a child detained in a remand home or rehabilitation school is seriously ill and in need of medical care, the manager shall facilitate the removal of the child to an appropriate health facility on the advice of a psychologist, medical officer or medical practitioner. Section 85(2) If the medical officer in charge of a health institution is of the considered view that the health of a child removed to a hospital under the provisions of this section no longer requires treatment, the medical officer shall notify the manager of the remand home or rehabilitation school from which the child was referred, and the manager shall thereupon facilitate the return of the child to the home or school. Section 85(3) The medical officer in charge of the health institution at which the child is hospitalized shall take such reasonable precautions as may be necessary to prevent the child from escaping: Provided that nothing shall be done under the authority of this section which in the opinion of the medical officer in charge of the health institution is likely to be prejudicial to the health or wellbeing of the child concerned. - 86 Verify source ↗
CHILDREN’S INSTITUTIONS - 86. Authority to confine a child
An order committing a child to a remand home or sending the child to a rehabilitation school authorizes the child's confinement in that place, and a child is deemed in lawful custody when confined to or being conveyed to or from such institutions or a health institution.
Section 86. Authority to confine a child Section 86(1) The order committing a child to custody in a children’s remand home or ordering him to be sent to a rehabilitation school shall be sufficient authority for his confinement in that place in accordance with the tenure thereof, or in a health institution in accordance with section 85 . Section 86(2) A child shall be deemed to be in lawful custody where the child is confined to or is being conveyed to or from a children’s remand home or a rehabilitation school to or from a health institution, as the case may be. - 87 Verify source ↗
CHILDREN’S INSTITUTIONS - 87. Supervision of institutions
The Secretary must supervise and inspect child rescue and care institutions, and must facilitate placement of children into alternative family care as soon as possible; children should not remain in a rescue centre for more than six months.
Section 87. Supervision of institutions Section 87(1) The Secretary shall be responsible for the supervision of all rescue centres, child protection centres, charitable children’s institutions, remand homes and rehabilitation schools. Section 87(2) In the discharge of the Secretary’s supervisory responsibilities under this section, the Secretary shall inspect or cause to be inspected the schools, homes and centres referred to in subsection (1) for the purpose of ascertaining the conditions of the centres and the wellbeing of the children placed in such centres. Section 87(3)(a) the conditions of the institutions to which this section relates; and Section 87(3)(b) the wellbeing of the children therein placed. Section 87(4) For the purposes of this section, the Secretary shall facilitate placement of a child under the custody of a rescue centre to appropriate alternative family care at the earliest opportunity: Provided that no child shall be placed in a child rescue centre for a period exceeding six months. - 88 Verify source ↗
CHILDREN’S INSTITUTIONS - 88. Inspection committees
The Cabinet Secretary must appoint an inspection committee to inspect rescue centres, child protection centres, charitable children’s institutions, remand homes, rehabilitation schools and borstal institutions.
Section 88. Inspection committees Section 88(1) The Cabinet Secretary shall appoint an inspection committee to inspect any rescue centre, child protection centre, charitable children’s institution, remand home or rehabilitation school or a borstal institution. Section 88(2) The committee appointed under subsection (1) shall be comprised of not more than five persons, and shall exercise and perform, subject to any directions given by the Cabinet Secretary. Section 88(3)(a) inspect rehabilitation schools, children’s remand homes, charitable children’s institutions, child rescue centres, child protection centres and other child care facilities; Section 88(3)(b) interview any child in the premises or institution, and, in so doing, ensure confidentiality; Section 88(3)(c) interview the manager and other members of staff in the institution; Section 88(3)(d) inspect the conditions and facilities provided by the institution or manager of the premises; and Section 88(3)(e) make recommendations on necessary improvements, remedial measures or closure of the institution or premises, or relocation of children housed in the institution or premises. Section 88(4) Subject to subsection (3), the Secretary shall, within three months of the receipt from the Cabinet Secretary of any directions relating to the recommendations made under this section, report to the Cabinet Secretary specifying the steps taken by the Secretary to implement the recommendations of the inspection committee. Section 88(5) The recommendations referred to in this section may include closure, deregistration and revocation of a certificate of approval. Section 88(6) The Cabinet Secretary shall prescribe regulations for composition and conduct of an inspection committee. - 89 Verify source ↗
CHILDREN’S INSTITUTIONS - 89. Regulations
Regulations on the establishment, administration and supervision of children institutions.
Section 89. Regulations Section the establishment, administration and supervision of children institutions;
Part VIII
CHILDREN’S COURTS
- 100 Verify source ↗
CHILDREN’S COURTS - 100. Rules
The Chief Justice must make rules to give effect to this Part.
Section 100. Rules Section The Chief Justice shall make Rules to give effect to this Part. - 90 Verify source ↗
CHILDREN’S COURTS - 90. Designation of the Children’s Court
The Chief Justice may designate children’s courts in counties and sub-counties and may appoint magistrates to preside over cases involving children; there shall be a Registrar and Deputy Registrars; the children’s Court has civil and criminal jurisdiction; the High Court may entertain appeals or references relating to diversion or trial of a child.
Section 90. Designation of the Children’s Court Section 90(1) The Chief Justice may, by notice in the Gazette , designate children’s courts in such counties and sub counties as the Chief Justice may determine. Section 90(2) The Chief Justice may, by notice in the gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country. Section 90(3) There shall be a Registrar and such number of Deputy Registrars of the Court as may be appointed in accordance with the Judicial Service Act (Cap. 8A). Section 90(4) Without prejudice to the generality of subsection (1), the children’s Court shall have civil and criminal jurisdiction. Section 90(5) Nothing in this section shall preclude the High Court from entertaining an appeal or other reference relating to the diversion or trial of a child in conflict with the law: Provided that in exercise of its jurisdiction under this Act, the Court shall comply with the provisions of this Act. - 91 Verify source ↗
CHILDREN’S COURTS - 91. Jurisdiction of the Children’s Court
Section 91 sets out the jurisdiction and powers of the Children’s Court, obligations to transfer cases between Children’s Courts and other courts based on age, who must preside over children’s cases, High Court powers on appeal involving children, and that Children’s Courts may inspect children’s institutions.
Section 91. Jurisdiction of the Children’s Court Section 91(1)(a) conduct civil proceedings on matters set out under Parts III, VII, VIII, IX, X, XI, XIII, XIV and XV of this Act; Section 91(1)(b) hear any charge against a child, other than a charge of murder; Section 91(1)(c) hear a charge against any person accused of an offence under this Act; Section 91(1)(d) hear a charge in any case in which a person is accused of an offence against a child or in which a child is the victim or complainant; and Section 91(1)(e) exercise any other jurisdiction conferred by this Act or any other written law. Section 91(2) Subject to any rules or directions made or issued by the Chief Justice, where under any other written law any matter involving a child is required to be heard by a Court other than a Children’s Court, that other Court shall, for the purposes of that matter, be deemed to be a Children’s Court, and shall be bound by the provisions of this Act. Section 91(3) Any reference to a subordinate court of any class in the First Schedule to the Criminal Procedure Code ( Cap. 75 ) shall include a Children’s Court. Section 91(4) The Magistrate in charge of the Courts station or his or her representative shall preside over all cases involving children in respect of the Court’s jurisdiction. Section 91(5) Where, in the course of any proceedings in a children’s Court, it appears to the Court that the person charged, or to whom the proceedings relate, is above the age of eighteen years, the Court shall transfer the proceedings to a Court other than a children’s Court to conduct the proceedings under any other relevant law. Section 91(6) Where, in the course of any proceedings in any Court other than a Children's Court, it appears to the Court that the person charged or to whom the proceedings relate, is under the age of eighteen years, the Court shall transfer the proceedings to a Children's Court to conduct the proceedings under this Act: Provided that no transfer shall be necessary in any case where the magistrate concerned is duly appointed in accordance with section 90 to preside over matters relating to children. Section 91(7) Where any conviction or sentence made or passed by a Court other than a Children's Court is appealed against, or is brought before the High Court for confirmation or revision, and it appears that the person convicted was at the time of commission of the offence under the age of eighteen years, the High Court shall have power to substitute for the conviction a finding of guilt in accordance with section 221 . Section 91(8) A Children’s Court may, either on its own motion or on the application by any person, visit any children’s institution and assess its condition and the circumstances under which the children are admitted, and on assessment, make any order as the Court may determine in the best interest of the children. - 92 Verify source ↗
CHILDREN’S COURTS - 92. Friendly environment of Children’s Court
A Children’s Court must have a setting that is friendly to the children who are before it.
Section 92. Friendly environment of Children’s Court Section A Children’s Court shall have a setting that is friendly to the children who are before it. - 93 Verify source ↗
CHILDREN’S COURTS - 93. Sitting of Children’s Court
Specifies when and where Children’s Court sittings occur, who may be present, provisions for converting Magistrates’ courts, and service and hygiene standards for children.
Section 93. Sitting of Children’s Court Section 93(1) A Children’s Court shall sit at such times and in such locations as the Chief Justice may, by notice in the Gazette , determine. Section 93(2) Without prejudice to the generality of subsection (1), a children’s Court shall not sit at the same time, or in the same Courtroom at which the sittings of the Court, other than the sittings of the children’s Court, are held: Provided that any Magistrates court may be converted into a Children court for the purpose of conducting proceedings under this Act. Section 93(3)(a) the provision of the individual needs of children, having regard to their state of health, age and gender; Section 93(3)(b) the provision of such services as may be required to meet the special needs of children in need of care, including children with disabilities; and Section 93(3)(c) the highest attainable standards of hygiene, sanitation and comfort. Section 93(4)(a) the judicial officer, members and other officers of the Court; Section 93(4)(b) a children’s officer duly appointed by the Secretary to assist the children’s Court in its proceedings; Section 93(4)(c) parents or guardians of the child involved in the proceedings; Section 93(4)(d) any person directly or indirectly involved in the matter before the Court, including complainants, witnesses and any professional required to submit any report on a child to whom the proceedings relate; Section 93(4)(e) a duly accredited journalist or duly registered media professional; or Section 93(4)(f) such other persons as the Court may authorize to be present. Section 93(5) Nothing in this section shall prevent the Court from holding its sittings in camera to the exclusion of any person mentioned in paragraphs (c), (d) and (e). - 94 Verify source ↗
CHILDREN’S COURTS - 94. Power to make orders relating to privacy in proceedings
Power to make orders relating to privacy in proceedings, including allowing a witness to give evidence under the protective cover of a witness protection box
Section 94. Power to make orders relating to privacy in proceedings Section allowing such witness to give evidence under the protective cover of a witness protection box; - 95 Verify source ↗
CHILDREN’S COURTS - 95. General principles with regard to proceedings in Children’s Court
The Court must not make an order about a child under this Act unless it considers that doing so is in the best interest of the child.
Section 95. General principles with regard to proceedings in Children’s Court Section 95(1) Subject to subsection (4), where the Court is considering whether or not to make an order under this Act with respect to a child, the Court shall not make any order unless it considers that doing so is in the best interest of the child. Section 95(2)(a) the ascertainable feelings and wishes of the child concerned having regard to the child’s age and understanding; Section 95(2)(b) the child’s physical, emotional and educational needs and, in particular, where the child has a disability or chronic illness or where the child is intersex, the ability of any person or institution to provide any special care or medical attention which may be required for the wellbeing of the child; Section 95(2)(c) the likely effect on the child of any change in circumstances; Section 95(2)(d) the child’s age, sex, religious persuasion and cultural background; Section 95(2)(e) any harm the child may have suffered or is at the risk of suffering; Section 95(2)(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; Section 95(2)(g) the customs and practices of the community to which the child belongs and the need to ensure that the child easily integrates while not subjected to harmful cultural practices; Section 95(2)(h) the child’s exposure to, or use of, drugs or other psychotropic substances and, in particular, whether the child is addicted to the same, and the ability of any person or institution to provide any special care or medical attention which may be required for the child; and Section 95(2)(i) the powers which the Court has under this Act or any other written law. Section 95(3) In any proceedings in which an issue arises as to the upbringing of a child, the Court shall have regard to the general principle that any delay in determining the question is likely to be prejudicial to the welfare of the child. Section 95(4) The Court may, if it considers it necessary for the proper determination of any matter in issue before it, either of its own motion or on application by any person, summon any expert witness whom it considers appropriate to provide assistance to the Court, and the expenses of any such witness, shall be assessed by the Court and such expenses shall be a charge on the Judiciary Fund. Section 95(5)(a) a child’s name, identity, home or last place of residence or school; Section 95(5)(b) the particulars of the child’s parents or relatives; or Section 95(5)(c) any photograph, depiction or caricature of the child. Section 95(6) The Registrar of the Children’s Court shall cause to be marked all records of the Court concerning a child so as to indicate that such records relate to matters involving a child, and such records shall only be available to any person without disclosure of any of the particulars specified in subsection (5). Section 95(7) For the avoidance of doubt, the name or other particulars of the child shall be marked to indicate that they concern a child, and access may be restricted and available only without particulars as specified in subsection (5). Section 95(8) Any person who contravenes the provisions of subsections (5) and (6) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding twelve months, or to both, and, in the case of a body corporate, a fine of not less than one million shillings. - 96 Verify source ↗
CHILDREN’S COURTS - 96. Provision of Legal aid in certain cases
If an unrepresented child under sixteen is before a children’s Court in proceedings, the Court must order that the child be granted legal representation; a child in conflict with the law is entitled to legal representation at the State’s expense.
Section 96. Provision of Legal aid in certain cases Section 96(1) Where a child who has not attained the age of sixteen is a complainant or is otherwise brought before a children’s Court in proceedings under this Act or any other written law, the Court shall, where the child is unrepresented, order that the child be granted legal representation in accordance with the Legal Aid Act (Cap. 16A). Section 96(2) Any reasonable fees and expenses incurred in relation to the legal representation of a child under subsections (1) or (2) shall be a charge on the Legal Aid Fund. Section 96(3) Without prejudice to the generality of subsection (1), a child in conflict with the law shall be entitled to legal representation at the State’s expense. - 97 Verify source ↗
CHILDREN’S COURTS - 97. Power of Court to order production of reports
When considering matters about a child, the Court may summon or direct any person to prepare and present reports or statements about the child; material in such reports or related evidence may be relevant to issues before the Court; when an expert is ordered or summoned a party must be given an opportunity to submit views before the Court makes an order.
Section 97. Power of Court to order production of reports Section 97(1) When considering any question with respect to a child under this Act, the Court may summon and direct any person to prepare and present to it a report or statement containing such information in respect of a child as the Court may direct. Section 97(2)(a) any statement contained in the report referred to in subsection (1); or Section 97(2)(b) any evidence given in respect of the matters referred to in the report and in so far as the statement or evidence is, in the opinion of the Court, relevant to any matter in issue before the Court. Section 97(3) Where the Court orders or summons an expert pursuant to subsection (1), a party to the proceedings shall be given an opportunity to submit their views before the court makes an order. - 98 Verify source ↗
CHILDREN’S COURTS - 98. Appointment of guardianad litem
A court where a child is brought may appoint a guardian ad litem to represent the child's interests in the proceedings, especially if the child lacks an advocate.
Section 98. Appointment of guardianad litem Section A court before which a child is brought, and especially where that child is not represented by an advocate, may appoint guardian ad litem for the purposes of the proceedings in question and to safeguard the interests of the child. - 99 Verify source ↗
CHILDREN’S COURTS - 99. Appeals
Appeals lie to the High Court on points of fact and law.
Section 99. Appeals Section in the first instance, to the High Court on points of fact and law; and
Part X
GUARDIANSHIP
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GUARDIANSHIP - 122. Appointment of guardian
Section 122 sets rules on guardians: a guardian appointed under the Act must be a Kenyan citizen; a guardian who is not a parent must not remove the child from Kenya without a Court order (leave only in exceptional circumstances); where leave is granted the Court must impose conditions; notwithstanding leave rules the guardian must produce the child to court upon return; where guardian is appointed only for the estate they need not have custody.
Section 122. Appointment of guardian Section 122(1) In this Part, "guardian" means a person appointed by will or deed by a parent of a child or 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 in accordance with the provisions of this Act; Section 122(2) A guardian may be appointed on application in the prescribed form in respect of any child who is resident in Kenya whether or not the child was born in Kenya or is a Kenyan Citizen. Section 122(3) A guardian appointed under this Act shall be a Kenyan citizen. Section 122(4) A guardian who is not the father or mother of a child shall not remove the child from the jurisdiction of the Republic of Kenya without obtaining an order of the Court, and such leave shall be granted only in exceptional circumstances and in accordance with subsection (6). Section 122(5) Where leave is granted under this section, the Court shall impose such conditions and restrictions as it shall consider appropriate having regard to the best interests of the child. Section 122(6) Notwithstanding subsections (4) and (5) the guardian shall be required to produce the child to court upon return. Section 122(7) A guardian may be appointed in respect of the person or estate of the child or both. Section 122(8) Where a guardian is appointed only in respect of the estate to which the child is a beneficiary, it shall not be necessary for that purpose for the guardian to have actual custody of the child. Section 122(9)(a) the power and responsibility to administer the estate of the child and, in particular, to receive, recover and invest, the property of the child in his own name in trust for, and for the benefit of, the child; Section 122(9)(b) the power to create a Trust Fund for the child in respect to any estate of the child; Section 122(9)(c) the duty to take all reasonable steps to safeguard the estate of the child from loss or damage; Section 122(9)(d) the parent or custodian of the child; Section 122(9)(d)(i) the parent or custodian of the child; Section 122(9)(d)(ii) the Secretary; Section 122(9)(d)(iii) the Court; and Section 122(9)(d)(iv) such other person as the Court may direct; or Section 122(9)(e) the duty to produce any account or inventory in respect of the child’s estate when required to do so by the Court. - 123 Verify source ↗
GUARDIANSHIP - 123. Rights of surviving parent as to guardianship and power of Court
If a child's father dies, the surviving mother shall be the child's guardian (alone or jointly); if the mother dies, the surviving father shall be guardian (alone or jointly). If no appointed guardian exists or that guardian will not act, the Court may appoint a guardian to act jointly; the Court may also determine on application whether a separated surviving parent is fit to act as guardian.
