Guardianship Agreement

A Guardianship Agreement in Kenya governs the relationship between the parties by fixing what each must do.

Section 28 of the Children Act No. 29 of 2022 sets out the foundational principle governing all guardianship arrangements: the best interests of the child are the paramount consideration. Every guardianship arrangement — whether private or court-ordered — must be evaluated and implemented with the child's best interests as the overriding standard. This principle overrides the preferences of both biological parents and proposed guardians.

Guardianship in Kenya must be distinguished from custody and parental responsibility. Custody refers to the day-to-day physical care of the child. Parental responsibility, as defined in Section 23 of the Children Act No. 29 of 2022, encompasses all duties, powers, responsibilities, and authority that a parent has in relation to the child and the child's property. Guardianship, by contrast, is a formal legal status — either conferred by the High Court's Family Division or acknowledged through a private agreement — that empowers a non-parent to act in loco parentis (in the place of a parent) with respect to a child.

The High Court of Kenya, exercising its inherent jurisdiction over matters affecting children under Article 165(3) of the Constitution of Kenya 2010 and its jurisdiction under the Children Act No. 29 of 2022, retains ultimate supervisory authority over all guardianship arrangements. A private Guardianship Agreement does not oust the court's jurisdiction to vary or terminate the arrangement in the best interests of the child.

The Children Act No. 29 of 2022 strengthened protections for children in Kenya compared to the former Children Act Cap. 141, introducing clearer definitions of child abuse and neglect under Section 22, enhanced powers for Children's Officers employed by the Children's Department under the Ministry of Labour and Social Protection, and more strong provisions governing alternative family care including guardianship, foster care, and adoption under Part V of the Act. A Guardian operating under a private Guardianship Agreement must be aware of these provisions, including the obligation to report any abuse or neglect of the child to the Children's Department or the nearest police station under Section 22 of the Children Act No. 29 of 2022.

The Births and Deaths Registration Act Cap. 149 requires that a child's birth be registered within six months of birth, and the birth certificate is a critical document for establishing the child's identity before schools, hospitals, and government bodies. A Guardian operating under a Guardianship Agreement should confirm the child holds a valid birth certificate issued by the Principal Registrar of Births and Deaths and that this certificate is stored safely and made available to institutions requiring proof of the child's age and identity.

At forms-legal.com, our Kenya Guardianship Agreement template is structured to comply with the Children Act No. 29 of 2022 and reflects current judicial approaches to children's welfare in Kenya, giving parents and guardians a sound legal foundation for private guardianship arrangements.

A Guardianship Agreement in Kenya becomes necessary in a wide range of circumstances where parents or existing guardians wish to formally appoint another person to care for a child, whether for a defined period or on an open-ended basis.

The most common scenario is international migration or prolonged absence. When a parent relocates abroad for employment — for example, to the Gulf states, the United Kingdom, or North America — they may be unable to take the child with them immediately, or may choose to leave the child in Kenya under the care of a trusted relative. A Guardianship Agreement enables the travelling parent to formally vest care responsibilities in the named Guardian, who can then make day-to-day decisions about the child's schooling, medical care, and welfare without needing to refer every matter back to the absent parent.

The death or incapacity of a parent is another major trigger. Where a single parent — or both parents — die or become incapacitated, a Guardianship Agreement prepared in advance (and ideally registered with the Principal Registrar of Children) provides immediate clarity about who is responsible for the child. Without such an agreement, the family may face delays and legal uncertainty while applying to the High Court Family Division for a formal guardianship order.

Family circumstances within Kenya also commonly require a Guardianship Agreement — for example, where a young mother is a student and wishes to leave the child with grandparents during term time, or where a parent is hospitalised for an extended period and needs to nominate a guardian to manage the child's affairs during recovery.

Schools, hospitals, and government bodies including the Children's Department under the Ministry of Labour and Social Protection require proof of guardianship before dealing with a non-parent caregiver. A formally executed Guardianship Agreement — particularly one bearing the signature of a Commissioner for Oaths — provides the institutional recognition that informal family arrangements cannot.

International travel also requires a Guardianship Agreement: the Kenya Immigration Department and foreign embassies may require evidence of guardianship when a child travels without their biological parents, in conjunction with a Consent for Minor Travel document.

A legally sound Guardianship Agreement in Kenya under the Children Act No. 29 of 2022 must include the following critical components to be recognised and enforceable by Kenyan institutions and courts.

**Identification of the Child.** The agreement must fully identify the child concerned, including full name, date of birth, national birth certificate number (issued by the Registrar of Births and Deaths under the Births and Deaths Registration Act Cap. 149), gender, and current physical address. The child's interests must be the primary focus of the entire document.

**Identification of the Parent(s) or Existing Guardian(s).** The biological parents or existing legal guardians must be identified by their full names, national identity card or passport numbers, and physical addresses. If one parent is deceased, the death certificate number should be referenced. If one parent is unknown or absent, this should be stated.

**Identification of the Proposed Guardian.** The proposed Guardian must be identified with the same level of detail — full name, national identity card number, physical address, relationship to the child, and occupation. The Guardian's suitability should be attested through the agreement, and ideally supported by a Certificate of Good Conduct issued by the Directorate of Criminal Investigations (DCI).

**Scope of Guardianship.** The agreement must state clearly the scope of the Guardian's authority — whether this covers all aspects of the child's care and welfare, or is limited to specific matters such as schooling and medical decisions. Where the scope is limited, the agreement must specify which decisions remain with the biological parents.

**Duration of the Agreement.** The agreement should specify whether the guardianship is for a fixed period (for example, two years while the parent is working abroad) or open-ended. If fixed-term, the agreement should state the conditions under which it may be extended, renewed, or terminated.

**Financial Arrangements.** The agreement should record the financial arrangements for the child's care — including who is responsible for school fees, medical expenses, clothing, and other living costs, and the amount and frequency of any financial support the parent will provide to the Guardian for the child's upkeep.

**Child's Welfare and Best Interests.** Consistent with Section 28 of the Children Act No. 29 of 2022, the agreement must affirm that all decisions made by the Guardian will be guided by the best interests of the child, the child's right to education, health care, and protection from abuse or exploitation under Sections 12-22 of the Children Act No. 29 of 2022.

**Rights of Access by Parents.** The agreement should address the biological parents' rights to access, visit, or communicate with the child during the guardianship period, to confirm the child maintains family connections as required by Article 53 of the Constitution of Kenya 2010.

**Termination Conditions.** The agreement should specify the conditions under which the guardianship arrangement terminates — including the child reaching the age of 18 years (majority under the Age of Majority Act Cap. 33), the return of the parent, the child's death, or revocation by the parent or the High Court Family Division.

**Execution and Attestation.** The agreement must be signed by the parent(s) or existing guardian(s) and the proposed Guardian in the presence of witnesses, and should be executed before a Commissioner for Oaths under the Oaths and Statutory Declarations Act Cap. 15 to strengthen its evidentiary value before the Children's Department, schools, and courts.

Use the Kenya Guardianship Agreement template at forms-legal.com to create a thorough, legally sound document that protects your child's welfare under the Children Act No. 29 of 2022.