Point in Time
Act No: No. 8 of 2001
Act Title: CHILDREN
[ Date of commencement: 1st March, 2002. ]
[ Date of assent: 31st December, 2001. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title and commencement

This Act may be cited as the Children Act, 2001 and shall come into operation on such date as the Minister may, by notice in the Gazette, appoint and different dates may be appointed for different provisions.

2.
Interpretation

In this Act, unless the context otherwise requires—

“Adoption Committee” means the Committee established under section 155;

“adoption order” means an adoption order under section 154 vesting the parental rights and duties relating to a child in the adopter;

“adoption society” means a society approved by the Adoption Committee under section 177;

“age” where actual age is not known means apparent age;

“appointed local authority” means a local authority appointed under section 41;

“approved officer” means a person appointed under section 38;

“Area Advisory Council” means a council established under section 32;

“authorised officer” means a police officer, an administrative officer, a children’s officer, an approved officer, a chief appointed under the Chiefs’ Act (Cap. 128), a labour officer or any other officer authorised by the Director for the purposes of this Act;

“body of persons” means any body of persons whether incorporate or unincorporate;

“borstal institution” means a borstal institution established by section 3 of the Borstal Institutions Act (Cap. 92);

“child” means any human being under the age of eighteen years;

“child abuse” includes physical, sexual, psychological and mental injury;

“child of tender years” means a child under the age of ten years;

“children’s remand home” means a remand home established under section 50 for the detention of children;

“Council” means the National Council for Children’s Services established by section 30;

“Director” means the Director of Children’s Services appointed under section 37;

“disabled child” means a child suffering from a physical or mental handicap which necessitates special care for the child;

“early marriage” means marriage or cohabitation with a child or any arrangement made for such marriage or cohabitation;

“education” means the giving of intellectual, moral, spiritual instruction or other training to a child;

“female circumcision” means the cutting and removal of part or all of the female genitalia and includes the practices of clitoridectomy, excision, infibulation or other practice involving the removal of part, or of the entire clitoris or labia minora of a female person;

“foster care placement” means the placement of a child with a person who is not the child’s parent, relative or guardian and who is willing to undertake the care and maintenance of that child;

“foster parent” means a parent registered under this Act to receive and retain a child for the purpose of caring for and maintaining the child apart from the child’s parents, guardian or relative;

“foster care placement” means the placement of a child with a person who is not the child’s parent, relative or guardian and who is willing to undertake the care and maintenance of that child;

“guardian” in relation to a child includes any person who in the opinion of the court has charge or control of the child;

“home” in relation to a child means the place where the child’s parent, guardian, relative or foster parent permanently resides, or if there is no parent, guardian or relative living and the child has no foster parent, the child’s parent’s or guardian’s or relative’s last permanent residence:

Provided that—

(i)

in the case of a parent, guardian or relative having, or having had more than one permanent place of residence, the parent, guardian or relative shall be presumed to be or to have been permanently resident at the place of such person’s principal permanent residence; and

(ii)

where the court is unable to determine the home of any such child, the child shall be deemed for the purposes of this Act to have his home in the area of jurisdiction of the local authority in whose area he is found;

“medical practitioner” means a person registered as a medical practitioner under the Medical Practitioners’ and Dentists’ Act (Cap. 253);

“Minister” means the Minister for the time being entrusted with the Administration of this Act or such other Minister as may be expressly charged with any special matter which is otherwise dealt with under this Act;

“National Council of Non-Governmental Organisations” means the National Council of Non-Governmental Organisations established by section 23 of the Non-Governmental Organisations Co-ordination Act (No. 19 of 1990);

“nursery” means any institution or place at which for the time being, five or more children under the age of seven years are received and cared for regularly for reward;

“parent” means the mother or father of a child and includes any person who is liable by law to maintain a child or is entitled to his custody;

“place of safety” means any institution, hospital or other suitable place the occupier of which is willing to accept the temporary care of a child;

“private sector” means the non-public sector of the economy;

“rehabilitation school” means a rehabilitation school established under section 47;

“relative”, in relation to a child, means any person related to the child, whether of the full blood, half blood or by affinity, and—

(a)

where an adoption order has been made in respect of the child or any other person under this Act, any person who would be a relative of the child within the meaning of this definition if the adopted person was the child of the adopter born inside marriage; or

(b)

where the child is born outside marriage and the father has acknowledged paternity and is contributing towards the maintenance of the child, the father of the child within the meaning of this definition if the child was the child of his mother and father born inside marriage;

“spouse”, in relation to a wife of a polygamous marriage, means the wife applying for an adoption order either as the sole applicant or jointly with the husband or the wife into whose care a husband applying for an adoption order proposes to give the child.