Section 123. Rights of surviving parent as to guardianship and power of Court Section 123(1) On the death of the father of a child, the mother, if surviving, shall be the guardian of the child either alone or jointly with the guardian appointed by the father if any, but if 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. Section 123(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 the guardian, if any, appointed by the mother, or if such guardian is dead or refuses to act, the Court may appoint a guardian to act jointly with the father. Section 123(3) Where a surviving parent is separated from the deceased parent before his or her death, the Court may, on application by any other person, determine whether the surviving parent is fit to act as guardian of the child. - 124 Verify source ↗
GUARDIANSHIP - 124. Appointment of testamentary guardian
Either parent may appoint a testamentary guardian by will or deed; guardians and appointed persons have specified duties to act jointly with surviving parents and procedural requirements apply for deeds and wills.
Section 124. Appointment of testamentary guardian Section 124(1) Either parent of a child may, by will or deed, appoint any person to be the guardian of the child after that parent’s death. Section 124(2) The guardian of a child may, by will or deed, appoint another person to act in his or her place as the guardian of the child in the event of such guardian’s death. Section 124(3)(a) in the case of an appointment by deed, the deed is dated and is signed by the person making the appointment in the presence of two competent witnesses; Section 124(3)(b) in the case of appointment made by a written will, the will is made, executed and attested in accordance with the law relating to testamentary instruments. Section 124(4) A guardian appointed under this section shall act jointly with the surviving parent of the child during the life time of the parent, unless the parent objects to the guardian’s appointment. Section 124(5)(a) decline to make an order confirming the testamentary appointment of the guardian, in which case the surviving parent shall be the sole guardian; Section 124(5)(b) make an order directing that the guardian shall act jointly with the surviving parent; Section 124(5)(c) make an order appointing a relative of the child or other person willing to act as guardian of the child, to act jointly with the parent or guardian, or both such parent and guardian; or Section 124(5)(d) custody of the child and the rights of access by the parent and relatives, having regard to the welfare of the child as it may think fit; and Section 124(5)(d)(i) custody of the child and the rights of access by the parent and relatives, having regard to the welfare of the child as it may think fit; and Section 124(5)(d)(ii) payment of a financial provision by the parent towards the maintenance of the child having regard to the means of the parent, as the Court may consider reasonable: Section 124(6) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, have joint responsibility towards the child. Section 124(7) If a guardian is appointed to act jointly with the surviving parent in accordance with subsection (5), the guardian shall continue to act as guardian after the death of the parent: Provided that if the surviving parent has appointed a guardian, the guardian appointed by the Court shall act jointly with the guardian appointed by the parent. Section 124(8) Any person, not being a parent of a child, in whose favour an existing custody or residence order in respect of a child has been made, or to whom the care of a child has been entrusted by virtue of being a fit person under this Act, shall act jointly with the surviving parent of a child or with his guardian: Provided that the surviving parent or guardian shall be entitled to apply to the Court for an order giving effect to a different arrangement, with regard to the child. - 125 Verify source ↗
GUARDIANSHIP - 125. Appointment of guardian by the Court
The Court may appoint a guardian in the specified circumstances; the Chief Justice must make rules to guide guardianship procedures.
Section 125. Appointment of guardian by the Court Section 125(1)(a) where the child’s parents are deceased or cannot be found, and the child has no guardian or other person having parental responsibility over the child; or Section 125(1)(b) where the child is one to whom section 121 applies. Section 125(2) The Chief Justice shall make rules to guide the procedures for guardianship. - 126 Verify source ↗
GUARDIANSHIP - 126. Customary guardianship
The Chief Justice must make rules to guide procedures for matters relating to customary guardianship.
Section 126. Customary guardianship Section 126(1)(a) where the child’s parents are deceased or cannot be found, and the child has no guardian or other person having parental responsibility over the child; or Section 126(1)(b) where the child is one to whom section 121 applies. Section 126(2) The Chief Justice shall make rules to guide the procedures for matters relating to customary guardianship. - 127 Verify source ↗
GUARDIANSHIP - 127. Extension of appointment of guardian beyond child’s eighteenth birthday
A guardian’s appointment ends when the child turns eighteen unless a court extends it for exceptional circumstances (for example, mental or physical disability or illness) and the court may attach conditions or later vary, modify or revoke such orders.
Section 127. Extension of appointment of guardian beyond child’s eighteenth birthday Section 127(1) The appointment of a guardian shall expire upon the child attaining the age of eighteen years, unless exceptional circumstances exist that would require a court to make an order that appointment be extended. Section 127(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 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. Section 127(3)(a) the child; Section 127(3)(b) the parent or guardian of the child; Section 127(3)(c) a relative of the child; or Section 127(3)(d) the Secretary: Section 127(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. Section 127(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. - 128 Verify source ↗
GUARDIANSHIP - 128. Revocation or disclaimer of appointment
Section 128 allows a person appointed guardian under sections 122 or 123 to disclaim the appointment by a written instrument within a reasonable time and signed as soon as reasonably practicable after knowing the appointment took effect; disclaimers must be in prescribed form and delivered/recorded in accordance with regulations.
Section 128. Revocation or disclaimer of appointment Section 128(1) The appointment of a guardian under section 122 revokes any earlier appointment including an agreement made in an unrevoked will or codicil made by the same person in respect of the same child, unless it is clear, whether as the result of an express provision in the later appointment or by necessary implication, that the purpose of the latter appointment is to appoint an additional guardian. Section 128(2)(a) by the person making the appointment; or Section 128(2)(b) in the presence of the guardians, two witnesses and each of whom shall attest to the signature at the direction of the person making the appointment. Section 128(3) An appointment under section 125 shall stand revoked if the will or codicil under which it is made is revoked. Section 128(4) A person who is appointed a guardian under sections 122 or 123 may disclaim the appointment by instrument in writing made within a reasonable time and signed by the person as soon as it is reasonably practicable after knowing that the appointment has taken effect. Section 128(5) A disclaimer made under this section shall not take effect unless it is made in the prescribed form and delivered in accordance with regulations and, where regulations are made by the Chief Justice prescribing the manner in which such disclaimer shall be recorded, no such disclaimer shall have effect unless it is recorded in the prescribed manner. Section 128(6)(a) any parent or guardian of the child; Section 128(6)(b) the child to whom the appointment relates; Section 128(6)(c) a relative of the child; or Section 128(6)(d) a person acting on behalf and in the best interest of a child. Section 128(7) Where a Court revokes an appointment of a guardian, the Court shall specify who shall have guardianship or legal custody of the child. - 129 Verify source ↗
GUARDIANSHIP - 129. Dispute between guardians
Joint guardians, or the surviving parent and a guardian acting jointly, may apply to the Court for directions about matters concerning a child’s welfare; the Court may make orders it deems proper. Certain other persons may apply with the Court’s leave.
Section 129. Dispute between guardians Section 129(1) Where two or more persons acting as joint guardians to a child, or where the surviving parent and a guardian acting jointly, fail to agree on any matter concerning the welfare of the child, any of them may apply to the Court for directions in that regard, and the Court may make such orders regarding the matters in difference as the Court may deem proper. Section 129(2) Any relative of the child, the child, the Secretary, a person acting on behalf and in the best interest of a child, a person who has parental responsibility over the child or a person who has been authorized to act jointly with a guardian under sections 122 and 123 may, with leave of the Court, apply to the Court for directions or determination of any matter affecting the welfare of the child arising from or connected with the exercise of the guardian’s parental responsibility, and the Court may make such order regarding the matters in contention as it may deem proper. - 130 Verify source ↗
GUARDIANSHIP - 130. Powers of guardian
A guardian appointed under sections 122 and 126 has the same powers over the child or the child's estate as a guardian appointed under the Law of Succession Act (Cap. 160).
Section 130. Powers of guardian Section A guardian appointed under section 122 and 126 shall have the same powers over the child, or over the estate of a child, as a guardian appointed by deed or will or otherwise under the Law of Succession Act ( Cap. 160 ). - 131 Verify source ↗
GUARDIANSHIP - 131. Neglect or misapplication of assets by guardian of a child’s estate
A guardian of a child’s estate neglects to recover or safeguard the child’s estate.
Section 131. Neglect or misapplication of assets by guardian of a child’s estate Section neglects to recover or safeguard the estate of a child, or - 132 Verify source ↗
GUARDIANSHIP - 132. Offence by guardians of a child’s estate
Guardians who willfully or recklessly mismanage a child’s estate (neglect, misapply, cause loss/waste, fail to produce required accounts, or produce false accounts) commit an offence; the Court may order restoration and surrender to a Court-appointed administrator; guardians must restore the estate's value if misappropriated.
Section 132. Offence by guardians of a child’s estate Section 132(1)(a) willfully or recklessly neglects to receive or safeguard any asset forming part of the estate, misapplies any such asset or subjects any such asset to loss, waste or damage; Section 132(1)(b) willfully fails to produce to the Court, or the parent or guardian of the child any account or inventory required by the provisions of section 121 ; or Section 132(1)(c) willfully or recklessly produces any such inventory or account which is false or misleading in any material particular, Section 132(2) In addition to the penal sanctions prescribed in subsection (1), the Court may order such person to restore and surrender the estate to an administrator appointed by the Court for proper administration on behalf of the child. Section 132(3) A guardian who misappropriates or renders the property of a child liable to loss or waste shall be bound to restore the value of such estate to the child or to the administrator, if any, appointed by the Court pursuant to subsection (2). - 133 Verify source ↗
GUARDIANSHIP - 133. Power of Chief Justice to make Rules
The Chief Justice must make regulations to implement this Part, including procedural rules on how applications under this Part may be made.
Section 133. Power of Chief Justice to make Rules Section The Chief Justice shall make regulations to give effect to this Part, including rules of procedure directing the manner in which applications may be made under this Part.
Part XI
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN
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JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 134. Power of Court to make orders in certain proceedings
The Court has the power to make orders to protect a child in proceedings concerning the child's welfare and upbringing.
Section 134. Power of Court to make orders in certain proceedings Section 134(1) The Court may make any order under this Act or any other written law for the protection of a child in any proceedings concerning the welfare and upbringing of the child. Section 134(2)(a) the child; Section 134(2)(b) the parent, guardian or custodian of the child; Section 134(2)(c) a relative of the child; Section 134(2)(d) the Secretary; Section 134(2)(e) an authorised officer: and Section 134(2)(f) a person acting on behalf and in the best interest of child; Section 134(2)(i) if to do so would be detrimental to the interest of the child; or Section 134(2)(ii) if the desired effect of the orders sought by the applicant may be achieved by making only one order. Section 134(3)(a) giving directions on how the order shall be carried out; Section 134(3)(b) imposing the conditions to be complied with in carrying out the Order; Section 134(3)(c) specifying the duration for which the order shall remain in force; and Section 134(3)(d) attaching such supplementary or consequential provisions as the Court may think fit. Section 134(4) An application for an order under this Part may be made either orally or in writing whether separately or as part of any proceedings under this Act. Section 134(5) Except as is otherwise provided under this Act, an order made under this Part shall cease to have effect on the child attaining the age of eighteen years. Section 134(6) Nothing in this section shall limit the power of the Court to make an order in determination of an oral application made under this Part. - 135 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 135. Orders which Court may make
Section 135 lists various orders the Court may make for the care and protection of children, including access, residence, assessment, assistance, wardship, provisional care, production, protection and non-interference orders.
Section 135. Orders which Court may make Section 135(1)(a) an access order, which shall require the person with whom the child is residing to allow the child to visit, or to stay periodically with the person named in the order, or to allow such person to have such other contact with the child as may be directed by the Court: Provided that an access order made under this section shall not be made in relation to a child in respect of whom a care order has been made under this Part, but access to the child concerned may be obtained upon an application made under section 149 ; Section 135(1)(b) a residence order, requiring a child to reside with a person named in the order and determining the arrangements to be made to facilitate the residence of the child with the person named in the order; Section 135(1)(c) to depart from the home in which the child is residing; Section 135(1)(c)(i) to depart from the home in which the child is residing; Section 135(1)(c)(ii) to restrain the person from entering the home or any specified part of the home or from a specified area in which the home is located; or Section 135(1)(c)(iii) to restrain any other person from taking the child to the person against whom the child needs protection, for such period as the Court may specify; Section 135(1)(d) a child assessment order requiring a child or the child’s family to be investigated or evaluated by a person appointed by the Court to assist the Court in determining any matter concerning the welfare and upbringing of the child; Section 135(1)(e) a family assistance order requiring a person appointed by the Court to provide such advice, counselling and guidance to a child, his parents or custodian or guardians, the child’s relatives, or any person who has care and control of the child or with whom the child is residing, as the Court may specify; Section 135(1)(f) a wardship order requiring that a child be placed under the protection and custody of the Court; Section 135(1)(g) a provisional child care order requiring placement of a child for provisional care by any fit person or institution pending further orders of the court; Section 135(1)(h) to disclose any information regarding the whereabouts of the child; or Section 135(1)(h)(i) to disclose any information regarding the whereabouts of the child; or Section 135(1)(h)(ii) to produce the child before the Court and restraining the person from removing the child from the jurisdiction of the Court for such period as the Court may specify; Section 135(1)(i) a protection order directing care and protection of a child involved in drug abuse or who has been a victim of ideological radicalization or criminal gangs; or Section 135(1)(j) a non-interference order preventing any fit person from interfering with the life of a child in relation to any matter, including the education of the child. Section 135(2) Without prejudice to the generality of subsection (1)(h), the Court may make a production order requiring any children institution at which a child has been accommodated for a period exceeding the time limited by an order of the Court or the provisions of this Act to produce the child before the Court to facilitate the making of such other order as the Court may deem fit on such terms as the Court may direct. - 136 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 136. Supervision order
The Court may make a supervision order placing a child under a children’s officer or authorized officer; the Court may vary, discharge or extend such orders on application of the supervisor; the Court must not extend a supervision order unless notice of the application has been given to parents or guardians or other persons with parental responsibility.
Section 136. Supervision order Section 136(1) The Court may, either of its own motion or on application by any person for any order directing the care and protection of a child, make an order, in this Act referred to as a supervision order, placing the child under the supervision of a children’s officer or an authorized officer. Section 136(2) The Court may make a supervision order under subsection (1), notwithstanding that the child remains in the care and custody of his or her parent, guardian, custodian or any other person with whom the child is for the time being resident. Section 136(3)(a) such enquiries or investigations as may be prescribed in the rules made under this Part be undertaken and, in particular, that a welfare report or other report be lodged with the Court; and Section 136(3)(b) written notice of the proceedings be given to the parent, guardian, custodian or any other person with whom the child for the time being resides. Section 136(4) A supervision order shall not remain in force for a period exceeding twelve months. Section 136(5) Without prejudice to the generality of subsection (3), the Court may, on application of the supervisor, vary, discharge, or extend the order given under subsection (1) for such further period as the Court may deem necessary, having regard to the best interests of the child. Section 136(6) The Court shall not make an order extending a supervision order made under this section unless notice of the relevant application has been given to the parents or guardians of the child, or any other person having parental responsibility in respect of the child, and who may be heard in the proceedings. - 137 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 137. Power to make interim supervision order
The Court may make an interim supervision order in specific situations; such an interim order must not remain in force for more than two months unless the Court extends it.
Section 137. Power to make interim supervision order Section 137(1)(a) where the Court has reason to believe that the living conditions of the child concerned require that an interim order be made pending the submission of a welfare report prepared in accordance with section 136 (3); Section 137(1)(b) on adjournment of an application for a supervision order; or Section 137(1)(c) upon the making of orders for the assessment of the child under section 135 . Section 137(2) An interim order made under this section shall not remain in force for a period exceeding two months, unless the Court extends the order for such other period as the Court considers necessary in the best interest of the child. - 138 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 138. Discharge of supervision order
A supervision order is automatically discharged when the child attains the age of eighteen years; subsection (1) lists persons (the child with the leave of the Court; parents or custodian or any person with parental responsibility; the supervisor; any person with whom the child resides; or a person acting on behalf and in the best interest of the child).
Section 138. Discharge of supervision order Section 138(1)(a) the child with the leave of the Court; Section 138(1)(b) the parents or custodian of the child or any person with parental responsibility in respect of the child; Section 138(1)(c) the supervisor; Section 138(1)(d) any person with whom the child for the time being resides; or Section 138(1)(e) a person acting on behalf and in the best interest of child Section 138(2) Any order made under this section shall be automatically discharged when the child in respect of whom it is made attains the age of eighteen years. - 139 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 139. Power of arrest
If the Court makes an order under section 135(1)(c), (d) or (g) it may attach a power of arrest; a person named in such an order is liable to arrest if they contravene any stipulation or condition while the order remains in force.
Section 139. Power of arrest Section Where a Court makes an order pursuant to section 135 (1) (c), (d) or (g), the Court may attach a power of arrest to the order, and the person named in the order shall be liable to arrest if he or she contravenes any stipulation or condition contained in the order while the order remains in force. - 140 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 140. Penalty
Any person who contravenes an order under section 135 or who obstructs or unlawfully interferes with a court-appointed person in executing duties under that order commits an offence and is liable on conviction to imprisonment for up to twelve months, a fine up to two million shillings, or both.
Section 140. Penalty Section Any person who contravenes an order made under section 135 , or who obstructs or unlawfully interferes with a person appointed by the Court in the execution of his duties under an order made under that section, commits an offence and is liable on conviction to imprisonment for a term not exceeding twelve months or to a fine not exceeding two million shillings, or to both. - 141 Verify source ↗
JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN - 141. Review, etc., of order
Review, vary, suspend or discharge any order made under this Part.
