My sister left behind 10-year-old girl; how can I secure her estate?

Hi Vivian,
I currently live with my niece, who is 10 years old, after the passing of my sister in August 2022. The whereabouts of her father is unknown and his name does not feature on the birth certificate. I have been left to fully cater for the welfare of the child since the death of my sister. Prior to her death, she was a civil servant and her pension is likely to come out any time soon. She also had several businesses in Thika town and rental houses in Makongeni that are still in operation. How will I get these proceeds to cater for the needs of my niece?

Aida Kwamboka,
Thika

Dear Aida,

The best place to begin is to apply for guardianship. The Children Act defines a guardian broadly as any person, who, in the opinion of the court, has charge or control of a child.

The Constitution and the Children Act are the laws that govern matters relating to guardianship in Kenya. Article 53(2) of the Constitution stipulates that the child’s best interest is of paramount importance.

A child’s best interest is majorly considered by a court seized with the question of guardianship. Therefore, upon application, you shall be required to prove your suitability, readiness and willingness to take up responsibilities for the child.

A guardian may be appointed in respect of the child or the estate of the child, or both. I, therefore, recommend you apply for both.

When appointed to the estate of the child, you shall have the power and responsibility to administer the estate of the child for her own benefit, and the duty to take all reasonable steps to safeguard the estate from loss or damage, produce and make available accounts in respect of the estate on every anniversary of your appointment, and to produce any account or inventory in respect of the estate when required to do so by the court.

Should you be appointed over the child, you shall have the responsibility to ensure that the child gets adequate food, shelter, clothing, moral guidance, education, medical care, emotional support, and all other rights she has to ensure her all-rounded growth.

This guardianship agreement terminates when the child attains the age of 18 unless exceptional circumstances exist that will make the court consider an extension of the appointment.

The circumstances include mental or physical disability incapacitating your niece from maintaining herself or managing her property.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer; [email protected]