PART II – SAFEGUARDS FOR THE RIGHTS AND WELFARE OF THE CHILD
3.
Realization of the rights of the child

The Government shall take steps to the maximum of its available resources with a view to achieving progressively the full realization of the rights of the child set out in this Part.

4.
Survival and best interests of the child
(1)

Every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child.

(2)

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(3)

All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—

(a)

safeguard and promote the rights and welfare of the child;

(b)

conserve and promote the welfare of the child;

(c)

secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

(4)

In any matters of procedure affecting a child, the child shall be accorded an opportunity to express his opinion, and that opinion shall be taken into account as may be appropriate taking into account the child’s age and the degree of maturity.

5.
Non-discrimination

No child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.

6.
Right to parental care
(1)

A child shall have a right to live with and to be cared for by his parents.

(2)

Subject to subsection (1), where the court or the Director determines in accordance with the law that it is in the best interests of the child to separate him from his parent, the best alternative care available shall be provided for the child.

(3)

Where a child is separated from his family without the leave of the court, the Government shall provide assistance for reunification of the child with his family.

7.
Right to education
(1)

Every child shall be entitled to education the provision of which shall be the responsibility of the Government and the parents.

(2)

Every child shall be entitled to free basic education which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the Child.

8.
Right to religious education
(1)

Every child shall have a right to religious education subject to appropriate parental guidance.

(2)

The Minister shall make regulations giving effect to the rights of children from minority communities to give fulfillment to their culture and to practice their own language or religion.

9.
Right to health care

Every child shall have a right to health and medical care the provision of which shall be the responsibility of the parents and the Government.

10.
Protection from child labour and armed conflict
(1)

Every child shall be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.

(2)

No child shall take part in hostilities or be recruited in armed conflicts, and where armed conflict occurs, respect for and protection and care of children shall be maintained in accordance with the law.

(3)

It shall be the responsibility of the Government to provide protection, rehabilitation care, recovery and re-integration into normal social life for any child who may become a victim of armed conflict or natural disaster.

(4)

The Minister shall make regulations in respect of periods of work and legitimate establishments for such work by children above the age of sixteen years.

(5)

In this Act child labour refers to any situation where a child provides labour in exchange for payment and includes—

(a)

any situation where a child provides labour as an assistant to another person and his labour is deemed to be the labour of that other person for the purposes of payment;

(b)

any situation where a child’s labour is used for gain by any individual or institution whether or not the child benefits directly or indirectly; and

(c)

any situation where there is in existence a contract for services where the party providing the services is a child whether the person using the services does so directly or by agent.

11.
Name and nationality

Every child shall have a right to a name and nationality and where a child is deprived of his identity the Government shall provide appropriate assistance and protection, with a view to establishing his identity.

12.
Disabled child

A disabled child shall have the right to be treated with dignity, and to be accorded appropriate medical treatment, special care, education and training free of charge or at a reduced cost whenever possible.

13.
Protection from abuse, etc
(1)

A child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person.

(2)

Any child who becomes the victim of abuse, in the terms of subsection (1), shall be accorded appropriate treatment and rehabilitation in accordance with such regulations as the Minister may make.

14.
Protection from harmful cultural rites, etc

No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.

15.
Protection from sexual exploitation

A child shall be protected from sexual exploitation and use in prostitution, inducement or coercion to engage in any sexual activity, and exposure to obscene materials.

16.
Protection from drugs

Every child shall be entitled to protection from the use of hallucinogens, narcotics, alcohol, tobacco products or psychotropic drugs and any other drugs that may be declared harmful by the Minister responsible for health and from being involved in their production, trafficking or distribution.

17.
Leisure and recreation

A child shall be entitled to leisure, play and participation in cultural and artistic activities.

18.
Torture and deprivation of liberty
(1)

No child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.