Section 141. Review, etc., of order Section from time to time review, vary, suspend or discharge any order made under this Part; or
Part XII
CHILDREN IN NEED OF CARE AND PROTECTION
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CHILDREN IN NEED OF CARE AND PROTECTION - 142. Interpretation
Defines a person who, because of abuse, neglect, poverty, community upheaval or any other reason, has left home, family or community and lives, begs or works on the streets.
Section 142. Interpretation Section because of abuse, neglect, poverty, community upheaval or any other reason, has left his or her home, family or community and lives, begs or works on the streets; - 143 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 143. Jurisdiction of the Court
A Children’s Court has jurisdiction to make an order or render judgment under this Part even if the events leading to the order or judgment did not occur within the Court's local limits.
Section 143. Jurisdiction of the Court Section A Children’s Court shall have jurisdiction to make an order or render judgment under this Part notwithstanding that any act, matter, thing or circumstances giving rise to such order or judgment did not occur or arise within the local limits of the jurisdiction of the Court. - 144 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 144. When a child is in need of care and protection
A child who is an orphan and has no guardian is described as a child in need of care and protection.
Section 144. When a child is in need of care and protection Section who is an orphan and has no guardian; - 145 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 145. Proceedings in respect of children in need of care and protection
Sets procedures for reporting and handling children in need of care and protection, including duties for authorised officers, the Secretary, county government entities and children’s institutions, permissions for children and guardians, and safeguards on places of safety.
Section 145. Proceedings in respect of children in need of care and protection Section 145(1) Any person who has reasonable cause to believe that a child is in need of care and protection may report the matter to the nearest authorised officer, who shall take such steps as may be necessary for securing a Court order for the care and protection of the child in a place of safety or other alternative care in accordance with this Act. Section 145(2) An authorized officer or any other person who has reasonable cause to believe that a child is in need of care and protection shall take the child into safe custody and, at the earliest opportunity, place the child in a place of safety in facilities other than those in which children in conflict with the law are held, pending presentation to the Court for appropriate orders. Section 145(3) The Secretary shall monitor and ascertain whether the facilities in which the children are committed to in this section are suitably equipped to ensure the highest attainable standards of hygiene, sanitation and comfort, having regard to the special needs of the children. Section 145(4) Any child in need of care and protection may take refuge in a place of safety, and no person shall turn away a child in need of care and protection from any place of safety. Section 145(5) Where an application is made to a children’s Court for an order under section 150, and the child is not in a place of safety, the Court may direct the applicant to bring the child before the Court, whereupon the provisions of subsection (3) of that section shall apply so as to enable the Court to make an interim order for the temporary accommodation of the child in a place of safety or for his or her temporary committal to the care of a fit person. Section 145(6)(a) the establishment of contact between the child and his parent, or between the child and any person who has parental responsibility over the child; or Section 145(6)(b) the enforcement of the order. Section 145(7) Where a child is taken to a place of safety by an authorised officer or other person without reference to the Court, the parent or guardian or any person who has parental responsibility in respect of the child may apply to the Secretary for the release of the child from the place of safety into his or her care: Provided that if the Secretary refuses an application under this subsection, the Secretary shall notify the applicant in writing of the decision and the reasons for the refusal. Section 145(8) An applicant who is aggrieved by the decision of the Secretary under subsection (7) may apply to the Court for an order discharging the child from the place of safety concerned and placing him or her into the care of the applicant. Section 145(9)(a) lodge with the Court a statement specifying the grounds on which the child is brought before the Court; and Section 145(9)(b) give reasonable notice requiring the child’s parent or guardian, or such other person who has parental responsibility over the child, to attend at the Court before which the child is to appear. Section 145(10) Where any person intends to make any application under section 151 , the person shall forthwith notify the Secretary or his representative of the name and address of the child and the day and hour when, and the nature of the grounds on which, the child is to be brought before the Court. Section 145(11) On receiving the notice under subsection (10), the Secretary shall investigate and present to the Court a report on the child containing particulars as to the home, circumstances, age, state of health, character and general antecedents of the child, or such other information as may be necessary in assisting the Court in making appropriate orders under this Act. Section 145(12)(a) the county government entity or charitable children’s institution shall notify the Secretary within seven days of receiving the child into its care; Section 145(12)(b) the child shall be brought before a Court within seven days; Section 145(12)(c) the county government entity or charitable children’s institution shall submit a monthly report to the Secretary of all children received and accommodated in their respective institutions; Section 145(12)(d) the Secretary or an authorized officer, county government entity or charitable children’s institution investigates all cases involving children who are taken under their care and protection; Section 145(12)(e) the county government entity or charitable children’s institution shall not retain the child in its care if the parent or guardian of the child seeks to assume the care of the child; Section 145(12)(f) the county government entity or charitable children’s institution shall, when it appears to be in the interests of the child, endeavor to secure that the care of the child is assumed by a parent or guardian or a person who has parental responsibility for the child by a relative or friend who shall, if possible, be of the same religion, race, tribe or clan as the child. Section 145(13) The Council shall prescribe guidelines for the carrying out of investigations under subsection (12) (d). Section 145(14) A county government entity or charitable children’s institution which receives a child into its care under the provisions of this section shall be entitled to recover the cost of maintenance of such child from his parent, guardian or the person who has responsibility over the child. - 146 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 146. Healthcare
Authorised officers must take a child in need of healthcare to a registered health institution, which must provide appropriate treatment, care and hospital accommodation; medical practitioners/administrators must record and preserve information if certain offences against a child are suspected and must report findings to a children officer or authorised officer within forty-eight hours.
Section 146. Healthcare Section 146(1) If it appears to an authorised officer exercising powers under section 144 that a child is in need of healthcare, the officer shall forthwith take the child to a registered health institution, and the health institution shall provide the appropriate treatment, care and necessary hospital accommodation for the child. Section 146(2)(a) the child’s parent or guardian; Section 146(2)(b) any other person who has parental responsibility over the child; or Section 146(2)(c) the Secretary or his representative. Section 146(3) Where it appears to a medical practitioner or administrator of a health care institution or medical practitioner that any of the offences specified in the Fourth Schedule to this Act have been committed against a child, the medical practitioner or administrator shall forthwith take such measures as may be necessary to record and preserve any information with regard to the condition of the child in the form prescribed in regulations. Section 146(4) The medical practitioner or administrator referred to in subsection (3) shall report any finding of an offence against a child to a children officer or other authorised officer in the local jurisdiction of the health facility at which the child is attended within forty-eight hours of such finding. Section 146(5) Any expenses incurred in connection with the medical treatment or hospital accommodation of a child under this section shall be defrayed out of public funds. - 147 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 147. Determination as to child’s home, etc.
If a child in need of care and protection is found to have a home in a particular county government area, the Courts must order that the child be accommodated in that county entity's facility; the Court may also remit the case to the court of that local jurisdiction.
Section 147. Determination as to child’s home, etc. Section 147(1) If a child in need of care and protection is brought before a Court, and the Court determines that the child has a home in, or has been found in the local limits of, a particular county government entity concerned with matters relating to children, the Courts shall order that the child be accommodated in the facility operated by such entity. Section 147(2) Without prejudice to the generality of subsection (1), the Court may remit the case involving the child for determination by the Court within whose local jurisdiction the child has a home or was found. - 148 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 148. Parent or guardian to be heard in any application
When a child in need of care and protection is brought before the Court, the parent, guardian or other person with parental responsibility has the right to be heard and may participate; if such parent or guardian cannot be traced a relative may, with the Court's leave, be heard and participate; the Court may summon and direct attendance of those persons for proceedings under this Part.
Section 148. Parent or guardian to be heard in any application Section 148(1) If a child in need of care and protection is brought before the Court on an application by any person for orders in that regard, the parent, guardian or other person having parental responsibility over the child, has the right to be heard and may participate in the proceedings. Section 148(2) If the parent or guardian of a child to whom subsection (1) relates cannot be traced, any relative of the child may, with leave of the Court, be heard and participate in the proceedings referred to in subsection (1). Section 148(3) For the purposes of any proceedings under this Part, the Court may summon and direct the attendance of the parent, guardian or relative of a child, or of any other person having parental responsibility over the child. - 149 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 149. Power of Secretary to take over application
The Director of Public Prosecutions may authorise the Secretary to take over any application or proceedings concerning a child; but the Director may not terminate proceedings he has authorised the Secretary to assume control of without leave of the Court.
Section 149. Power of Secretary to take over application Section The Director of Public Prosecutions may authorise the Secretary at any stage in the proceedings under this Act, whether before, during or after the making of any application, to take over and assume the conduct of any application or proceedings in respect of a child: Provided that the Director of Public Prosecutions shall not terminate any proceedings which he has authorised the Secretary to assume control under this section without leave of the Court. - 150 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 150. Power of Court in respect of children in need of care and protection
Section 150 gives the court multiple powers and duties when a child in need of care and protection is before it, including ordering return or guardianship, committing to rehabilitation or rehabilitation centres, interim accommodation, and requiring parents to seek counselling.
Section 150. Power of Court in respect of children in need of care and protection Section 150(1) A Court before which any child in need of care and protection is brought may require an authorised officer or any other person to give a report or professional advice on any aspect of the proceedings relating to the manner in which the child should be dealt with. Section 150(2)(a) order that the child be returned to his or her parent or guardian, or to the person having parental responsibility over the child; Section 150(2)(b) order the parent or guardian of the child, or other person having parental responsibility over the child, to execute a bond with or without surety to exercise proper care and guardianship; Section 150(2)(c) if the Court is satisfied that it is in the best interests of the child, commit such child to a rehabilitation school suitable to the needs and interests of the child; Section 150(2)(d) without making any other order, or in addition to making an order under this section, make an order for guardianship under Part X; Section 150(2)(e) if the child is a victim of armed conflict, civil disturbance or natural disaster, make an order requiring the Secretary to take such steps as may be necessary to ensure that the child is provided with appropriate care and protection; Section 150(2)(f) in any other case, make an order directing that the child be reunited with his or her parent or guardian; Section 150(2)(g) if the child has a disability or other special needs, make an order directing that the Secretary takes such steps as are necessary to meet the special needs of the child; Section 150(2)(h) if the child is subjected to early marriage, make an order declaring that such marriage is a nullity and requiring the child to be placed under the care of a fit person, or that the child be accommodated in a place of safety; Section 150(2)(i) where it is shown to the satisfaction of the Court that the child has been engaged in drug abuse, make an order directing that the child be committed to a drug rehabilitation center for treatment, or that the child be accorded professional counselling; Section 150(2)(j) a child has accompanied the mother who is imprisoned or detained in lawful custody or remand; Section 150(2)(j)(i) a child has accompanied the mother who is imprisoned or detained in lawful custody or remand; Section 150(2)(j)(ii) a child or children have been left unattended in consequence of their mothers’ or fathers’ imprisonment or detention in lawful custody; or Section 150(2)(j)(iii) the child or children accompanying the mother to prison or other place of detention have attained the age of four years, Section 150(2)(k) make any other order which the Court may think fit, and in the best interest of the child. Section 150(3) In considering the person with whom the child shall be placed, the court shall give priority to a member of the child’s immediate family. Section 150(4) A parent or guardian who is ordered to exercise proper care and guardianship of a child under subsection (2)(b) shall, in addition to that order, be required to seek the assistance of a professional counsellor. Section 150(5) The order referred to in subsection (3) shall include a family assistance order made in accordance with section 135 (1) (e). Section 150(6) The Court may make interim orders on such terms as the Court may direct, including an order that the child be accommodated in a place of safety, pending final orders for the care and protection of a child. Section 150(7) An interim order under subsection (6) shall not remain in force for a period exceeding fourteen days: Provided that the Court shall have power to extend such orders from time to time and on such terms as the Court may direct. Section 150(8) Without prejudice to the generality of subsection (5), the Court may order that a child shall remain in the custody of a county government entity, an appointed authorised officer, a charitable children’s institution, a place of safety or a fit person, until the age of eighteen years, or such lesser age as the Court may direct. Section 150(9) The Court may from time to time, either of its own motion or on the application of any person, review, vary or revoke any order made under this section. - 151 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 151. Application of trusts for maintenance of children
If a child is removed from a person's care and that person is entitled under a trust to maintenance sums, the Court may order those trust payments to be paid to an authorised officer or other caregiver for the child's benefit; the Court must have regard to the trust terms; non‑compliance with such an order is an offence punishable by up to six months' imprisonment or a fine not exceeding two million shillings, and the Court may also order seizure of trust funds or property for the child's benefit.
Section 151. Application of trusts for maintenance of children Section 151(1) Where a child is, by an order of the Court made under this Part, removed from the care of any person, and that person is entitled under any trust to receive any sum of money in respect of the child’s maintenance, the Court may order the whole or any part of the sums payable under the trust to be paid to an authorised officer or to any other person or facility entrusted with the care and control of the child, to be applied for his or her benefit in such manner as the Court may direct. Section 151(2) In making the order referred to in subsection (1), the Court shall have regard to the terms of the trust. Section 151(3) Any person who fails to comply with an order of the Court made under subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding two million shillings, or to both. Section 151(4) In addition to the penal sanctions prescribed in subsection (3), the Court may order the seizure and surrender to the Court or to any specified person of all funds or property held in trust for the child, and direct the manner in which such fund or property may be applied for the benefit of the child. - 152 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 152. Penalty for cruelty to and neglect of children
Section 152 describes acts (assault, ill-treatment, abandonment, exposure, or acts/omissions causing a child to need care) and allows the Court to order criminal proceedings if the conduct is serious or aggravated.
Section 152. Penalty for cruelty to and neglect of children Section 152(1)(a) willfully assaults, ill-treats, abandons, or exposes, in any manner likely to cause the child unnecessary suffering or injury to health, including injury or loss of sight, hearing, limb or organ of the body, or any mental illness; or Section 152(1)(b) by any act or omission, knowingly or willfully causes that child to become, or contributes to his becoming, in need of care and protection, Section 152(2) If the Court is of the opinion that the acts or omissions specified in subsection (1) are of a serious or aggravated nature, the Court may order that the person be charged and dealt with in criminal proceedings under the Penal Code ( Cap. 63 ) or the Prevention of Torture Act (Cap. 88). Section 152(3) For the purposes of this section, a person having parental responsibility, custody, charge or care of a child shall be deemed to have neglected such child in a manner likely to cause injury to his health if the person concerned has failed to provide adequate food, clothing, education, immunisation, shelter or medical care. Section 152(4) The Court before which an application is made for any orders relating to a child in need of care and protection has jurisdiction to entertain criminal proceedings relating to a charge against any person in respect of an offence committed under this section. Section 152(5)(a) the suffering or actual bodily harm inflicted on a child was substantially contributed to by a person other than the accused; or Section 152(5)(b) the child died as a result of causes other than the acts of the accused specified in subsection (1). - 153 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 153. Care order and grounds thereof
The Court must entrust a child under a care order to a person or institution, prioritising the child’s religious faith and special needs where practicable; the Court must direct provision of records, may make orders in the child's absence with consent, and aggrieved persons may appeal.
Section 153. Care order and grounds thereof Section 153(1) In this section "care order" means an order entrusting the care, control and custody of the child to a person other than the parent, guardian or custodian of the child, or an institution appointed by the Court. Section 153(2)(a) all possible alternative methods for assisting the child have been unsuccessful, and that it is in the best interests of the child to make the order; Section 153(2)(b) the care given, or which is likely to be given, to the child if the order were not made, such care not being of the nature that is reasonably expected of a parent; or Section 153(2)(b)(i) the care given, or which is likely to be given, to the child if the order were not made, such care not being of the nature that is reasonably expected of a parent; or Section 153(2)(b)(ii) the child being beyond the control of his or her parent, guardian or other person who has parental responsibility in respect of the child; Section 153(2)(c) the danger to which the child is exposed is so severe as to require his immediate removal from the place where he or she is for the time being resident. Section 153(3)(a) the enforcement of the order by any person; or Section 153(3)(b) the conduct of the child or any person named in the order. Section 153(4) In making the care order, the Court shall, as far as is reasonably practicable, entrust the child to the care of a person who professes, or to an institution founded on, the child’s religious faith. Section 153(5) Where a child has a disability, the Court shall, as far as is reasonably practicable, entrust the care of the child to a person or institution that is suitably designed and equipped to cater for the special needs of the child. Section 153(6) Every care order made under this section shall be in writing, and shall disclose the child’s age and religious faith, and such order may be made in the child’s absence with the consent of the person or institution into whose care the child has been entrusted. Section 153(7) A person who is aggrieved by a care order may appeal to the Court. Section 153(8) The Court by which a care order is given shall direct the applicant to deliver to the person or institution entrusted with the care of the child a record in the prescribed form containing such information regarding the child concerned as the Court may deem necessary for the effective discharge of the order. Section 153(9) A care order made under this section shall commit the child to whom it relates to the care of the person or institution named in the order, and the order shall remain in force for one year or for such shorter period as the Court may direct. Section 153(10)(a) make such further orders and give such directions as may require the Secretary or his or her representative to supervise the mode of compliance with the care orders; and Section 153(10)(b) give such directions to the Secretary, Children Officer or his representative, as the Court may consider necessary, to facilitate the enforcement of the care order. Section 153(11)(a) monitor and supervise the standard of care provided to the child by the person or institution to whom or to which the child is committed under the care order; and Section 153(11)(b) periodically assess the conditions under which the child is accommodated pursuant to the care order: - 154 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 154. Access to children in care
The Court controls and may permit or restrict access to a child in care; it must refuse contact deemed detrimental to the child and determines frequency and duration when making access orders.
