Introduction
1. This is an Originating Summons in which the Applicant, M.W.N., seeks appointment as the legal guardian of the minor, C.N.N., together with authority to make medical, educational, and welfare decisions on his behalf, and leave to relocate the child outside the Republic of Kenya.
2. The Summons is supported by the Applicant's affidavits, affidavits of fitness and support, and documentary evidence demonstrating the minor’s circumstances and the Applicant’s longstanding role in his care. No person has come forward to oppose the application.
3. The Court is accordingly required to determine the matter on the basis of the evidence presented and the applicable legal principles.
Factual Background
4. The undisputed evidence shows that the minor, C.N.N., was born in 2010. His mother, A.N.K., died in 2011, leaving him without maternal care from infancy. His biological father, D.N.N., has not exercised parental responsibility and his whereabouts remain unknown. There is also no indication that he has ever taken part in the child’s upbringing or support.
5. Following the mother's death, the minor was taken in by relatives who provided initial care, after which the Applicant gradually assumed the primary parental and financial role. The materials filed in support of the application include school documentation, receipts, and extensive remittance records showing regular payments for school fees, boarding expenses, upkeep, and general welfare items.
6. The Court has reviewed these exhibits and is satisfied that they demonstrate a consistent pattern of support by the Applicant over a considerable period. The child’s school records further confirm that he is in regular attendance, is a boarding student, and relies on the Applicant's financial and parental involvement.
7. The affidavits on record comprise the Supporting Affidavit of the Applicant, M.W.N.; an Affidavit of support and fitness sworn by R.M.N. on 11th September 2024; and an affidavit of support sworn by E.M.K. on 16th September 2024, in which he states that the Applicant is his paternal aunt and that the minor is his cousin. Collectively, the affidavits confirm the minor’s family history, the absence of the biological father, and the Applicant’s longstanding parental and financial involvement in the minor’s upbringing.
8. The Applicant resides abroad and seeks to formally assume legal guardianship to ensure continuity, stability, and lawful authority in making decisions concerning the child’s welfare, education, and development, including relocation where necessary.
Analysis and Determination
9. The controlling legal principles derive from the Constitution of Kenya, the Children Act, 2022, and the Children (Guardianship Practice and Procedure) Rules, 2024. Article 53(2) of the Constitution mandates that the best interests of the child shall be of paramount importance in every matter concerning the child, and this principle permeates the interpretation and application of all statutes dealing with children.
10. Under the Children Act, 2022, section 8 reiterates the primacy of the best-interests principle. Sections 106 to 114 set out the framework governing appointment of guardians, including eligibility, suitability, and the duties and powers conferred by guardianship. Section 120 authorises the Court to permit removal of a child from Kenya where such removal accords with the child’s welfare and does not infringe upon any existing parental rights.
11. The Children (Guardianship Practice and Procedure) Rules, 2024 prescribe the procedural pathway for such applications, including the initiation of proceedings by Originating Summons, the evidentiary requirements, the assessment of suitability, the examination of the child’s welfare history, the significance of family consents, and considerations relevant to international relocation.
12. Read cumulatively, these instruments require the Court to satisfy itself that the Applicant is fit and proper; that the application is made genuinely and in a manner that advances the minor’s welfare; that the minor’s care history justifies guardianship intervention; that no parental rights will be prejudiced; and that the orders sought will promote the best interests of the child.
13. The Court is also guided by the reasoning in the Ugandan case in In the matter of David Twesigye (an infant) and In the matter of an Application by Dawn Pittman and Dustin Pittman HCMA No. 0004 of 2008 where it was observed:
“While the primary right of a child is to grow up under the tutelage of his or her parents, or parent for the obvious reasons of emotional attachment, if it is shown to the satisfaction of a competent authority and in this case the court that vesting legal guardianship of the child in the applicants would serve the best interest of the child, then it would be proper for this court to make an order removing such child from the parent. The court has to weigh the emotional loss of staying with one’s parents against the opportunities that would come with relocation away from the hands of the parents.”
14. This persuasive authority underscores the balancing process required when considering whether alternative placement or relocation promotes a child's welfare.
15. The Court has also considered the Children Officer’s Report dated 12th November 2025 prepared by the Sub-County Children’s Office, Nyamira. The report confirms the minor’s age, schooling, and home background, and sets out the family history including the death of the mother and the prolonged absence and neglect by the biological father. The Children Officer interviewed both the minor and the Applicant. The minor expressed clear awareness of the application and stated that he supports the appointment of the Applicant as his guardian, noting that she has consistently supported his education and upkeep and that they share a close and trusting relationship.