(2)

Notwithstanding the provisions of any other law, no child shall be subjected to capital punishment or to life imprisonment.

(3)

A child offender shall be separated from adults in custody.

(4)

A child who is arrested and detained shall be accorded legal and other assistance by the Government as well as contact with his family.

19.
Right to privacy

Every child shall have the right to privacy subject to parental guidance.

20.
Penalties

Notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in sections 5 to 19 such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.

21.
Duties and responsibilities of a child

In the application of the provisions of this Act, and in any matter before a court of law concerning any child, due regard shall be had to the duties and responsibilities of a child to—

(a)

work for the cohesion of the family;

(b)

respect his parents, superiors and elders at all times and assist them in case of need;

(c)

serve his national community by placing his physical and intellectual abilities at its service;

(d)

preserve and strengthen social and national solidarity; and

(e)

preserve and strengthen the positive cultural values of his community in his relations with other members of that community:

Provided that in reckoning the requisite duty and responsibility of any individual child, due regard shall also be had to the age and ability of such child and to such limitations as are contained in this Act.

22.
Enforcement of rights
(1)

Subject to subsection (2), if any person alleges that any of the provisions of sections 4 to 19 (inclusive) has been, is being or is likely to be contravened in relation to a child, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress on behalf of the child.

(2)

The High Court shall hear and determine an application made by a person in pursuance of 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 sections 4 to 19 (inclusive).

(3)

The Chief Justice may make 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.

PART III – PARENTAL RESPONSIBILITY
23.
Definition of parental responsibility
(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.

(2)

The duties referred to in subsection (1) include in particular—

(a)

the duty to maintain the child and in particular to provide him with—

(i) adequate diet;
(ii) shelter;
(iii) clothing;
(iv) medical care including immunisation; and
(v) education and guidance;
(b)

the duty to protect the child from neglect, discrimination and abuse;

(c)

the right to—

(i) give parental guidance in religious, moral, social, cultural and other values;
(ii) determine the name of the child;
(iii) appoint a guardian in respect of the child;
(iv) receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child;
(v) arrange or restrict the emigration of the child from Kenya;
(vi) upon the death of the child, to arrange for the burial or cremation of the child.
(3)

The Minister may make regulations for the better discharge of parental responsibility by parents whose work conditions result in the separation from their children for prolonged periods.

(4)

The fact that a person has or does not have parental responsibility shall not affect—

(a)

any obligation which such person may have in relation to the child (such as a statutory duty to maintain the child); or

(b)

any rights which in the event of the child’s death, such person (or any other person) may have in relation to the child’s property.

(5)

A person who does not have parental responsibility for a particular child, but has care and control of 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.

24.
Who has parental responsibility
(1)

Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child 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.

(2)

Where a child’s father and mother were not married to each other at the time of the child’s birth and have subsequently married each other, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility.

(3)

Where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other—

(a)

the mother shall have parental responsibility at the first instance;

(b)

the father shall subsequently acquire parental responsibility for the child in accordance with the provisions of section 25.

(4)

More than one person may have parental responsibility for the same child at the same time.

(5)

A person who has parental responsibility for a child at any time shall not cease to have that responsibility for the child.

(6)

Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.

(7)

The fact that a person has parental responsibility for a child may not entitle that person to act in any way which would be incompatible with any order made with respect to the child under this Act.

(8)

(a)

A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.

(b)

The person with whom such arrangement is made may himself be a person who already has parental responsibility for the child concerned.

(c)

The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of such person’s parental responsibility for the child concerned.

25.
Acquisition of parental responsibility by father
(1)

Where a child’s father and mother were not married at the time of his birth—

(a)

the court may, on application of the father, order that he shall have parental responsibility for the child; or

(b)

the father and mother may by agreement (“a parental responsibility agreement”) provide for the father to have parental responsibility for the child.

(2)

Where a child’s father and mother were not married to each other at the time of his birth but have subsequent to such birth cohabited for a period or periods which amount to not less than twelve months, or where the father has acknowledged paternity of the child or has maintained the child, he shall have acquired parental responsibility for the child, notwithstanding that a parental responsibility agreement has not been made by the mother and father of the child.

26.
Parental responsibility agreement, etc
(1)

A parental responsibility agreement shall have effect for the purposes of this Act if it is made substantially in the form prescribed by the Chief Justice.