Section 154. Access to children in care Section 154(1)(a) consider any prior arrangements made by the Secretary for allowing any person access to the child during the period within which the care order remains in force; Section 154(1)(b) grant leave to any person to make submissions in the proceedings to the arrangements referred to in paragraph (a); or Section 154(1)(c) give such directions as the Court considers appropriate for reasonable access to the child. Section 154(2)(a) the child’s parent or guardian; Section 154(2)(b) any person who has parental responsibility in respect of the child; Section 154(2)(c) the relatives of the child; or Section 154(2)(d) such other person as the Court may direct. Section 154(3) The Court shall not make an order under this section authorizing any person to have contact with the child if the Court is of the view that such contact is detrimental to, and not in the best interest of, the child. Section 154(4) Where the Court makes an access order under this section, the Court shall determine the frequency and duration of access to the child subject, however, to such conditions as the Court may consider appropriate. Section 154(5) The Court may, on the application of the child, the Secretary or other authorised officer, make an order directing that any person named in the order shall not have access to, or contact with, the child to whom the order relates. Section 154(6) A Court making a contact order under this section has power to vary, suspend or discharge the order, or revive the order after it has been discharged, on such terms as the court shall deem fit. Section 154(7) An access order made under this section shall not remain in force in relation to a child who has attained the age of eighteen years or after the date of discharge of a care order. - 155 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 155. Power to make interim care order
A Court may make an interim care order either of its own motion or on application by any person, on any of the grounds in section 153(2); the Court may, for good cause, extend the interim order once for up to a further two months.
Section 155. Power to make interim care order Section 155(1) A Court may, either of its own motion or on application by any person, make an interim care order on any of the grounds specified in section 153 (2). Section 155(2)(a) the substantive application for a care order is adjourned; or Section 155(2)(b) there is in force a Court order for the assessment of the child in proceedings under section 137 pending the final care order. Section 155(3) An interim care order made under subsection (1) shall not remain in force for a period exceeding two months: Provided that the Court may, for good cause, extend the order once for a further period not exceeding two months. - 156 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 156. Discharge of care order
Describes the ways a care order may be discharged, lists persons related to applications or interests in discharge, and allows an order to include a supervision order in substitution for a care or interim care order.
Section 156. Discharge of care order Section 156(1)(a) by the making of an adoption order in respect of the child; Section 156(1)(b) in any case where the care order was not made in respect of the child by reason of the child having been found guilty of a criminal offence under Part XV; or Section 156(1)(c) by the making of a residence order in respect of the child Section 156(2)(a) the child; Section 156(2)(b) the Secretary; Section 156(2)(c) the parents or guardian of the child; Section 156(2)(d) any other person who has parental responsibility over the child; or Section 156(2)(e) a person acting on behalf of and in the best interest of child. Section 156(3) An order made under this section may include a supervision order made in substitution of a care order or interim care order. - 157 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 157. Care on committal to a rehabilitation school, etc.
Section 157 requires police officers to escort children committed to rehabilitation schools within twenty-four hours; the Secretary must facilitate the escort and placement; the school must submit a report to the Court within seven days; and the Court must record the committal. If not escorted within twenty-four hours the child shall be held in a child protection unit.
Section 157. Care on committal to a rehabilitation school, etc. Section 157(1)(a) contain a declaration as to the age and religion of the child; Section 157(1)(b) specify the rehabilitation school to which the child is to be sent; Section 157(1)(c) disclose the identity or administrative status of the person by whom the child is proposed to be escorted to the school; Section 157(1)(d) specify any special needs, health care or other special attention required by the child; Section 157(1)(e) set out any directions as to access arrangements for the child by his parent, guardian or relative; and Section 157(1)(f) specify details of any contribution order made against the parent or guardian of the child, and the dates on which accounts shall be supplied to them. Section 157(2) A child committed to a rehabilitation school shall be escorted by a police officer for placement in the school within twenty-four hours of his or her committal. Section 157(3) If the child is not escorted to the rehabilitation school within the period specified in subsection (2), the child shall be held in a child protection unit in accordance with this Act. Section 157(4) Where a child is committed to a rehabilitation school in accordance with this Act, the Secretary shall take all necessary steps to facilitate the escort by a police officer and placement of the child into the school in accordance with the committal warrant issued under this Act. Section 157(5) Upon committal of a child to a rehabilitation school under this section, the school shall prepare and submit to the Court a report confirming the committal within seven days, and the Court shall record the fact of such committal. - 158 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 158. Transmission of committal order
When the Court makes a care order for a child committed to a rehabilitation school, the Court must send the order and a prescribed record about the child to the school's manager.
Section 158. Transmission of committal order Section The Court making a care order under this Part in relation to a child committed to a rehabilitation school shall direct that the order be delivered to the manager of the rehabilitation school together with a record in the prescribed form of such information regarding the child as the Court may specify. - 159 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 159. Escort of a child to a rehabilitation school
The Court may summon a person to produce a child if an authorised escort cannot obtain custody; failure to comply or to attend without reasonable cause is an offence punishable by up to one year imprisonment or a fine (KSh 100,000 or KSh 50,000 depending on the subsection), or both.
Section 159. Escort of a child to a rehabilitation school Section 159(1) Where a person authorised to escort a child to a rehabilitation school is unable to find or obtain custody of the child, the Court may, if satisfied by information on oath that a person named in the information is in a position to produce the child, issue a summon requiring the specified person to attend at the Court on an appointed date and produce the child. Section 159(2) If the person summoned under subsection (1) fails to comply with the directions of the Court, the person commits an offence and is liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding one hundred thousand shillings, or to both. Section 159(3) If the person, without reasonable cause fails to attend court in obedience to an order given under this section, he or she commits an offence and is liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding fifty thousand shillings, or to both. Section 159(4) The penal sanctions prescribed in subsection (3) are in addition to, and not in substitution for, any other liability or sanctions to which the person may be subject under this Act or any other written law. - 160 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 160. Harbouring or concealing a child
If a child who has been placed under care in a rehabilitation school is harboured or concealed after the time fixed for the child to enter the rehabilitation school, any person commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding one hundred thousand shillings, or to both.
Section 160. Harbouring or concealing a child Section Where a child has been placed under care in a rehabilitation school, any person who harbours or conceals the child after the time fixed for the child to enter the rehabilitation school, commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding one hundred thousand shillings, or to both. - 161 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 161. Escape from institutions, etc.
If a child escapes from a person or institution to whose care the child was entrusted, the child may be apprehended without warrant and brought before a Children’s Court, which may make various orders (return, alternative placement, rehabilitation school, orders under section 150, counselling); the court must act in the child’s best interests and must consider the child’s views before making an order.
Section 161. Escape from institutions, etc. Section 161(1) A child who escapes from a fit person, charitable children’s institution to whose care the child has been entrusted under this Act, or from any person or institution with whom the child has been placed by a charitable children’s institution, or under any regulations made under this Act, may be apprehended without warrant and be brought before a Children’s Court having jurisdiction in the place where the child was resident immediately before the child escaped. Section 161(2)(a) order that the child be returned to where the child escaped from; Section 161(2)(b) by order, place the child under the care of some other person or charitable children’s institution; Section 161(2)(c) order that the child be sent to a rehabilitation school; Section 161(2)(d) make any order which a Court may make under section 150 ; or Section 161(2)(e) make an order requiring the child to undergo professional counselling. Section 161(3)(a) the circumstances under which the child escaped; and Section 161(3)(b) the conditions under which the child was accommodated. Section 161(4) Any order made under subsection (2) shall be required to be made in the best interest of the child. Section 161(5) The court shall consider the views of the child before making an order under this section. - 162 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 162. Duty of Charitable children’s institutions and County Public Entities
Charitable children’s institutions and County Public Entities must report certain occurrences to the nearest police station within 24 hours and must lodge a written notice of a child’s escape with the Court within one month; failure by managers or officers to comply is an offence punishable by a fine not exceeding one million shillings.
Section 162. Duty of Charitable children’s institutions and County Public Entities Section 162(1)(a) immediately report to the nearest police station within twenty-four hours of such occurrence coming to his or her attention; Section 162(1)(b) lodge with the Court, a written notice of the child’s escape within a period not exceeding one month; Section 162(2) If any manager or person in charge of a children institution or other authorised officer fails to comply with subsection (1), he or she commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings. - 163 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 163. Escape from children’s remand home or rehabilitation school
A child who escapes from a remand home, rehabilitation school, hospital or similar place, or while being escorted to or from such a place, may be apprehended without a warrant and dealt with under section 157; if a child restored to a rehabilitation school after escape, the child’s committal period is to be increased by the time the child was at large and absent from the school.
Section 163. Escape from children’s remand home or rehabilitation school Section 163(1) Any child who escapes from a children’s remand home or while being escorted thereto or therefrom, may be apprehended without warrant and dealt with in accordance with section 157 . Section 163(2)(a) escapes from such school or from any hospital, home or institution in which the child is receiving medical or other treatment, or while being conveyed to or from any such place; or Section 163(2)(b) being absent from such school on leave of absence or on licence, runs away from the person in whose charge the child has been placed, or fails to return to the school on the expiration of his or her leave, or on the revocation of his or her licence, Section 163(3) Where a child is restored to a rehabilitation school under subsection (2), the period of his or her committal shall be increased, over and above any increase ordered by Court, by a period equal to the period during which he or she was at large and absent from the school. - 164 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 164. Aiding escape, etc.
Aiding escape: to run away from a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with whom or with which the child has been placed
Section 164. Aiding escape, etc. Section to run away from a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with whom or with which the child has been placed by a charitable children’s institution, children remand home or a rehabilitation institution or an approved authorised officer under or by virtue of this Act or any regulations made under the Act; - 165 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 165. Production of escaped child
A Children’s Court may issue a summons requiring a person named in the information to attend court and produce a child.
Section 165. Production of escaped child Section 165(1) If a Children’s Court is satisfied by information on oath that there are reasonable grounds for believing that a child has escaped or done any of the things specified in section 163 , and that some other person named in the information is in a position to produce the child, the Court may issue summons requiring that other person to attend at the Court and produce the child. Section 165(2) If the person summoned under subsection (1) fails to comply with the directions of the Court given under this section, the person commits an offence, and shall, on conviction, be liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding two hundred thousand shillings, or to both. Section 165(3) The penal sanctions prescribed in subsection (2) shall be in addition to any other penalty or liability to which the person may be subjected under this Act or any other written law. - 166 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 166. Presumption and determination of age
When a person under eighteen appears to a court in proceedings, the Court must inquire into their age and may take evidence (including medical evidence) to determine it.
Section 166. Presumption and determination of age Section 166(1) Where a person appears before any Court for the purpose of giving evidence, and it appears to the Court that the accused, the victim or complainant to whom the proceeding relates is under eighteen years of age, the Court shall inquire as to the age of the accused, victim or complainant, and shall take such evidence, including medical evidence for the purpose of determining his or her age. Section 166(2) The age presumed or declared by the Court under subsection (1) to be the age of any person appearing before it shall, for purposes of this Act, be deemed to be the person’s age unless the contrary proof is adduced before Court. Section 166(3) A certificate duly completed and signed by a medical practitioner as to the age of a person under eighteen years of age shall be produced and admitted in evidence in any proceeding before the Court, unless the Court otherwise directs. - 167 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 167. Contribution order not to be made in certain cases
If a court places a child in a rehabilitation school, the court must not order a parent or guardian to pay any money for the child's maintenance.
Section 167. Contribution order not to be made in certain cases Section Where a Court makes an order placing a child under the care of a rehabilitation school, the court shall not make a contribution order requiring a parent or guardian of the child to contribute any sums of money towards the maintenance of the child. - 168 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 168. Inter-country reciprocity.
The Cabinet Secretary may enter into agreements with other countries to allow children ordered by a Kenyan court to be received, placed, or returned under that country's law; children subject to such orders may be removed by warrant signed by the Cabinet Secretary into countries with such agreements and placed there; foreign court orders of partner countries received in Kenya have the same effect as Kenyan court orders.
Section 168. Inter-country reciprocity. Section 168(1) The Cabinet Secretary may enter into an agreement with the government of any other country or territory on such terms and conditions as the Cabinet Secretary may think fit, under which a child who has been ordered by a Court under the provisions of this Act to be sent to a rehabilitation school or other institution, or committed to the care of a fit person, may be received into that country or territory and placed in a rehabilitation school or other institution approved under the relevant legislation of that country or territory, or received into the care of a fit person or returned to his parent or guardian. Section 168(2) Any child who has been ordered under the provisions of this Act to be placed in a rehabilitation school or any other institution, or committed to the care of any person, may, while still subject to such order, by warrant signed by the Cabinet Secretary, be removed from the custody of such an institution or person into any other country or territory with which an agreement has been concluded under subsection (1), and placed in a rehabilitation school or other institution or placed in the care of a fit person, or of his parent or guardian, in accordance with the law for the time being in force in the country or territory authorising such placement, until the expiration of the order, or until such child is sooner released according to law. Section 168(3) An order of a Court of a country or territory with which an agreement has been entered into in accordance with the provisions of subsection (2) which could lawfully have been made by a Court in Kenya if the person had been within its jurisdiction, shall upon the person being received in Kenya have the same effect and be enforceable as if the order had been made by a Court in Kenya. - 169 Verify source ↗
CHILDREN IN NEED OF CARE AND PROTECTION - 169. Bonds
The provisions of the Criminal Procedure Code relating to bonds for good behaviour, including provisions about their enforcement, apply to bonds entered under this Part.
Section 169. Bonds Section The provisions of the Criminal Procedure Code with respect to bonds for good behaviour, including the provisions as to their enforcement, shall apply to bonds entered into under this Part.
Part XIII
FOSTER CARE PLACEMENT
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FOSTER CARE PLACEMENT - 170. Objectives of foster care placement
Section 170 lists objectives for foster care placement (protect and nurture children; promote long-term parental care aiming for family reunification; accommodate children in safe alternative family relationships for long periods; provide social and economic stability for children without stable family support; promote family relationships reflecting Kenya's cultural, ethnic and community diversity) and states that when a child needs care and protection (including where the Secretary intervenes or a Court orders), the child shall initially be placed in family-based alternative care.
Section 170. Objectives of foster care placement Section 170(1)(a) to protect and nurture children in need of care and protection by providing a safe, healthy environment with wholesome support; Section 170(1)(b) to promote long term parental care, with the goal of family reunification in the first instance; Section 170(1)(c) accommodating children in alternative, safe and nurturing family relationships for long periods of time; Section 170(1)(d) to provide social and economic stability in the life of a child or children who may be denied or unable to have a stable family support system; and Section 170(1)(e) to promote family relationships in the context of Kenya’s cultural, ethnic and community diversity. Section 170(2) In any case where a child is in need of care and protection, either with the intervention of the Secretary or under an order of the Court, the child shall, in the first instance, be placed in family based alternative care. - 171 Verify source ↗
FOSTER CARE PLACEMENT - 171. Restrictions on periods of foster care
Foster-care arrangements must start by application to the Secretary and are limited to an initial period not exceeding twelve months, extendable from time to time up to three years in the aggregate; no child may be placed under foster care for more than three years without a court order obtained on application specifying the grounds.
Section 171. Restrictions on periods of foster care Section 171(1)(a) in situations of emergency; Section 171(1)(a)(i) in situations of emergency; Section 171(1)(a)(ii) where the child is found abandoned; or Section 171(1)(a)(iii) where the child is in need of care and protection; or Section 171(1)(b) it has not been possible to facilitate the adoption of the child or to place the child in family-based alternative care within a period of three years where— Section 171(1)(b)(i) it has not been possible to facilitate the adoption of the child or to place the child in family-based alternative care within a period of three years where— Section 171(1)(b)(ii) it is shown to the satisfaction of the Court on evidence that circumstances exist to justify extension of time pending adoption or other arrangements years. Section 171(2) Any arrangements for the foster care of a child shall, in the first instance, be on application to the Secretary, and shall be for a period not exceeding twelve months, but liable to extension from time to time for a period not exceeding three years in the aggregate. Section 171(3) Without prejudice to the generality of subsection (1), no child shall be placed under foster care for a period exceeding three years without an order of the court first had and obtained on application in the prescribed form specifying the grounds on which a longer period of foster care is necessary. Section 171(4)(a) the need to ensure stability of the child’s life; and Section 171(4)(b) the best interests of the child. - 172 Verify source ↗
FOSTER CARE PLACEMENT - 172. Conditions for foster care placement
Sets conditions for foster care placement: placement may occur by the Secretary’s direct intervention or by Court order; the Secretary may place children from certain institutions with foster parents; a child subject to a care order for a criminal offence cannot be placed without the Court's leave; foster parents must maintain the child as if they were the parent.
Section 172. Conditions for foster care placement Section 172(1) For the purposes of this Part, a child may be placed under foster care either on the direct intervention of the Secretary or pursuant to an order of the Court, and such placement shall, in the first instance, be home based. Section 172(2) Where a child has, by virtue of a care order, been committed to a rehabilitation school or to a charitable children’s institution, the Secretary, in consultation with the manager or other authorised officer of the institution, may place the child with a foster parent for such period as the Secretary may from time to time authorise. Section 172(3) Without prejudice to the generality of subsection (2), a child in relation to whom a care order has been made by reason of having been found guilty of a criminal offence, shall not be placed with a foster parent without leave of the Court. Section 172(4) A foster parent in whose care a child is committed shall, while the child remains in his or her care, have the same responsibilities in respect of the child’s maintenance as if he or she were the parent of the child. Section 172(5)(a) to supervise and assess the condition of the child from time to time; and Section 172(5)(b) to take such steps as shall be necessary to safeguard the welfare of the child. Section 172(6)(a) on discharge of the care order; Section 172(6)(b) on expiry of the period specified in the order of the Court; Section 172(6)(c) on the child attaining the age of eighteen years; or Section 172(6)(d) on the death of the foster parent. - 173 Verify source ↗
FOSTER CARE PLACEMENT - 173. Application for foster care
Sets application and procedural rules for foster care: prospective foster parents must apply in the prescribed form; the Secretary must conduct due diligence and prepare a report; parents/guardians and certain institution managers have the right to make representations; emergency carers may provide temporary foster care up to three months but must give prescribed notice to the local Officer Commanding Station, who must notify the Secretary within 24 hours.