16. The report further records that the Applicant has effectively been providing for the minor since the death of his mother, that she is a person of means with stable employment abroad, and that her assumption of legal guardianship would formalise a caregiving role she has long played. The officer concludes that the minor is in need of care and protection, that the Applicant is suitable and able to meet the child’s needs, and recommends that she be appointed guardian and be permitted to relocate with the child in order to secure a stable and supportive environment for his development.
17. The evidence before the Court demonstrates that the Applicant has been the minor’s principal source of emotional, financial, and developmental support. There is no competing claim to parental responsibility. The affidavits filed in support of the application corroborate the Applicant’s fitness, stability, and commitment to the minor’s well-being.
18. Given the minor’s early loss of maternal care, the prolonged absence of the father, and the Applicant’s longstanding provision of needs essential for the child’s growth and development, the Court is satisfied that appointment of the Applicant as guardian aligns with the constitutional and statutory imperative to uphold the best interests of the child.
19. With regard to relocation, the Applicant has demonstrated lawful residence and work abroad and has shown that the move would offer enhanced educational and welfare opportunities. No parental rights stand to be infringed, and no objection has been registered by any relative. Consistent with the reasoning articulated in David Twesigye (an infant), the Court has weighed any potential emotional loss against the opportunities that relocation presents and finds that the latter better serves the minor’s welfare needs.
Disposition
20. For these reasons, and being guided by the overriding principle that the best interests of the child are paramount, the Court makes the following orders:
1) M.W.N. is hereby appointed the legal guardian of the minor, C.N.N until he attains the age of eighteen (18) years or unless earlier revoked or later extended by the court in accordance with the law
2) The Applicant is authorised to make all medical, educational, welfare, and related decisions concerning the minor.
3) Leave is granted to the Applicant to remove the minor, C.N.N., from the jurisdiction of Kenya for purposes of residence, education, and upbringing, subject to compliance with all immigration requirements of both Kenya and the receiving State.
4) There shall be no order as to costs.
1. This is an Originating Summons in which the Applicant, M.W.N., seeks appointment as the legal guardian of the minor, C.N.N., together with authority to make medical, educational, and welfare decisions on his behalf, and leave to relocate the child outside the Republic of Kenya.
2. The Summons is supported by the Applicant's affidavits, affidavits of fitness and support, and documentary evidence demonstrating the minor’s circumstances and the Applicant’s longstanding role in his care. No person has come forward to oppose the application.
3. The Court is accordingly required to determine the matter on the basis of the evidence presented and the applicable legal principles.
Factual Background
4. The undisputed evidence shows that the minor, C.N.N., was born in 2010. His mother, A.N.K., died in 2011, leaving him without maternal care from infancy. His biological father, D.N.N., has not exercised parental responsibility and his whereabouts remain unknown. There is also no indication that he has ever taken part in the child’s upbringing or support.
5. Following the mother's death, the minor was taken in by relatives who provided initial care, after which the Applicant gradually assumed the primary parental and financial role. The materials filed in support of the application include school documentation, receipts, and extensive remittance records showing regular payments for school fees, boarding expenses, upkeep, and general welfare items.
6. The Court has reviewed these exhibits and is satisfied that they demonstrate a consistent pattern of support by the Applicant over a considerable period. The child’s school records further confirm that he is in regular attendance, is a boarding student, and relies on the Applicant's financial and parental involvement.
7. The affidavits on record comprise the Supporting Affidavit of the Applicant, M.W.N.; an Affidavit of support and fitness sworn by R.M.N. on 11th September 2024; and an affidavit of support sworn by E.M.K. on 16th September 2024, in which he states that the Applicant is his paternal aunt and that the minor is his cousin. Collectively, the affidavits confirm the minor’s family history, the absence of the biological father, and the Applicant’s longstanding parental and financial involvement in the minor’s upbringing.
8. The Applicant resides abroad and seeks to formally assume legal guardianship to ensure continuity, stability, and lawful authority in making decisions concerning the child’s welfare, education, and development, including relocation where necessary.