(2)

A parental responsibility agreement may only be brought to an end by an order of the court made on application by—

(a)

any person who has parental responsibility for the child; or

(b)

the child himself with the leave of the court.

(3)

The Court may only grant leave under subsection (2)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.

27.
Transmission of parental responsibility
(1)

Where the mother and father of a child were married to each other at the time of the birth of the child or have subsequently married each other—

(a)

on the death of the mother the father shall exercise parental responsibility for the child either alone or together with any testamentary guardian appointed by the mother;

(b)

on the death of the father, the mother if living shall exercise parental responsibility for the child either alone or together with any testamentary guardian appointed by the father;

(c)

where both the mother and the father of the child are deceased, parental responsibility shall be exercised by—

(i) any testamentary guardian appointed by either of the parents; or
(ii) a guardian appointed by the court; or
(iii) the person in whose power a residence order was made prior to the death of the child’s father and mother, and which order is still in force; or
(iv) a fit person appointed by the court; or
(v) in the absence of the persons specified in paragraphs (i), (ii), (iii) and (iv), a relative of the child.
(2)

Where the father and mother of the child were not married at the time of the birth of the child and have not subsequently married each other—

(a)

on the death of the mother of the child, the father of the child, if he has acquired parental responsibility under the provisions or this Act, shall if he is still living, have parental responsibility for the child either alone or with any testamentary guardian appointed by the mother or the relatives of the mother;

(b)

on the death of the father of a child who has acquired parental responsibility under the provisions of this Act, the mother of the child shall exercise parental responsibility in respect of the child either alone, or with any testamentary guardian appointed by the father;

(c)

the surviving mother or father of the child, as the case may be, 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 and the relatives of the deceased mother or father of the child, may, if they consider the surviving father or mother of the child, as the case may be, to be unfit to exercise parental responsibility for the child, apply to the court to make such appropriate orders as shall be necessary in the circumstances of the case to safeguard the best interests of the child.

28.
Extension of responsibility beyond eighteenth birthday
(1)

Parental responsibility in respect of a child may be extended by the court beyond the date of the child’s eighteenth birthday if the court is satisfied upon application or of its own motion, that special circumstances exist with regard to the welfare of the child that would necessitate such extension being made:

Provided that the order may be applied for after the child’s eighteenth birthday.

(2)

An application under this section may be made by—

(a)

the parent or relative of a child;

(b)

any person who has parental responsibility for the child;

(c)

the Director;

(d)

the child.

29.
Regulations by Chief Justice

The Chief Justice shall make such regulations as shall be necessary for giving effect to any of the provisions of this Part.

PART IV – ADMINISTRATION OF CHILDREN’S SERVICES

The National Council for Children’s Services

30.
Establishment of National Council for Children’s Services
(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.

(2)

The Council shall be capable in its corporate name of—

(a)

suing and being sued;

(b)

taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property;

(c)

borrowing and lending money;

(d)

entering into contracts;

(e)

receiving grants and gifts for child related projects; and

(f)

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.

32.
Functions of the Council
(1)

The object and purpose for which the Council is established is to exercise general supervision and control over the planning, financing and co-ordination of child rights and welfare activities and to advise the Government on all aspects thereof.

(2)

Without prejudice to the generality of subsection (1), the Council shall—

(a)

design and formulate policy on the planning, financing and co-ordination of child welfare activities;

(b)

determine priorities in the field of child welfare in relation to the socio-economic policies of the Government;

(c)

plan, supervise and co-ordinate public education programmes on the welfare of children;

(d)

facilitate donor funding of child welfare projects;

(e)

co-ordinate and control the disbursement of all funding that may be received by the Council for child welfare projects;

(f)

provide technical and other support services to agencies participating in child welfare programmes;

(g)

prescribe training requirements and qualifications for authorised officers;

(h)

ensure the enhancement of the best interests of children among displaced or unaccompanied children held in care, whether in refugee camps or in any other institution;

(i)

ensure the full implementation of Kenya’s international and regional obligations relating to children and facilitate the formulation of appropriate reports under such obligations;

(j)

participate in the formulation of policies on family employment and social security, that are designed to alleviate the hardships that impair the social welfare of children;

(k)

work towards the provision of social services essential to the welfare of families in general and children in particular;