Section 173. Application for foster care Section 173(1) Any person wishing to foster a child shall make an application to the Secretary in the prescribed form. Section 173(2) On receipt of the application referred to in subsection (1), the Secretary shall conduct due diligence, including ascertaining the criminal liability of the prospective foster parent, and prepare a report containing information relating to the matters specified in Rules made under this Act. Section 173(3) The parent or guardian of the child in respect of whom the application is made, and the manager of the charitable children institution at which the child for the time being is accommodated, if that be the case, shall have the right to make representations to the Secretary on any matter contained in the report referred to in subsection (2). Section 173(4) Without prejudice to the generality of subsection (1), any person who voluntarily assumes responsibility for the care and protection of a child in a situation of emergency may exercise temporary foster care over the child for a period not exceeding three months pending reunification of the child with his or her parent or guardian or placement in foster care under this Act. Section 173(5) No person shall exercise temporary foster care under subsection (4) unless such person gives notice in the prescribed form to the Officer Commanding Station in the local limits of the jurisdiction in which the child is accommodated. Section 173(6) The Officer Commanding Station shall notify the Secretary within twenty-four hours of receiving a notice under subsection (5). Section 173(7) A foster parent in whose care a child is committed shall, while the child remains in his or her care, have the same responsibilities in respect of the maintenance of the child as if such foster parent were the parent or guardian of the child. - 174 Verify source ↗
FOSTER CARE PLACEMENT - 174. Persons qualified to foster children
Specifies who may qualify as foster parents (spouses and single persons aged 25–65), bars appointment of convicted or non-resident persons, restricts removal of a child from Kenya without Court leave, and allows exceptions including for applicants to be foster parents of intersex children.
Section 174. Persons qualified to foster children Section 174(1)(a) spouses of a marriage where one or both the spouses are between twenty-five and sixty-five years of age; Section 174(1)(b) a single woman of between twenty-five and sixty-five years of age; or Section 174(1)(c) a single man of between twenty-five and sixty-five years of age. Section 174(2) A single man shall not qualify to foster a female child under this Part unless he is a father to a female child, and a single woman shall not qualify to foster a male child under this Part unless she is a mother to a male child. Section 174(3) A person who is convicted by a Court of competent jurisdiction for any of the offences in the Third Schedule or similar offences shall not be appointed to be a foster parent. Section 174(4) Subsection (2) shall not apply to a person who applies be a foster parent to an intersex child. Section 174(5) No person shall be appointed to be a foster parent unless the person is resident in the Republic of Kenya and has been resident for a period of not less than twelve months. Section 174(6) A foster parent shall not remove a child from Kenya without obtaining the leave of the Court on application in the prescribed form, and such leave shall only be granted in exceptional circumstances at the discretion of the Court, having regard to the best interest of the child. Section 174(7) Where leave is granted under this section, the Court may impose such conditions or restrictions as it considers appropriate, having regard to the best interest of the child. - 175 Verify source ↗
FOSTER CARE PLACEMENT - 175. Conditions for foster care
The Secretary must not authorize a foster care placement of a child when the application was not made following the procedures in rules under this Act.
Section 175. Conditions for foster care Section The Secretary shall not authorize foster care placement of a child if it is shown to the satisfaction of the Secretary that the application has not been done following the procedure set out in rules made under this Act. - 176 Verify source ↗
FOSTER CARE PLACEMENT - 176. Limitation on the number of children placed under foster care in a household
Limitation on the number of children placed under foster care in a household
Section 176. Limitation on the number of children placed under foster care in a household Section the children are siblings or blood relatives; or - 177 Verify source ↗
FOSTER CARE PLACEMENT - 177. Records of foster care placements
Persons must not keep a child with unidentified parents/custodians for foster purposes unless they first notify the Secretary; registered charitable children institutions working with the Secretary must keep a register of prescribed particulars; the Secretary must keep the Foster Care Register of foster care placements as specified in regulations.
Section 177. Records of foster care placements Section 177(1) A person shall not, for the purposes of fostering a child, retain in his care and custody a child whose parent, custodian or guardian cannot be readily identified, without first notifying the Secretary. Section 177(2) Every registered Charitable Children Institution undertaking foster care placement in conjunction with the Secretary shall maintain a register containing the particulars prescribed in regulations. Section 177(3) The Secretary shall keep and maintain a register to be known as the Foster Care Register containing the particulars of all foster care placements specified in regulations. - 178 Verify source ↗
FOSTER CARE PLACEMENT - 178. Agreement for maintenance of foster child
The Secretary may direct that a maintenance agreement be made between the foster parent and the parent or guardian of a child placed in foster care, and any such maintenance agreement is legally binding on the parties.
Section 178. Agreement for maintenance of foster child Section 178(1) The Secretary may, on the application of a foster parent or the parent or guardian of a child, direct that an agreement be made between the foster parent and the parent or guardian of a child placed in foster care stipulating the maintenance payable by such parent or guardian for the child’s care. Section 178(2) Any maintenance agreement made in respect of a child under foster care in accordance with this section shall be legally binding on the parties to the agreement. - 179 Verify source ↗
FOSTER CARE PLACEMENT - 179. Termination of foster care
The Secretary may direct in writing the termination of a foster care placement if, in the Secretary’s opinion, the termination is in the best interest of the child.
Section 179. Termination of foster care Section 179(1) Any foster care placement made under this Part may be terminated on the written direction of the Secretary if the termination is, in the Secretary’s opinion, in the best interest of the child. Section 179(2)(a) where the biological parent reclaims care of the child, the bond that exists between the child and the child's biological parent; Section 179(2)(b) the child and the foster parent; and Section 179(2)(b)(i) the child and the foster parent; and Section 179(2)(b)(ii) the child and the family of the foster parent; and Section 179(2)(c) returning the child to the biological parent; Section 179(2)(c)(i) returning the child to the biological parent; Section 179(2)(c)(ii) allowing the child to remain in foster care with the foster parent; Section 179(2)(c)(iii) placing the child in any other alternative family care; or Section 179(2)(c)(iv) adoption of the child. Section 179(3) Without prejudice to the generality of subsection (2), the decision to reunite a child with his or her biological parents on termination of foster care placement shall be based on the principle of the best interest of the child. - 180 Verify source ↗
FOSTER CARE PLACEMENT - 180. Penalty for contravening provisions of this Part
A person who, without reasonable cause, contravenes any provision of this Part commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.
Section 180. Penalty for contravening provisions of this Part Section A person who, without reasonable cause, contravenes any of the provisions of this Part commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both. - 181 Verify source ↗
FOSTER CARE PLACEMENT - 181. Regulations
The Cabinet Secretary must make regulations to better carry out the provisions of this Part.
Section 181. Regulations Section The Cabinet Secretary shall make regulations for the better carrying out of the provisions of this Part. - 182 Verify source ↗
FOSTER CARE PLACEMENT - 182. Rules
The Chief Justice may make court rules of procedure and practice in matters relating to foster care placement.
Section 182. Rules Section The Chief Justice may make court rules of procedure and practice in matters relating to foster care placement.
Part XIV
ADOPTION
- 183 Verify source ↗
ADOPTION - 183. Power to make adoption orders
The High Court may, subject to the Act and on an application in the prescribed form, make an adoption order authorising an applicant to adopt a child.
Section 183. Power to make adoption orders Section 183(1) Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as "adoption order", authorising an applicant to adopt a child. Section 183(2) All proceedings under this Part shall be heard and determined in chambers, and the identity of the child and the applicants shall be kept confidential. Section 183(3) In this Act, adoption means local, kinship and foreign adoption. Section 183(4)(a) "kinship adoption" has the meaning assigned to it in section 2 ; Section 183(4)(b) the child is resident in Kenya; and Section 183(4)(b)(i) the child is resident in Kenya; and Section 183(4)(b)(ii) the adopting parent or parents are Kenyan nationals resident in Kenya; and Section 183(4)(c) the adopting parent or parents are Kenyan nationals with dual citizenship; Section 183(4)(c)(i) the adopting parent or parents are Kenyan nationals with dual citizenship; Section 183(4)(c)(ii) the adopting parent or parents are foreign nationals whether or not resident in Kenya; Section 183(4)(c)(iii) the adopting parent or parents are not Kenyan nationals but are biologically related to the child; or Section 183(4)(c)(iv) the adopting parent or parents were once Kenyan nationals but have lost their nationality by operation of the law of the host country to which the prospective parent or parents have a nationality. - 184 Verify source ↗
ADOPTION - 184. Pre-requisites for Adoption
Adoption prerequisites: council declaration and child age requirement; persons must not entrust a child to unqualified persons before an adoption order; the Secretary must monitor and report; contraventions of subsections (1) or (2) are offences punishable by up to three years' imprisonment or a fine up to one million shillings, or both.
Section 184. Pre-requisites for Adoption Section 184(1)(a) the Council, in accordance with the rules, has declared the child free for adoption; and Section 184(1)(b) the child has attained the age of six weeks. Section 184(2) A person, including a parent, guardian or adoption society, shall not, prior to the making of an adoption order, entrust a child to the care, possession or control of any person not qualified to adopt a child in accordance with this Act. Section 184(3)(a) in the case of kinship adoption; Section 184(3)(b) Where the applicant is a foster parent seeking to adopt a fostered child under the applicant’s care. Section 184(4) The Secretary shall monitor and submit reports to the courts on the wellbeing of a child who is subject to adoption proceedings. Section 184(5) Any person who contravenes subsections (1) or (2) of this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million shillings, or to both. - 185 Verify source ↗
ADOPTION - 185. Children who may be adopted
Children resident in Kenya may be adopted; applicants must have had continuous care and control of the child in Kenya for three consecutive months before filing and must file an application supported by a report from a duly registered adoption society, and that report must contain the society’s findings and recommendations.
Section 185. Children who may be adopted Section 185(1) Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was born in Kenya. Section 185(2)(a) the child concerned has been in the continuous care and control of the applicant within Kenya for a period of three consecutive months preceding the filing of the application; and Section 185(2)(b) the application for an adoption order is supported by a report made by a duly registered adoption society recommending that an adoption order be made. Section 185(3) The report referred to in subsection (2)(b) shall contain the society’s findings and recommendations in respect of the child and the applicant or applicants, as the case may be. Section 185(4)(a) a child who is an orphan and has no guardian or caregiver able and willing to take care of the child; Section 185(4)(b) a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year; Section 185(4)(c) children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part. - 186 Verify source ↗
ADOPTION - 186. Who may apply to adopt a child
Sets who may apply to adopt: a sole applicant or two spouses jointly, age and relationship requirements and restrictions, who must give consent, and the Court's discretion.
Section 186. Who may apply to adopt a child Section 186(1)(a) a sole applicant; or Section 186(1)(b) two spouses jointly. Section 186(2)(a) the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and Section 186(2)(b) the applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child. Section 186(3) The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father or relative of the child. Section 186(4) The Court shall not make an adoption order in favour of a sole male applicant, unless the applicant is a blood relative of the child. Section 186(5) The Court shall not make an adoption order in favour of the following persons unless the Court is satisfied on reasons to be stated on the record that there are special circumstances that warrant the making of the adoption order an applicant or joint applicants who has, or both have, attained the age of sixty-five years. Section 186(6)(a) is of unsound mind within the meaning of the Mental Health Act ( Cap. 248 ); Section 186(6)(b) is incapable of exercising proper care and guardianship of a child; Section 186(6)(c) has been convicted by a Court of competent jurisdiction for any of the offences specified in the Third Schedule or similar offences; Section 186(6)(d) in the case of joint applicants, if the applicants are not married to each other; Section 186(6)(e) is a sole male applicant except where the applicant is a biological relative of the child; or Section 186(6)(f) is a foreign applicant except where the applicant is a biological relative of the child. Section 186(7) Notwithstanding anything contained in this section the Court may at its sole discretion decline to make an adoption order in favour of any person or persons if the Court is of the view that it is not in the best interest of the child to make the order. Section 186(8)(a) a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child; Section 186(8)(b) on the application of one of the spouses, the consent of the other spouse; and Section 186(8)(c) in the case of a child who has attained the age of ten years, the child himself or herself. Section 186(9) If the child referred to in subsection (8)(c) has a disability which restricts or impairs the child’s ability to independently give his or her consent, the child shall be accorded such assistance, including the assistance of an intermediary, to facilitate his or her written consent. - 187 Verify source ↗
ADOPTION - 187. Power to dispense with consent
The Court may dispense with required consents for an adoption order in specified circumstances and may treat certain consents as unreasonably withheld.
Section 187. Power to dispense with consent Section 187(1)(a) in the case of the parent or guardian of the child, the parent or guardian has abandoned, neglected, persistently failed to maintain or persistently ill-treated the child; Section 187(1)(b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the child, that person has persistently neglected or refused to make contribution in accordance with the order; or Section 187(1)(c) in any other case, except in respect of the consents required under section 186 (8)(c) and (9), the person whose consent is required cannot be found or is incapable of giving his or her consent, or that his or her consent has been unreasonably withheld. Section 187(2)(a) abandonment shall be presumed in any case where the child appears to have been abandoned at birth, or if the person or, where the institution having care and possession of the child, that institution has lost all contact with a parent or guardian of the child for a period exceeding one year; and Section 187(2)(b) persistent failure to maintain the child may be presumed where, despite demands made, no parent or guardian has contributed to the maintenance of the child for a cumulative period of one year. Section 187(3) The Court may dispense with the consent of the spouse of the applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving consent, or that the spouses have separated or divorced and are living apart, and that such separation is likely to be permanent. Section 187(4) The consent of any person to the making of an adoption order in pursuance of an application under this Part may be given, either unconditionally or subject to conditions with respect to the religious persuasion in which the child is to be brought up, without knowing the identity of the applicant for the order, and where the consent given by any person is subsequently withdrawn on the grounds only that he or she does not know the identity of the applicant, the consent shall be deemed as being unreasonably withheld. Section 187(5) In considering whether or not to dispense with the consent required under this section, the Court shall regard the interests of the child as paramount and, subject thereto, give priority to the interests of the parents, guardians or relatives of the child over those of the applicants. Section 187(6)(a) without leave of the Court; or Section 187(6)(b) with leave of the Court at any time after the filing of the application for an adoption order, but prior to the making of the order. Section 187(7)(a) attend Court at the adoption proceedings for the purpose of giving oral evidence in relation to his or her consent; or Section 187(7)(b) deliver to the Court a declaration made on oath and attested by a duly qualified legal practitioner, judicial officer or such other person as may be specified in regulations, confirming the deponents consent in that regard. Section 187(8)(a) the document is duly executed by the person making it; and Section 187(8)(b) the signature of the maker is duly attested and the document notarized and duly certified as a true copy of the original. Section 187(9)(a) the child was at least six weeks old on the date on which the document was executed; and Section 187(9)(b) the document is duly attested by any of the persons specified in subsection (7)(b). - 188 Verify source ↗
ADOPTION - 188. Appointment of guardianad litemfor purposes of adoption
When an adoption order is applied for, the Court must appoint a fit person as guardian ad litem for the child.
Section 188. Appointment of guardianad litemfor purposes of adoption Section 188(1) Where an application is made for an adoption order, the Court shall, either of its own motion or on application by any party to the proceedings, make an order appointing a fit person to be guardian ad litem of the child to whom the application relates. Section 188(2)(a) safeguard the interests of the child pending the determination of the adoption proceedings; Section 188(2)(b) investigate and report to the Court on the facts and circumstances relating to the adoption of the child; Section 188(2)(c) make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child; Section 188(2)(d) intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent prescribed by this Act; and Section 188(2)(e) undertake such other duties as the Court may from time to time direct, or as may be prescribed by the rules. Section 188(3) Where arrangements for the adoption of any child have been made by an adoption society, neither the society nor any member thereof shall be appointed guardian of the child in relation to the adoption. Section 188(4) The appointment of a guardian ad litem shall expire upon the making of a final order by the Court under this Part, unless the Court, having regard to the interests of the child, extends the period of the appointment. Section 188(5) Without prejudice to the generality of subsection (4), where an appeal is lodged against a final order of the Court made under this Part, the Court shall have power to extend the appointment of a guardian ad litem until the date of the determination of the appeal. - 189 Verify source ↗
ADOPTION - 189. Interim orders
The Court may make interim orders concerning custody, welfare and parental responsibility; persons who consented to an adoption must not remove the child from the applicant's care except with the Court's leave; the Court must make a wardship order and require a security bond when it makes an order under this section; failure to return a child as ordered is an offence with imprisonment up to three years or a fine up to two million shillings.
