Chief Justice Martha Koome has outlined new draft guidelines defining how orphans will be cared for within a family setup.
The draft guidelines seek to operationalise the Children Act 2022, which was assented to by former President Uhuru Kenyatta on July 6 last year, replacing the previous one signed into law in 2001.
In the guidelines, Koome warned that not all adults are allowed to play the role of a guardian to a child or children who have lost their parents or cannot track them as orphans were previously mistreated.
The new terms also specify that the guardian must be a Kenyan citizen, and the child should be a resident of the country.
"A person qualifies to be appointed as a guardian if that person is a Kenyan citizen, is a fit person and is a surviving parent of the child according to Cap. 248," the rules read in parts.
In an attempt to avert challenges that come with instability in families, the new rules demand that a guardian will have to undergo a mental assessment by reputable medical examiners in recognised health facilities.
"A guardian is not a person with mental illness as defined under the Mental Health Act and has not been convicted of any of the offences specified in the Third Schedule to the Act," the new rules read in parts.
"Any of the following persons may be appointed as a guardian in respect of a child— the surviving parent, the relative of the child, the Secretary, an authorised officer and the executor of a will," Koome added.
A guardian can also be the personal representative of a deceased parent's estate or persons authorised to act jointly as a guardian pursuant to Section 123 of the Children Act.
The court may appoint a guardian on the death of a parent or where a child's parent cannot be found after an elaborate search.
This provision is meant to provide a responsible homage to the children who have disappeared from their homes and wandered into new locations.
Where the application is for the appointment of a guardian over the estate to which the child is a beneficiary or with respect to the estate of the child, the authority will have to define a description and estimated value of all immovable and other assets comprising the estate.
This includes the name and address of the person by whom the estate is administered, a description of any anticipated periodic payment for the child, including contributions towards the maintenance of the child, and social welfare benefits.
"The description must also include a consent affirming that the proposed guardian and any other person who may significantly affect the child’s welfare and consent to the appointment.
"There must also be a statement that the appointment of the applicant as an interim guardian is required to protect the welfare and the best interest of the child," the new rules read in parts.