(l)

consider and approve or disapprove child welfare programmes proposed by charitable children’s institutions in accordance with section 69;

(m)

formulate strategies for the creation of public awareness in all matters touching on the rights and welfare of children;

(n)

set criteria for the establishment of children’s institutions under this Act;

(o)

design programmes for the alleviation of the plight of children with special needs or requiring special attention;

(p)

establish panels of persons from whom guardians ad litem appointed by the court may be selected by the court to assist the Minister in carrying out his duties under this Act and in particular in the appointment of any officers prescribed under this Act, in the establishment of children’s institutions and the formulation of any regulations that may be provided under this Act;

(q)

establish Area Advisory Councils to specialise in various matters affecting the rights and welfare of children;

(r)

create linkages and exchange programmes with other organisations locally and abroad;

(s)

endeavour to create an enabling environment for the effective implementation of this Act.

33.
Power of the Council

The Council shall have power for the purpose of carrying out its functions, 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 alone or in association with other persons or bodies.

34.
Co-option and committees

The Council may co-opt members or regional representatives or appoint committees as it deems fit for the specialised aspects of its functions.

35.
Regulations by the Council

The Council may, with the approval of the Minister, make regulations for the purpose of giving effect to the provisions of section 32.

36.
Expenses

The expenses of the Council shall be defrayed out of moneys provided by Parliament or obtained from any other sources for that purpose.

The Director of Children’s Services and Children’s Officers

37.
Appointment of Director, Deputy Directors and Children’s Officers
(1)

The Minister shall appoint a Director of Children’s Services and may also appoint one or more Deputy Directors of Children’s Services and such number of senior children’s officers and other officers as may be necessary to assist the Director in carrying out the purposes of this Act.

(2)

The Director may, subject to any regulations made by the Minister to the contrary, delegate to a Deputy Director or any children’s officer appointed under subsection (1), or any person as the Minister shall deem fit, authority to exercise and perform any of the powers and duties conferred or imposed on the Director under this Act.

(3)

Children’s officers shall perform the functions and exercise the powers conferred on them by this Act and shall, in addition, perform such duties as the Director may from time to time direct.

38.
Functions of Director
(1)

The Director shall safeguard the welfare of children and shall in particular, assist in the establishment, promotion, co-ordination and supervision of services and facilities designed to advance the well being of children and their families.

(2)

Without prejudice to the generality of subsection (1) the Director shall—

(a)

supervise children’s officers and co-ordinate and regulate their work in the provision of children’s welfare services;

(b)

work in collaboration with relevant Government departments and public and private agencies to ensure the efficiency and effectiveness of all social programmes established in the interests of children;

(c)

maintain up-to-date records and data on the management of children’s services in Kenya, indicating the respective degrees of access to welfare amenities applicable to the various categories of children;

(d)

provide the secretariat for the Council, and ensure that all decisions taken by the Council are fully processed and implemented;

(e)

secure the conduct of investigations into cases of hardship affecting children throughout Kenya, and formulate, for the consideration of the Council, proposals for programmes to alleviate the hardships afflicting such children;

(f)

give attention and provide assistance to the acute situations of children in hardship, including disabled children, street children, orphaned and destitute children, children who abuse drugs, children who are sexually abused and children who are affected by domestic violence, and formulate programmes for the consideration by the Council, for the alleviation of the plight of such children;

(g)

make such enquiries and investigations and provide such reports and assessments as may be required by any court or for the enforcement of any order made by a court under this Act;

(h)

provide all necessary assistance to the judicial process, to the intent that court orders in relation to children which require supporting, social and administrative arrangements may achieve fulfillment;

(i)

safeguard the welfare of any child or children placed under care, by virtue of a care order or an interim order;

(j)

provide assistance and procure accommodation for any child not in proper custody, any child who is abandoned or any child who is in need of refuge or safety;

(k)

trace the parents or guardians of any lost or abandoned child, or return a lost or abandoned child to his lawful place of residence;

(l)

intervene on behalf of any child who is in need of care and protection and is in danger of imminent injury or harm, where possible by securing the removal of such child to a place of safety;

(m)

mediate, in so far as permitted under this Act, in family disputes involving children, and their parents, guardians or other persons who have parental responsibility in respect of the children, and promote family reconciliation;