Section 189. Interim orders Section 189(1)(a) any person who has consented to the adoption shall not be entitled, except with leave of the Court, to remove the child from the care and control of the applicant; Section 189(1)(b) exceptional circumstances exist in relation to the health, welfare and safety of the child; Section 189(1)(b)(i) exceptional circumstances exist in relation to the health, welfare and safety of the child; Section 189(1)(b)(ii) the written consent of the parents or guardian of the child, if they are living or can be found, to the removal of the child from Kenya has been obtained; and Section 189(1)(b)(iii) a welfare report has been made by the parent or guardian of the child, if they are living or can be found. Section 189(2) Where a Court makes an order under this section, the Court shall make a wardship order in respect of the child, and shall cause the applicant to execute a security bond with sureties requiring that the child be returned to Kenya by the applicant within such period as may be specified by the Court, and give such directions as may be necessary to secure the return of the child to Kenya. Section 189(3) Any person who, without lawful justification, fails to return a child to Kenya within the period specified by an order issued under this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years, or to a fine not exceeding two million shillings, or to both. Section 189(4) The Court may, either of its own motion or on application by a parent or guardian of the infant, the Secretary, an adoption society or the appointed guardian ad litem , make such interim orders as appear just in respect to the legal custody, maintenance, access, education, residence, safety, or welfare of the child generally and parental responsibility in respect of the child, and may direct that such proceedings be taken for placing the child under the protection of the Court. Section 189(5) The requisite consents for the making of an adoption order shall be required for the purposes of making an interim order in the proceedings subject, however, to the power of the Court to dispense with such consent. Section 189(6) The Court shall not make an interim order in any case where the making of an adoption order is unlawful. Section 189(7) For the avoidance of doubt, an interim order shall not be construed as, or have the effect of, an adoption order made under this Act. - 190 Verify source ↗
ADOPTION - 190. Review of adoption
Sets criteria for reviewing an adoption and contemplates revoking an adoption order or arranging joint custody where specified conditions are met.
Section 190. Review of adoption Section 190(1)(a) the child in respect of whom an adoption order has been granted by a Court was lost or abducted; Section 190(1)(b) the biological parent reported to the Secretary and took all measures to trace, to find and to reunite with the child and were not successful; and Section 190(1)(c) it is in best interest of child to reunite with the child with their biological parent. Section 190(2)(a) issue an order to revoke the adoption order and give custody of the child to the biological parent; or Section 190(2)(b) review an existing order to give joint custody to a biological parent and an adoptive parent Section 190(3)(a) the child has been in the custody of the adoptive parents for more than five years; and Section 190(3)(b) the child expresses that he or she would wish to maintain a relationship with the adoptive parents. - 191 Verify source ↗
ADOPTION - 191. Inter-country adoptions
All efforts to trace the child’s parents and relatives and reunify with them have, despite State support, failed; and
Section 191. Inter-country adoptions Section all efforts to trace the child’s parents and relatives, and reunify with them have, despite State support, failed; and - 192 Verify source ↗
ADOPTION - 192. Adoption by non-resident Kenyans
Adoption by citizens of Kenya who are not ordinarily resident in Kenya.
Section 192. Adoption by non-resident Kenyans Section citizens of Kenya who are not ordinarily resident in Kenya; - 193 Verify source ↗
ADOPTION - 193. Kinship Adoption
Kinship adoption orders may only be made in favour of a relative of the child; the Cabinet Secretary may make regulations to give effect to this Part.
Section 193. Kinship Adoption Section 193(1) A kinship adoption order may only be made in favour of a relative of the child. Section 193(2) The Cabinet Secretary may make regulations to give effect to this Part. - 194 Verify source ↗
ADOPTION - 194. Powers of the Court in adoption proceedings
Lists factual conditions and steps relevant to making an adoption order and enumerates measures the Court may require of an adopter (such as provision for the child, supervision, removal restrictions, traditions, security and periodic reports for non-resident adopters).
Section 194. Powers of the Court in adoption proceedings Section 194(1)(a) every person whose consent is required under this Part, which consent has not been dispensed with, has consented to and understands the nature and effect of the adoption order for which the application is made; Section 194(1)(b) in the case of a parent, the parent understands that the effect of the adoption order is to permanently deprive him or her of his or her parental rights; Section 194(1)(c) if made, the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child; Section 194(1)(d) the applicant has not received or agreed to receive, and that no person had made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption; Section 194(1)(e) any person whose consent is dispensed with on the grounds of incapacity is still incapable of giving consent at the date of making the order; Section 194(1)(f) where the applicant is not a relative of the child, reasonable steps have been taken to inform the relatives of the child of the proposed adoption, and no relative who is capable of exercising care over the child has expressed willingness to do so; Section 194(1)(g) both the applicant and the child have been assessed and evaluated by a duly registered adoption society in Kenya in accordance with this Act and the society’s report delivered to the Court; and Section 194(1)(h) the Council has certified and declared the child free for adoption. Section 194(2)(a) requiring the adopter, by bond or otherwise, to make such provision for the child as, in the opinion of the Court, are just and expedient; Section 194(2)(b) directing that the child shall not be removed from the jurisdiction of the Court without leave of the Court for such period as the Court may specify; Section 194(2)(c) requiring the adopter to accept supervision by, and advice from, an adoption society specified by the Court for such period as the Court may direct; Section 194(2)(d) requiring the child to be brought up in accordance with a particular tradition conditional to which the consent was given; Section 194(2)(e) requiring the adopter to furnish such security by bond or otherwise as the Court may consider fit for the due performance of any condition that the Court may impose; or Section 194(2)(f) in a case where the adopter is not a resident or citizen of Kenya, requiring the adopter to avail such periodic reports from a Court of competent jurisdiction or state agency responsible for matters relating to adoption in the adopter’s country of residence for such period as the Court may specify. - 195 Verify source ↗
ADOPTION - 195. Power of the Court to appoint guardian
When making an adoption order, the Court may appoint a guardian for the child to take effect if the adopter(s) die or become incapacitated before the child turns eighteen; the Court may later revoke that appointment and appoint another guardian on application before the child turns eighteen.
Section 195. Power of the Court to appoint guardian Section 195(1) At the time of making an adoption order in a domestic or inter-country adoption, the Court may, either of its own motion or on application by the adopter or joint adopters, appoint a guardian of the child in the event that the adopter or, in the case of a joint application by spouses, as the case may be, the adopter or joint adopters die or become incapacitated before the child attains the age of eighteen years. Section 195(2) The Court may, at any time before the child attains the age of eighteen years, on the application of the adopter, or of the guardian appointed under subsection (1) or of the child, revoke such appointment and appoint any other person to be the guardian of the child. - 196 Verify source ↗
ADOPTION - 196. Adoption order in respect of children previously adopted
The Court may make adoption orders (including interim orders) for a child who has previously been adopted under this Act or any Commonwealth jurisdiction; adopters under the previous or last adoption order are deemed to be the child's parents for applications under subsection (1).
Section 196. Adoption order in respect of children previously adopted Section 196(1) The Court may make an adoption order or an interim adoption order in respect of a child who has previously been the subject of an adoption order under this Act or any other written law in any Commonwealth jurisdiction. Section 196(2) For the purposes of an application under subsection (1), the adopter or adopters under and by virtue of the previous or last adoption order made under this Act shall be deemed to be the parent or parents of the child. - 197 Verify source ↗
ADOPTION - 197. Parental responsibility when adoption is denied
If the Court declines to make an adoption order, the Court may make an order about parental responsibilities for the child.
Section 197. Parental responsibility when adoption is denied Section If the Court declines to make an adoption order, the Court may make such order in respect of parental responsibilities over the child as the Court may consider fit. - 198 Verify source ↗
ADOPTION - 198. Appeals
A person aggrieved by a court order about an adoption application or parental responsibility under this Part may appeal to the Court of Appeal.
Section 198. Appeals Section Any person aggrieved by an order of the Court relating to an application for an adoption order, or an order relating to parental responsibility over a child made under this Part, may appeal to the Court of Appeal in the same manner as if the application were a suit instituted under the Civil Procedure Act. - 199 Verify source ↗
ADOPTION - 199. Variation of orders
The Court may vary an adoption order on the adopter's application to correct particulars; the Court must direct the Registrar to cancel register entries if the order is quashed or overturned; the Registrar must update the Adopted Children Register when an order is varied.
Section 199. Variation of orders Section 199(1) The Court which makes an adoption order may, on the application of the adopter, vary the order to correct any defect in the particulars contained therein and direct that the varied order be lodged with the Registrar, who shall cause the Adopted Children Register to be rectified accordingly. Section 199(2)(a) by the insertion of the country of birth of the adopted person; or Section 199(2)(b) where the order does not specify a precise date as the date of birth of the adopted person, by the insertion of the date which appears to the Court to be the probable date on which the person was born, and the requirements of subsection (1) will apply with immediate effect. Section 199(3) Where an adoption order is quashed or an appeal against an adoption order is allowed, the Court making the order to quash shall direct the Registrar to cancel any entry in the Register of Births together with any entry in the Adopted Children Register effected in pursuance of the order. Section 199(4) A copy of or an extract from, an entry in any register, being an entry the making of which is cancelled under this section, shall be deemed to be an accurate copy or extract only if both the marking and the cancellation are omitted therefrom. - 200 Verify source ↗
ADOPTION - 200. Adopted Children Register
The Registrar must keep an Adopted Children Register and make court-directed entries; the Court must direct issuance of certified copies on payment of prescribed fees; the Registrar must keep a record linking birth entries to adopted-children entries.
Section 200. Adopted Children Register Section 200(1) The Registrar shall maintain an Adopted Children Register and shall make such entries as the court may direct. Section 200(2) A certified copy of an entry in the Adopted Children Register that is sealed or stamped with the seal of the Registrar shall be admitted as evidence of the adoption to which it relates. Section 200(3) A certified copy of an entry in the Adopted Children Register that contains an entry of a record of the date of the birth or the country of birth of an adopted child, shall be admitted as evidence of the date or country of birth as if the copy were a certified copy of an entry in the Register of Births. Section 200(4) The Court shall direct the Registrar to issue a certified copy of an entry in the Adopted Children Register on payment of such fee as the Registrar may prescribe. Section 200(5) The Registrar shall maintain a record that traces the connection between an entry in the Register of Births and an entry that corresponds in the Adopted Children Register. - 201 Verify source ↗
ADOPTION - 201. Registration of adoption orders
Adoption orders by the Court must direct the Registrar to enter the child in the Adopted Children Register in the prescribed form; if the child’s precise birth date is not proved the Court must determine a probable date which will be deemed the date of birth; where an adoption order relates to a child already linked to a birth register entry the Registrar must mark that birth entry "Adopted" or mark as "Re-adopted" if the child had been previously adopted under this Act.
Section 201. Registration of adoption orders Section 201(1) Every adoption order made by the Court shall contain a direction to the Registrar to make an entry in the Adopted Children Register in the prescribed form. Section 201(2) For the purposes of compliance with the requirements of subsection (1), if the precise date of the child’s birth is not proved to the satisfaction of the Court, the Court shall determine the probable date of his or her birth, and the date specified in the order shall be deemed to be his or her date of birth. Section 201(3) If on application to the Court for an adoption order in respect of a child not being a child who has previously been the subject of an adoption order made by the Court under this Act, there is proof to the satisfaction of the Court of the identity of the child to whom an entry in the Register of Births relates, any adoption order made in pursuance of the application shall contain a direction to the Registrar to cause the entry in the Register of Births to be marked with the word "Adopted". Section 201(4) Where an adoption order is made by the Court in respect of a child who has previously been the subject of an adoption order made by such Court under this Act, the order shall contain a direction to the Registrar to be marked with the word "Re-adopted". Section 201(5)(a) marking an entry in the Register of Births with the word "Adopted"; and Section 201(5)(b) making the appropriate entry in the Adopted Children Register. - 202 Verify source ↗
ADOPTION - 202. Rights and duties of parents and capacity to marry
Upon an adoption order, the adopter acquires the rights, duties and liabilities of the child's biological or previous guardians (including custody, maintenance, education, guardianship appointments, inheritance and marriage consent), joint adopters stand to the child as lawful parents, and for marriage law an adopter and the adopted child are treated as within prohibited degrees of consanguinity.
Section 202. Rights and duties of parents and capacity to marry Section 202(1) Upon an adoption order being made, all rights, duties, obligations and liabilities of the biological parents in case of a first adoption or adoptive parents in case of subsequent adoption or guardians of the child in relation to the future custody, maintenance and education of the child, including all rights to appoint a guardian, to inherit property and to consent or give notice of dissent to marriage, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by, and enforceable against, the adopter as if the child were a biological child of the adopter and, in respect of the matters aforesaid, the child shall stand in relation to the adopter as a child born of the adopter. Section 202(2) In any case where two spouses are joint adopters, the spouses shall, in respect of the matters set out in subsection (1), and for the purposes of the jurisdiction of any Court to make orders as to the legal custody and maintenance of and right of contact with children, stand to each other and to the child in the same relation as they would have stood if they had been the lawful father and mother of the child and the child shall stand to them in the same relation as to a lawful father and mother respectively. Section 202(3) For the purpose of any written law relating to marriage for the time being in force in Kenya, an adopter and the child whom he or she has been authorised to adopt under an adoption order, shall be deemed to be within the prohibited degrees of consanguinity, and the provisions of this subsection shall continue to have effect notwithstanding that some person other than the adopter is authorised by a subsequent order to adopt the same child. - 203 Verify source ↗
ADOPTION - 203. Application of Work Injury Benefits Act
For purposes of the Work Injury Benefits Act, a child a deceased employee was authorised to adopt is deemed a member of the employee's family, and an adopter is deemed the parent of a deceased child whom he was authorized to adopt.
Section 203. Application of Work Injury Benefits Act Section For the purposes of the Work Injury Benefits Act, a child whom a deceased employee had been authorised to adopt under an adoption order shall be deemed to be a member of the family of the employee, and an adopter shall be deemed to be the parent of a deceased child whom he had been authorized to adopt. - 204 Verify source ↗
ADOPTION - 204. Orders and agreements in respect of child born outside marriage
If an adoption order is made for a child who was previously under a care order, that care order immediately stops having effect; likewise, a maintenance order for such a child ceases to have effect on the date of the adoption order (subject to recovery of arrears).
Section 204. Orders and agreements in respect of child born outside marriage Section 204(1) Where an adoption order is made in respect of a child previously committed to the care of foster parents, a voluntary children’s institution, a children’s institution, or a rehabilitation school by a care order in force under this Act, the care order shall forthwith cease to have effect. Section 204(2) Without prejudice to the right of any person to recover any arrears of contribution made under an order of the Court, a maintenance order made in respect of a child under this Act shall cease to have effect at the date of the adoption order. - 205 Verify source ↗
ADOPTION - 205. Intestacies and testamentary instruments
If, after an adoption order, the adopter, the adopted child or any other person dies intestate, the property devolves as if the adopted child were the adopter's biological child; subsection (1) does not apply to property subject to settlements or entailed interests made before the adoption order; and subsection (3) prescribes how references to children and relations are to be construed.
Section 205. Intestacies and testamentary instruments Section 205(1) Where at any time after the making of an adoption order the adopter or the adopted child or any other person dies intestate in respect of any movable or immovable property, the property shall devolve in all respects as if the adopted child were a biological child of the adopter. Section 205(2) The provisions of subsection (1) shall not apply to any property which is subject to a settlement or an entailed interest under a disposition made before the date of the adoption order in accordance with the law of succession. Section 205(3)(a) any reference, whether express or implied, to the child or children of the adopter shall be construed as, or as including, a reference to the adopted child; Section 205(3)(b) any reference, whether express or implied, to the child or children of the adopted child’s natural parents or either of them shall be construed as not being or as not including, a reference to the adopted child; and Section 205(3)(c) any reference, whether express or implied, to a person related to the adopted child in any degree shall be construed as a reference to the person who would be related to him or her in that degree if he or she were the child of the adopter. - 206 Verify source ↗
ADOPTION - 206. Provisions supplementary tosection 196
Section 206. Provisions supplementary tosection 196 Section 206(1)(a) where he or she was adopted by two spouses jointly and that the other person is the child or adopted child of both of them, as brother and sister of the whole blood; and Section 206(1)(b) in any other case, as brother and sister of the half blood. Section 206(2) Notwithstanding anything in section 205 , trustees or personal representatives may convey or distribute any movable or immovable property to or among the persons entitled thereto without having ascertained that no adoption order has been made by virtue of which any person is or may be entitled to any interest therein, and shall not be liable to any such person of whose claim they have not had notice at the time of the conveyance or distribution, but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person other than a purchaser for value without notice, who may have received it. Section 206(3) Where an adoption order is made in respect of a person who has previously been adopted, the previous adoption shall be disregarded, for the purposes of section 205 , in relation to the devolution of any property on the death of a person dying intestate after the date of the subsequent adoption order and in relation to any disposition of property made after that date. - 207 Verify source ↗
ADOPTION - 207. Effect of inter-country adoptions
Adoptions made in other countries that fall within this section have the same effect as an adoption order made under this Act; certain foreign adoption orders must be lodged in Court when the adopter is resident in Kenya.
Section 207. Effect of inter-country adoptions Section 207(1) Where a child has been adopted, whether before or after the commencement of this Act, in any place, and the adoption is one to which this section and other written laws apply, the adoption shall have the same effect as an adoption order validly made under this Act. Section 207(2)(a) the adoption order was made by a Court of law in the Commonwealth and any Court of competent jurisdiction in any other country; Section 207(2)(b) in consequence of the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted child in respect of the custody of the child; and Section 207(2)(c) in consequence of the adoption, the adopter had, immediately following the adoption, according to the law of that country, a right superior or equal to that of any natural parent in respect of any property of the adopted person which was capable of passing to the parent or any property of the child dying intestate without other next of kin, and domiciled in that place where the adoption was made and a national of the country which had jurisdiction in respect of that place, but not otherwise. Section 207(3) An adoption order made outside Kenya in favour of an adopter who is resident in Kenya shall be lodged in the Court within the period and in the manner specified in the rules made in accordance with this Act. - 208 Verify source ↗
ADOPTION - 208. Restriction on adoption arrangements
Makes it unlawful for adoption agencies, institutions, individuals or public officers to arrange adoptions unless the placing body is duly registered as an adoption society.