Analysis and Determination
9. The controlling legal principles derive from the Constitution of Kenya, the Children Act, 2022, and the Children (Guardianship Practice and Procedure) Rules, 2024. Article 53(2) of the Constitution mandates that the best interests of the child shall be of paramount importance in every matter concerning the child, and this principle permeates the interpretation and application of all statutes dealing with children.
10. Under the Children Act, 2022, section 8 reiterates the primacy of the best-interests principle. Sections 106 to 114 set out the framework governing appointment of guardians, including eligibility, suitability, and the duties and powers conferred by guardianship. Section 120 authorises the Court to permit removal of a child from Kenya where such removal accords with the child’s welfare and does not infringe upon any existing parental rights.
11. The Children (Guardianship Practice and Procedure) Rules, 2024 prescribe the procedural pathway for such applications, including the initiation of proceedings by Originating Summons, the evidentiary requirements, the assessment of suitability, the examination of the child’s welfare history, the significance of family consents, and considerations relevant to international relocation.
12. Read cumulatively, these instruments require the Court to satisfy itself that the Applicant is fit and proper; that the application is made genuinely and in a manner that advances the minor’s welfare; that the minor’s care history justifies guardianship intervention; that no parental rights will be prejudiced; and that the orders sought will promote the best interests of the child.
13. The Court is also guided by the reasoning in the Ugandan case in In the matter of David Twesigye (an infant) and In the matter of an Application by Dawn Pittman and Dustin Pittman HCMA No. 0004 of 2008 where it was observed:
“While the primary right of a child is to grow up under the tutelage of his or her parents, or parent for the obvious reasons of emotional attachment, if it is shown to the satisfaction of a competent authority and in this case the court that vesting legal guardianship of the child in the applicants would serve the best interest of the child, then it would be proper for this court to make an order removing such child from the parent. The court has to weigh the emotional loss of staying with one’s parents against the opportunities that would come with relocation away from the hands of the parents.”
14. This persuasive authority underscores the balancing process required when considering whether alternative placement or relocation promotes a child's welfare.
15. The Court has also considered the Children Officer’s Report dated 12th November 2025 prepared by the Sub-County Children’s Office, Nyamira. The report confirms the minor’s age, schooling, and home background, and sets out the family history including the death of the mother and the prolonged absence and neglect by the biological father. The Children Officer interviewed both the minor and the Applicant. The minor expressed clear awareness of the application and stated that he supports the appointment of the Applicant as his guardian, noting that she has consistently supported his education and upkeep and that they share a close and trusting relationship.
16. The report further records that the Applicant has effectively been providing for the minor since the death of his mother, that she is a person of means with stable employment abroad, and that her assumption of legal guardianship would formalise a caregiving role she has long played. The officer concludes that the minor is in need of care and protection, that the Applicant is suitable and able to meet the child’s needs, and recommends that she be appointed guardian and be permitted to relocate with the child in order to secure a stable and supportive environment for his development.
17. The evidence before the Court demonstrates that the Applicant has been the minor’s principal source of emotional, financial, and developmental support. There is no competing claim to parental responsibility. The affidavits filed in support of the application corroborate the Applicant’s fitness, stability, and commitment to the minor’s well-being.
18. Given the minor’s early loss of maternal care, the prolonged absence of the father, and the Applicant’s longstanding provision of needs essential for the child’s growth and development, the Court is satisfied that appointment of the Applicant as guardian aligns with the constitutional and statutory imperative to uphold the best interests of the child.
19. With regard to relocation, the Applicant has demonstrated lawful residence and work abroad and has shown that the move would offer enhanced educational and welfare opportunities. No parental rights stand to be infringed, and no objection has been registered by any relative. Consistent with the reasoning articulated in David Twesigye (an infant), the Court has weighed any potential emotional loss against the opportunities that relocation presents and finds that the latter better serves the minor’s welfare needs.
Disposition
20. For these reasons, and being guided by the overriding principle that the best interests of the child are paramount, the Court makes the following orders:
1) M.W.N. is hereby appointed the legal guardian of the minor, C.N.N until he attains the age of eighteen (18) years or unless earlier revoked or later extended by the court in accordance with the law
2) The Applicant is authorised to make all medical, educational, welfare, and related decisions concerning the minor.
3) Leave is granted to the Applicant to remove the minor, C.N.N., from the jurisdiction of Kenya for purposes of residence, education, and upbringing, subject to compliance with all immigration requirements of both Kenya and the receiving State.
4) There shall be no order as to costs.