Section 208. Restriction on adoption arrangements Section 208(1) No adoption agency, institution, individual or public officer may make or facilitate the making of any arrangements for the adoption of a child under this Act unless the agency or institution is duly registered as an adoption society in accordance with this Act. Section 208(2) An application for registration of an adoption society under this Act shall be made to the Secretary in the manner prescribed in regulations. Section 208(3)(a) approve the application for registration; Section 208(3)(b) a person taking part in the management or control of the society or a member of the society has been convicted of an offence under this Part, or has been guilty of breach of any regulations made under this Part; or Section 208(3)(b)(i) a person taking part in the management or control of the society or a member of the society has been convicted of an offence under this Part, or has been guilty of breach of any regulations made under this Part; or Section 208(3)(b)(ii) it would not be in the public interest to approve the application, having regard to the number of duly registered adoption societies for the time being in active operation in the applicant’s local limits. Section 208(4) Where an application for registration is refused, no further application for registration of the adoption society may be made under this section within a period of six months with effect from the date on which the applicant is notified of the refusal. Section 208(5) Where the Council approves the registration of an adoption society, the Council to issue a Certificate of Registration in the prescribed form. Section 208(6) The Certificate of Registration issued under this section shall be valid for a period of twelve months from the date of registration and liable to review by the Council at the end of the term of registration whereupon the Committee shall recommend to the Council that the registration be either renewed for a further term of twelve months or cancelled with immediate effect. Section 208(7) An appeal against the decision of the Council to recommend refusal or cancellation of the registration of an adoption society shall lie to the Cabinet Secretary. Section 208(8) A person aggrieved by the decision of the Cabinet Secretary under subsection (7) may institute legal proceedings in court. - 209 Verify source ↗
ADOPTION - 209. Certain offences relating to adoption
It is prohibited to willfully and without lawful justification take part in or facilitate the adoption of a child unless the association is registered as an adoption society; unregistered managers arranging adoptions commit an offence punishable by up to ten years' imprisonment or a fine up to two million shillings; a body corporate contravening this Part is liable to a fine up to five million shillings.
Section 209. Certain offences relating to adoption Section 209(1) A person or association, whether incorporated or unincorporated) shall not willfully and without lawful justification take part in or facilitate the adoption of a child unless the association is registered as an adoption society. Section 209(2) Any person who takes part in the management or control of a society or association, whether incorporated or unincorporated, for the purpose of making arrangements for the adoption of a child or children, but which is not registered for that purpose, commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding two million shillings, or to both. Section 209(3) A body corporate which contravenes a section under this Part commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings. - 210 Verify source ↗
ADOPTION - 210. Functions of adoption societies
Adoption societies must make inquiries and investigations and obtain reports (as prescribed or as the Court directs) to try to ensure the suitability of a proposed adoption of a child.
Section 210. Functions of adoption societies Section to make such inquiries and investigations, and to cause such reports as shall be prescribed or as the Court may direct, to be obtained for the purpose of ensuring so far as may be possible, the suitability of the proposed adoption of a child; - 211 Verify source ↗
ADOPTION - 211. Adoption proceedings to be confidential
Members or officers of adoption societies and persons employed in administering the Act must treat all documents and information relating to adoptions and the parties involved as secret and confidential.
Section 211. Adoption proceedings to be confidential Section 211(1) A member or officer of an adoption society, and a person having any official duty under or being employed in the administration of this Act, shall regard and deal with all documents and information relating to the adoption or proposed adoption of any child, or to any such child, or to the parent or guardian of such child, or to the proposed adopter of such child, as secret and confidential. Section 211(2)(a) the Court, the Council, the Cabinet Secretary, the Registrar or any other member or officer of the society; or Section 211(2)(b) an advocate representing the applicant or the guardian ad litem appointed under this Part, otherwise than for the purposes of this Act, Section 211(3) Without prejudice to subsection (2), nothing contained in this section shall apply to the communication of any document or information in good faith in the interest of the child to whom the records relate or of the parent or proposed adopter of the child. Section 211(4)(a) carrying into effect the provisions of this Part; or Section 211(4)(b) in order to bring or assist in the course of a prosecution of any person for any offence under this Part. Section 211(5) The Cabinet Secretary may, by order in writing, exempt any person by name or office from the provisions of subsection (2). - 212 Verify source ↗
ADOPTION - 212. Prohibition of certain payments
Prohibits giving, agreeing to give, receiving or arranging payments or rewards in consideration of adopting a child, while listing specific permitted payments.
Section 212. Prohibition of certain payments Section 212(1)(a) any adopter or any parent or guardian of a child who receives any payment or other reward in consideration of the adoption of a child under this Act; or Section 212(1)(b) makes or gives or agrees to give to any adopter or any parent or guardian of the child any payment or other reward in consideration of the adoption of any child under this Act; or Section 212(1)(b)(i) makes or gives or agrees to give to any adopter or any parent or guardian of the child any payment or other reward in consideration of the adoption of any child under this Act; or Section 212(1)(b)(ii) makes arrangement for the adoption of a child and receives or makes or gives any payment or other reward in connection with the making of the arrangements, Section 212(2)(a) any payment the making or receipt of which is sanctioned by the Court to which an application for an adoption order in respect of a child is made; Section 212(2)(b) any payment made by or on behalf of an adoption society in respect of the maintenance of a child who has been placed at the disposition of the society; Section 212(2)(c) any payment made to an adoption society by the parent or guardian of a child, or by any other person in respect of the maintenance of the child, so long as the child is not in the care and possession of a person who has adopted or proposes to adopt him or her, whether under an adoption order or any other order; Section 212(2)(d) any payment made to an advocate representing any party in or in connection with an application for an adoption order, in respect of such application; Section 212(2)(e) any voluntary contribution made by any person in good faith to, and declared in the books of, an adoption society; or Section 212(2)(f) any fee prescribed by the Cabinet Secretary as payable to an adoption society in discharge of any of its functions under the Act or any other written law. - 213 Verify source ↗
ADOPTION - 213. Restriction on advertisement
Advertising is prohibited in relation to the listed adoption matters; anyone who contravenes this prohibition commits an offence punishable on conviction by up to twelve months imprisonment or a fine up to two hundred thousand shillings, or both.
Section 213. Restriction on advertisement Section 213(1)(a) a parent or guardian of a child wishes to give up the child for adoption; Section 213(1)(b) a person wishes to adopt a child; Section 213(1)(c) any person, not being an adoption society, is willing to make arrangements for the adoption of a child; or Section 213(1)(d) anything that is, considering the totality of the circumstances, demeaning or undermines the personal dignity of a child. Section 213(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding two hundred thousand shillings, or to both. - 214 Verify source ↗
ADOPTION - 214. Offences under this Part
If a corporate offence is proved to have involved the consent, connivance or neglect of a director, manager, committee member, secretary or other officer, that person is treated as having committed the offence and is liable to the penal sanctions prescribed by the Act.
Section 214. Offences under this Part Section Where any offence under any regulations made under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, member of a committee, secretary or other officer of the body, he or she, as well as the body corporate, shall be deemed to have committed that offence and shall be liable to the respective penal sanctions prescribed under this Act. - 215 Verify source ↗
ADOPTION - 215. Regulations
Regulates and maintains supervision over adoption societies and persons or associations that purport to assist in arranging adoptions of children.
Section 215. Regulations Section regulating and maintaining supervision over the activities of adoption societies and persons or associations purporting to assist in making arrangements for the adoption of children; - 216 Verify source ↗
ADOPTION - 216. Rules of Court
The Chief Justice may make rules of Court directing how applications are made and proceedings undertaken under this Part.
Section 216. Rules of Court Section The Chief Justice may make rules of Court directing the manner in which applications may be made and judicial proceedings undertaken under this Part.
Part XV
CHILDREN IN CONFLICT WITH THE LAW
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CHILDREN IN CONFLICT WITH THE LAW - 217. Application of Criminal Procedure Code
A Children’s Court may try a child for any offence except murder; this is stated notwithstanding Part II of the Criminal Procedure Code.
Section 217. Application of Criminal Procedure Code Section 217(1) Notwithstanding the provisions of Part II of the Criminal Procedure Code, a Children’s Court may try a child for any offence except the offence of murder. Section 217(2) Reference to Subordinate Courts of any class in the First Schedule to the Criminal Procedure Code includes a Children’s Court. - 218 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 218. Assessment of a child on arrest
Police officers must notify a childs parent or guardian and the Secretary or an authorised officer within twenty four hours of arrest, summons or written notice; Childrens Officers must assess the child in a secure, child-friendly place and in a manner that considers the childs comfort and best interests, following the Fifth Schedule.
Section 218. Assessment of a child on arrest Section 218(1) A police officer who arrests, serves a summons or issues with a written notice to child shall notify the parent or guardian of the child and the Secretary or an authorised officer within twenty four hours. Section 218(2)(a) a social inquiry on the child to ascertain the social, economic, personal circumstances, and the needs of the child; Section 218(2)(b) the child’s tendency to engage in activities which is in conflict with the law; and Section 218(2)(c) the surrounding facts and circumstances leading to the child’s conduct in conflict with the law. Section 218(3) A Children’s Officer shall assess a child under subsection (1) in an environment that is secure and is friendly to a child that may include a room in a police station, the children’s Court or the offices of the Secretary. Section 218(4) A Children’s Officer shall assess a child in a manner that is conducive to ease and comfort a child and shall have regard to the best interest of a child. Section 218(5) The assessment of a child for purposes of this section shall be carried out in accordance with the Fifth Schedule. - 219 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 219. Power to remit cases to Children’s Court
Courts (other than Children’s Courts) may or, where a subordinate court has an established Children’s Court in its area, shall remit a child’s case (not murder and not charged with adults) to a Children’s Court; the remitting court must send a certificate and may give directions about custody or bail; the Children’s Court may deal with the offender as if tried and convicted by it.
Section 219. Power to remit cases to Children’s Court Section 219(1) Subject to any rules or directions made or issued by the Chief Justice, where it appears to a court, other than a Children’s Court, at any stage of the proceedings that a child is charged before it with an offence other than murder and is not charged together with a person or persons of or above the age of eighteen years, the court may, and where within the area of a subordinate court’s jurisdiction there is established a Children’s Court having jurisdiction, the subordinate court shall remit the case to a Children’s Court; Provided that nothing in this subsection shall be construed as preventing a court, if it considers in the circumstances, including the stage reached in the proceedings, that it is proper so to do, from proceeding with hearing and determination of the charge. Section 219(2) Where in accordance with the provisions of subsection (1) of this section, a case is remitted to a children’s court after a finding that the child charged is guilty of the offence, the Children’s Court to which the case has been remitted may deal with the offender in any way in which it might have dealt with him if he had been tried and found guilty by that court. Section 219(3) No appeal shall lie against an order of remission made under this section, but nothing in this section shall affect any right of appeal against the verdict or finding on which such order under section 194 of this Act, he may appeal against such findings to the Court of Appeal. Section 219(4) A court by which an order remitting a case to a Children’s Court is made under this section may give such directions as appear to be necessary with respect to the custody of the offender or for his release on bail or bond until he can be brought before the Children’s Court, and shall cause to be transmitted to the clerk of the Children’s Court a certificate setting out the nature of the offence and stating the stage reached in the case, and that the case has been remitted for the purposes of being dealt with under this section. Section 219(5) Where, pursuant to the provisions of section 182 , a court other than a Children’s court hears a charge against a child, the court shall apply all the provisions of this Act as relate to the safeguards to be accorded a child offender. - 220 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 220. Rights of a child offender
Child offenders have a right to privacy during arrest, investigation and other stages; persons must not publish identifying information about a child offender; contravention is an offence punishable by a fine not exceeding five hundred thousand shillings or imprisonment up to 12 months, or both.
Section 220. Rights of a child offender Section 220(1) A child offender has the right to privacy during arrest, the investigation of the offence and at any other stage of the cause of the matter. Section 220(2) A person shall not in the course of arrest, investigation or trial of an offence connected with a child offender, or at any other stage of the course of the matter, release any information for publication that may lead to the identification of the child offender. Section 220(3) Any person who contravenes subsection (2) commits an offence and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding 12 months, or to both. - 221 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 221. Criminal liability of a child
Children under 12 are not criminally responsible; children under 14 who commit an offence are presumed unable to tell right from wrong unless the court decides otherwise; the Part still applies to persons who turn 18 before proceedings conclude.
Section 221. Criminal liability of a child Section 221(1) A person under the age of twelve years shall not be criminally responsible for any act or omission. Section 221(2) A child who commits an offence while under the age of fourteen years shall be presumed not to be capable of differentiating between right and wrong, unless the Court is satisfied on evidence to the contrary. Section 221(3) The provisions of this Part shall apply to a person who reaches the age of eighteen years before proceedings instituted against them pursuant to the provisions of this Act have been concluded. - 222 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 222. Right of a child to be heard in proceedings
Section 222 grants children the right to be heard in proceedings and lists fair trial rights; it entitles parents, guardians and fit persons to assist and requires the State to provide communication mechanisms for children in conflict with the law.
Section 222. Right of a child to be heard in proceedings Section 222(1) Every child shall be afforded an opportunity to be heard in proceedings affecting the child, either directly or through a representative. Section 222(2) Pursuant to the provisions of Article 50 of the Constitution, every child is entitled to the right to a fair trial, which shall include the presumption of innocence, the right to be notified of the charges preferred against him or her, the right to legal representation, the right to the presence of a parent or guardian, the right to present and examine witnesses, the right to remain silent, and the right to appeal at all stages of the proceedings. Section 222(3) Parents, guardians and fit persons have the right to assist the child in proceedings under this Act, and whenever possible, to participate in decisions affecting them, unless their participation is not in the best interest of the child. Section 222(4) The State shall put in place mechanisms to facilitate appropriate and effective communication with the child in conflict with the law in order to ensure the child’s participation in the judicial proceedings, including the provision of interpreters, intermediaries, augmentative and alternative modes of communication in appropriate cases. - 223 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 223. Detention of children
Detention or institutionalization of children pending trial must be used only as a last resort and, where reasonably practicable, replaced by alternatives; detention must account for the child’s particular needs (age, gender, type of offence, mental and physical health or disability) and protect them from harmful influences and risks.
Section 223. Detention of children Section 223(1) Institutionalization and detention of children in conflict with the law pending trial shall be used as a means of last resort, and detention pending trial shall, as far as is reasonably practicable, be replaced by alternative measures, such as placement with a family or in an educational setting or home. Section 223(2) A child shall be detained under conditions that take full account of the child’s particular needs, status and special needs according to their age, gender and type of offence, as well as mental and physical health or disability, and protect them from harmful influence and situations of risk. - 224 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 224. Procedure in cases of children in conflict with the law
Procedure in cases of children in conflict with the law: diversion in accordance with this Act; or
Section 224. Procedure in cases of children in conflict with the law Section diversion in accordance with this Act; or - 225 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 225. Consideration of welfare
Courts must prioritize the best interests of a child brought before them and, where appropriate, remove the child from undesirable surroundings and secure provision for maintenance, education and training; children in remand or custodial care who are ill or complain of illness must be promptly examined and treated by a qualified medical practitioner.
Section 225. Consideration of welfare Section 225(1) Every court in dealing with a child who is brought before it shall have regard to the best interests of the child and shall, in a proper case take steps for removing him or her from undesirable surroundings and for securing that proper provision may be made for his or her maintenance, education and training. Section 225(2) Every child in remand or custodial care who is ill, or who complains of illness, whether physical or mental, shall be examined promptly by a qualified medical practitioner and treated. - 226 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 226. Objects of diversion
The provision states an object is to make use of alternative methods to hold children accountable for unlawful acts or omissions that result in harm to other persons.
Section 226. Objects of diversion Section make use of alternative methods of holding children accountable for their unlawful acts or omissions resulting in harm to other persons; - 227 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 227. When to consider diversion
Authorised officers or judicial officers must, in the first instance, consider a child for diversion when the child is eligible for diversion under this Act.
Section 227. When to consider diversion Section 227(1) Notwithstanding any provision of this Act or any other written law, any authorised officer or judicial officer dealing with any matter in which a child is suspected of, or charged with, the commission of an offence shall, where the child is eligible for diversion under this Act, in the first instance, consider that child for diversion. Section 227(2)(a) there is compelling evidence that the child committed the alleged offence; Section 227(2)(b) the child freely and voluntarily admits responsibility, and no intimidation or pressure has been used to induce that admission; Section 227(2)(c) the offence which he or she is suspected to have committed or charged with is not a capital offence; Section 227(2)(d) the child and his or her parent or guardian, or other person exercising parental responsibility over the child, consent to diversion; Section 227(2)(e) the concerns of the victim or the victim’s next of kin have been considered; and Section 227(2)(f) the child is a first or second offender. - 228 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 228. Preliminary inquiry
A preliminary inquiry must be held in respect of every child prior to plea, with specified matters to be considered; the Chief Justice may make rules of procedure for such inquiries.
Section 228. Preliminary inquiry Section 228(1) A preliminary inquiry shall be held in respect of every child prior to plea in accordance with rules made under this section, except where the child is below the age of twelve years, or the matter has been withdrawn. Section 228(2) A child's appearance at a preliminary inquiry shall be regarded as his or her first appearance in a Court as contemplated in the Criminal Procedure Code (Cap. 75). Section 228(3)(a) the age or estimated age of the child, if the age of the child is unknown; Section 228(3)(a)(i) the age or estimated age of the child, if the age of the child is unknown; Section 228(3)(a)(ii) the criminal responsibility of the child if the child is between the age of twelve years and fourteen years; and Section 228(3)(a)(iii) whether a further and more detailed assessment of the child is required; Section 228(3)(b) establish whether the matter can be diverted before plea; Section 228(3)(c) where applicable, identify a suitable diversion option; Section 228(3)(d) establish whether the case should be transferred to a Children's Court; Section 228(3)(e) ensure that all available information relevant to the child, his or her circumstances, and the offence is considered in order to make a decision on diversion and placement of the child; Section 228(3)(f) ensure that the views of all person’s present are considered before a decision is taken; Section 228(3)(g) encourage the participation of the child and his or her parent, guardian or fit person in decisions concerning the child; and Section 228(3)(h) conclusion of the preliminary inquiry; Section 228(3)(h)(i) conclusion of the preliminary inquiry; Section 228(3)(h)(ii) appearance of the child in a Court; or Section 228(3)(h)(iii) referral of the matter to the children's Court. Section 228(4) The Chief Justice may make Rules of procedure for the conduct of a preliminary inquiry under this Section. - 229 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 229. Determination of a child’s age
Determination of a child’s age; a previous determination of age by a magistrate under this Act or any other written law.
Section 229. Determination of a child’s age Section a previous determination of age by a magistrate under this Act or any other written law; - 230 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 230. Levels of diversion
A magistrate conducting the preliminary inquiry under section 228 may apply any of the diversion options in this section to a child who is eligible for diversion.
Section 230. Levels of diversion Section 230(1) The Magistrate conducting the preliminary inquiry contemplated under section 228 may apply any of the diversion options under this section to a child who is eligible for diversion. Section 230(2)(a) an oral or written apology to a specified person or persons; Section 230(2)(a)(i) an oral or written apology to a specified person or persons; Section 230(2)(a)(ii) a formal caution in the prescribed manner with conditions; Section 230(2)(a)(iii) placement under a supervision and guidance order for a period not exceeding three months; Section 230(2)(a)(iv) placement under a reporting order for a period not exceeding three months; Section 230(2)(a)(v) placement under a family time order for a period not exceeding three months; Section 230(2)(a)(vi) placement under a good-behavior order for a period not exceeding three months; Section 230(2)(a)(vii) the issue of an order prohibiting the child from visiting, frequenting or appearing at a specified place or places; Section 230(2)(a)(viii) referral to counseling or psychotherapy for a period not exceeding three months; Section 230(2)(a)(ix) compulsory attendance at a specified centre or place for a specified or educational purpose for a period not exceeding five hours each week, for a maximum of three months; Section 230(2)(a)(x) symbolic restitution to a specified person, persons, group or institution; Section 230(2)(a)(xi) restitution of a specified object to a specified victim or victims of the alleged offence where the object concerned can be returned or restored; or Section 230(2)(a)(xii) such other diversion options as may be prescribed in Regulations; Section 230(2)(b) the options referred to under paragraph (a) but the maximum periods contemplated in that subsection shall, for the purposes of this subsection, be extended to six months; Section 230(2)(b)(i) the options referred to under paragraph (a) but the maximum periods contemplated in that subsection shall, for the purposes of this subsection, be extended to six months; Section 230(2)(b)(ii) compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a period not exceeding eight hours each week, for a period not exceeding six months; Section 230(2)(b)(iii) performance of community service in accordance with the provisions of the Community Service Orders Act (Cap. 93); Section 230(2)(b)(iv) provision of a specified sum or benefit to a specified victim or victims; Section 230(2)(b)(v) payment of compensation up to a maximum of five thousand shillings to a specified person, persons, group or institution; Section 230(2)(b)(vi) referral to appear at a family group conference; or Section 230(2)(b)(vii) a combination of any two or more of the options specified in this subsection; Section 230(2)(c) the options referred to in paragraph (b), but the maximum periods contemplated in that subsection shall, for the purposes of this subsection, be extended to twelve months; Section 230(2)(c)(i) the options referred to in paragraph (b), but the maximum periods contemplated in that subsection shall, for the purposes of this subsection, be extended to twelve months; Section 230(2)(c)(ii) referral to a programme that does not exceed six months, and which has a residential element that does not exceed thirty-five days in total, and twenty-one consecutive days during the operation of the programme; Section 230(2)(c)(iii) performance of some service without remuneration for the benefit of the community in accordance with the Community Service Orders Act (Cap. 93); or Section 230(2)(c)(iv) compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a period not exceeding six months, and for not more than thirty-five hours in any one week. - 231 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 231. Power of Court in diversion
When ordering diversion, the magistrate must identify a children's officer, a probation officer, or another suitable person to monitor the child's compliance with the diversion option.
Section 231. Power of Court in diversion Section Upon ordering diversion, the magistrate conducting the inquiry or proceedings shall identify a children’s officer, a probation officer, or any other suitable person to monitor the child's compliance with the identified diversion option. - 232 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 232. Family Group Conference
Children officers must convene another family group conference within 14 days if the scheduled conference fails to take place; participants must follow agreed procedures; children officers must record and furnish agreed plans; officers must notify magistrate and DPP if a child fails to comply; children officers must remit matters to the magistrate if participants do not agree.
Section 232. Family Group Conference Section 232(1)(a) setting the time and place of the conference; and Section 232(1)(b) taking steps to ensure that all persons who are required to appear at the conference are given adequate notice of the time and place appointed for the conference. Section 232(2)(a) the child and his or her parent, guardian, or other fit person exercising parental responsibility over the child; Section 232(2)(b) a children officer; Section 232(2)(c) a probation officer; Section 232(2)(d) the Director of Public Prosecution; and Section 232(2)(e) the victim of the alleged offence. Section 232(3)(a) any person requested by the child; Section 232(3)(b) the legal representative of the child; Section 232(3)(c) a member of the community in which the child ordinarily resides; and Section 232(3)(d) a counsellor or psychologist. Section 232(4) If a family group conference fails to take place at the time and place set for the conference pursuant to subsection (1), the children officer shall, in consultation with the Director of Public Prosecutions, convene another conference within fourteen days. Section 232(5) The primary function of the family group conference shall be to discuss the offence committed by a child in conflict with the law, so that the child may understand the impact of their offence, acknowledge it and obtain support for the reform of his or her behavior. Section 232(6) The participants in a family group conference shall act in accordance with the procedure agreed on by all the parties, who may agree to such a plan in respect of the child as they consider appropriate. Section 232(7)(a) the application of any diversion option contemplated in this Part; or Section 232(7)(b) any other plan appropriate to the child, his or her family and local circumstances that is consistent with the principles contained in this Act. Section 232(8)(a) specify the objectives in relation to the child and the period within which they are to be achieved; Section 232(8)(b) contain details of the services and assistance to be provided for the child, the parent, guardian or other fit person having parental responsibility over the child; Section 232(8)(c) specify the person or organisations mandated to provide such services and assistance; Section 232(8)(d) state the responsibilities of the child and of the child's parent or guardian, or fit person having parental responsibility over the child; Section 232(8)(e) state personal objectives for the child and for the child's parent, guardian or fit person; and Section 232(8)(f) include such other matters relating to the education, vocational training, recreation and welfare of the child as are relevant. Section 232(9) The children officer shall record the details of, and reasons for, any plan agreed to at the family group conference, and shall furnish a copy of the record to the child, the magistrate conducting the preliminary inquiry and the Director of Public Prosecutions. Section 232(10) In the event of the child’s failure to comply with any condition of the plan agreed on at the family group conference, the officer or other person shall notify the magistrate conducting the inquiry and the Director of Public Prosecutions, in writing, of such failure, in which case the matter shall be set down for hearing at the Children’s Court. Section 232(11) If the participants in a family group conference do not agree on a plan, the conference shall be closed and the children officer shall remit the matter to the magistrate conducting the inquiry for consideration of an alternative diversion option. Section 232(12) The proceedings at a family group conference shall be confidential, and no statement made by any participant in the conference may be used as evidence in any subsequent Court proceedings. - 233 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 233. Assistance to child offender in court
Assistance to child offender in court; the right to remain silent.
Section 233. Assistance to child offender in court Section the right to remain silent; - 234 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 234. Rules
The Chief Justice must make Court rules of practice and procedure in diversion.
Section 234. Rules Section The Chief Justice shall make Court rules of practice and procedure in diversion. - 235 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 235. Guarantees to a child accused of an offence
A child accused of an offence must be promptly and directly informed of the charges against him or her.
Section 235. Guarantees to a child accused of an offence Section be promptly and directly informed of the charges against him or her; - 236 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 236. Duty to provide for the welfare of a child
Court must prioritize the best interests of a child before it, remove them from undesirable surroundings and ensure maintenance, education and training; officers must secure medical examination and care for remanded children who are ill; parents and guardians of remanded child offenders have a right to access the child.
Section 236. Duty to provide for the welfare of a child Section 236(1) In dealing with a child brought before it, the Court shall have regard to the best interest of the child, and shall take appropriate steps to remove the child from any undesirable surroundings, and to ensure that proper provision has been made for the child’s maintenance, education and training. Section 236(2) If a child held in remand or custodial care becomes ill, or complains of any ailment, the officer under whose charge the child is entrusted shall ensure that the child is examined by a competent medical practitioner and accorded appropriate medical care. Section 236(3)(a) be treated fairly; Section 236(3)(b) receive no less care, protection, assistance, treatment and training, than other children; and Section 236(3)(c) be given special attention to their personal and special need. Section 236(4) The parents and guardian of a child offender placed in remand or custodial care shall have the right to access the child in the interest and wellbeing of the child. - 237 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 237. Words "conviction" and "sentence" not to be used of child
The words "conviction" and "sentence" must not be used in relation to a child; references to conviction or sentence regarding a child are to be construed as findings of guilt or orders upon such findings.
Section 237. Words "conviction" and "sentence" not to be used of child Section 237(1) The words "conviction" and "sentence" shall not be used in relation to a child being dealt with by the Children’s Court. Section 237(2) Without prejudice to the generality of subsection (1), any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding, as the case may be. - 238 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 238. Restriction on punishment
Courts must not imprison children, must not impose the death penalty on a child, and Children’s Courts must not send children under twelve to rehabilitation schools.
Section 238. Restriction on punishment Section 238(1) No court shall order the imprisonment of a child. Section 238(2) Notwithstanding the nature of any offence punishable by death, no court shall impose the death penalty on a child on a finding of guilty for such an offence. Section 238(3) A Children’s Court shall not make any order to send a child under the age of twelve years to a rehabilitation school. Section 238(4) The performance of community service under an order of the Court shall be in accordance with the Community Service Orders Act (Cap. 93). - 239 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 239. Methods of dealing with children in conflict with the law
Lists methods and orders that may be used to deal with a child in conflict with the law, and allows the Court to impose other sanctions it considers just.
Section 239. Methods of dealing with children in conflict with the law Section 239(1)(a) discharge the child under section 35(1) of the Penal Code (Cap. 63); Section 239(1)(b) discharge the child on his or her entering into a recognisance, with or without sureties; Section 239(1)(c) make a probation order against the offender under the provisions of the Probation of Offenders Act; Section 239(1)(d) commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender; Section 239(1)(e) if the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances; Section 239(1)(f) order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the child’s parents or guardian; Section 239(1)(g) in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act; Section 239(1)(h) place the child under the care of a qualified counsellor or psychologist; Section 239(1)(i) order that the child be placed in an educational institution or vocational training programme; Section 239(1)(j) order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act; Section 239(1)(k) make a community service order; Section 239(1)(l) make a restorative justice order; Section 239(1)(m) make a supervision order; Section 239(1)(n) make any other orders of diversion provided for in this Part; or Section 239(1)(o) deal with the child in any other lawful manner as may be provided under any written law. Section 239(2) A child against whom a community service order has been made may, having regard to the child’s age and development, be required to perform the service without remuneration, or for the benefit of the community, under the supervision or control of an organisation or institution identified by the probation officer. Section 239(3) In addition, or as an alternative, to the orders prescribed in subsection (2), the Court may impose on a child such other sanctions as the Court may consider just. Section 239(4) Any community service performed by a child shall be for a maximum period of fifty hours, and shall be completed within a period not exceeding six months. Section 239(5) If a child fails to comply with any condition imposed on diversion, the Court shall make such orders as it considers fit, including an order directing that the child to be subjected to an alternative level of diversion. Section 239(6) The orders imposed on a child upon a finding of guilt shall be proportionate to the circumstances of the child, the nature of the offence and the public interest, and a child shall not be treated more severely than an adult would have been treated in the same circumstances. - 240 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 240. Mental treatment
The Court may, when making a probation order, require a child subject to that order to undergo mental treatment or professional counselling under a medical practitioner or counsellor.
Section 240. Mental treatment Section If it appears to the Court on the evidence of a medical practitioner or professional counsellor that a child requires, or may benefit from, mental treatment or professional counselling, the Court may, when making a probation order against him, require that the child undergoes mental treatment or professional counselling at the hand or under the direction of a medical practitioner or professional counsellor, subject to review by the Court, and as a condition of the probation order. - 241 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 241. Power to order parent to pay fines, etc.
The Court must order fines, compensation or costs to be paid by a child’s parent or guardian in specified cases; the Court may order a parent or guardian to give security; the Court must not make such orders without giving the parent or guardian an opportunity to be heard; sums ordered from a parent or guardian may be recovered as if they were convictions; a parent or guardian may appeal to the High Court.
Section 241. Power to order parent to pay fines, etc. Section 241(1) In any case where a child is charged with an offence for which a fine, compensation or costs may be imposed, and the Court is of the considered view that the case would best be met by imposition of a fine, compensation or costs, whether with or without any other punishment, the Court shall order that the fine, compensation or costs imposed or awarded be paid by the child’s parent or guardian. Section 241(2) Where a child is charged with an offence, the Court may order his or her parent or guardian to give security for his or her good behaviour. Section 241(3) An order under this section may be made against a parent or guardian who, having been required to attend before the Court, has failed to do so, but the Court shall not make any order in that regard without giving the parent or guardian an opportunity to be heard. Section 241(4) Any sums imposed and ordered to be paid by a parent or guardian under this section, or forfeiture of any security required under this Part, may be recovered from him or her in a like manner as if the order had been made on conviction of the parent or guardian of the child. Section 241(5) A parent or guardian of a child may appeal to the High Court against an order made by a Children’s Court under this section. - 242 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 242. Special police unit
Names a "Special police unit" and states it deals with children matters.
Section 242. Special police unit Section deal with children matters; - 243 Verify source ↗
CHILDREN IN CONFLICT WITH THE LAW - 243. Proceedings in respect of offences committed by a child
The Chief Justice may make rules of court about how proceedings for a child accused of an offence are conducted.
Section 243. Proceedings in respect of offences committed by a child Section The Chief Justice may make rules of court directing the manner in which proceedings in respect of a child accused of having infringed any law shall be conducted.
Part XVI
MISCELLANEOUS
- 244 Verify source ↗
MISCELLANEOUS - 244. Appeals to the Cabinet Secretary
A person aggrieved by acts of the Secretary or an authorised officer may appeal to the Cabinet Secretary within fourteen days; the appeal must be in the prescribed form; the Cabinet Secretary must make regulations prescribing the appeal procedure.
Section 244. Appeals to the Cabinet Secretary Section 244(1) A person aggrieved by any act of the Secretary or an authorised officer in exercise of powers conferred by this Act may appeal to the Cabinet Secretary within fourteen days. Section 244(2) An appeal under subsection (1) shall be made in the prescribed form. Section 244(3) The Cabinet Secretary shall make regulations prescribing the procedure of appeal under this section. - 245 Verify source ↗
MISCELLANEOUS - 245. Code of conduct
The Council must develop a code of conduct for its members and staff.
Section 245. Code of conduct Section The Council shall develop a code of conduct for its members and staff. - 246 Verify source ↗
MISCELLANEOUS - 246. General penalty
A person convicted of an offence under this Act for which no other penalty is prescribed is liable to imprisonment for up to twelve months, or a fine up to two hundred thousand shillings, or both.
Section 246. General penalty Section A person convicted of an offence under this Act for which no other penalty is prescribed shall be liable to imprisonment for a term not exceeding twelve months, or to a fine not exceeding two hundred thousand shillings, or to both. - 247 Verify source ↗
MISCELLANEOUS - 247. General power to make regulations
Grants a general power to make regulations prescribing anything that may be prescribed under this Act.
Section 247. General power to make regulations Section to prescribe anything that may be prescribed under this Act; or - 248 Verify source ↗
MISCELLANEOUS - 248. Grants and expenses of the Cabinet Secretary
Childrens institutions receiving public funds must keep proper books and records in accordance with the Public Finance Management Act; their accounts must be prepared, audited and reported under the Public Audit Act. The Cabinet Secretary may authorise grants in aid to adoption societies, foster parents or charitable childrens institutions from time to time.
Section 248. Grants and expenses of the Cabinet Secretary Section 248(1)(a) the expenses incurred by rehabilitation schools, child rescue centres, child protection centres and children’s remand homes; or Section 248(1)(a)(i) the expenses incurred by rehabilitation schools, child rescue centres, child protection centres and children’s remand homes; or Section 248(1)(a)(ii) expenses incurred by the Secretary in the administration of services to children in need of care and protection; Section 248(1)(b) such grants or grants in aid to adoption societies and foster parents or charitable children’s institutions as may be authorised by the Cabinet Secretary from time to time; or Section 248(1)(c) any other expenses incurred by the Cabinet Secretary and the Secretary in the administration of this Act. Section 248(2) A children’s institutions that receives public funds under this Act shall keep proper books and records of account of the income, expenditure, assets and liabilities of the institution with respect to public funds in accordance with the Public Finance Management Act (Cap. 412A). Section 248(3) The accounts of the children institutions that receives public funds shall be prepared, audited and reported upon in accordance with the provisions of the Public Audit Act (Cap. 412B). - 249 Verify source ↗
MISCELLANEOUS - 249. Repeals
Repeals The Children Act (No. 8 of 2001) and provides that transitional provisions in the Seventh Schedule take effect on commencement.
Section 249. Repeals Section 249(1) The Children Act (No. 8 of 2001) is repealed. Section 249(2) Without prejudice to the generality of the application of section 3 of the Interpretation and General Provisions Act ( Cap. 2 ), the transitional provisions set out in the Seventh Schedule shall have effect upon the commencement of this Act.
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