(n)

make arrangements for the assessment of children placed under care and provide counselling, guidance and other support services for children and their families;

(o)

provide care, guidance and other assistance and treatment for children who have been arrested or remanded in police custody or in children’s remand homes, and assist children through court proceedings and children’s hearings;

(p)

supervise all children’s rehabilitation centres, children’s homes and remand homes and safeguard and promote the welfare of any children admitted therein;

(q)

provide quarterly reports on the management of children’s rehabilitation centres, children’s homes and remand homes;

(r)

safeguard the welfare of children in foster care;

(s)

perform any functions prescribed in this Act, or as may be prescribed by any regulations made by the Minister.

(3)

The Director shall have power, for the purpose of carrying out his functions, to do all such acts and things as appear to him to be requisite, advantageous or convenient for or in connection with the carrying out of his functions or incidental to their proper discharge and may carry out any activities in that behalf alone or in association with any other person or institution.

(4)

Without prejudice to the generality of subsection (3), the Director shall have power to—

(a)

appoint and supervise approved officers and foster parents;

(b)

call for information from any individual or institution for the purpose of safeguarding the interests of children in accordance with this Act;

(c)

take over arrangements of proceedings before any public institution or court, involving children, being conducted by a different person as may be authorised under the law.

39.
Penalty for obstruction

A person who obstructs the Director or a children’s officer in the execution of his duties or powers under this Act commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term of twelve months in default, or to both.

The Role of Local Authorities

40.
The role of local authorities

It shall be the general duty of every local authority—

(a)

to safeguard and promote the rights and welfare of children within its jurisdiction;

(b)

to promote the good up-bringing of children by their families, through the establishment of suitable family-oriented programmes, and through the creation of a department to deal with the rights and welfare of children, public awareness and the co-ordination of relevant programme support initiatives from different social sub-sectors.

41.
Appointed local authorities

The Director may from time to time, appoint a local authority for the purposes of this Act and a local authority so appointed shall, subject to the provisions of section 43, perform the duties imposed and have the powers conferred upon appointed local authorities under this Act.

42.
Local authority welfare schemes

A local authority either by itself or jointly with other local authorities shall make welfare schemes for children embracing any or all of the items set out in the Second Schedule to this Act and the Director may by order appoint such local authority or joint local authorities to be an appointed local authority for the purposes and to the extent set out in such schemes.

43.
Delegation of powers and duties by appointed local authorities
(1)

Where any powers or duties are by this Act conferred or imposed on an appointed local authority, those powers and duties shall—

(a)

in the case of a child who has his home in a municipality or within a township, be powers and duties of the municipal council;

(b)

in a county outside a municipality or township, the powers and duties of the county council.

(2)

Where, for any district, there is, for the time being, no appointed local authority having jurisdiction therein, the Minister may with the concurrence of the Treasury, by order appoint the District Commissioner of the district to have the functions of an appointed local authority under this Part, and have the powers imposed and conferred upon appointed local authorities by this Act in respect of all children having their homes within the district.

44.
Delegation of functions of county councils
(1)

A county council which is an appointed local authority may, with the concurrence of the Council, delegate a county division, with or without restrictions or conditions, any of its functions as an appointed local authority.

(2)

Where functions are delegated to the council of a county division under this section, such council, in the discharge of those functions, shall act as agent for the county council.

45.
Delegation to charitable children’s institution

An appointed local authority may, with the approval of the Director, delegate its powers and duties relating to the investigations under section 120(12)(d) to a charitable children’s institution or an approved officer.

46.
Powers of local authorities to incur expenditure in temporary care

Any local authority, whether an appointed local authority or not, and any District Commissioner may incur expenditure in or about the temporary care of any child in need of care including his maintenance in a place of safety or in the return of any such child to his parent or guardian or to the area of the appointed local authority, if any, notwithstanding that in the case of an appointed local authority such a child has not been committed to its care under the provisions of this Act.

PART V – CHILDREN’S INSTITUTIONS

Rehabilitation Schools and Remand Homes

47.
Establishment of rehabilitation schools
(1)

The Minister may establish such number of rehabilitation schools (hereinafter referred to as “rehabilitation school”) as he may consider necessary to provide accommodation and facilities for the care and protection of children.

(2)

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 Minister to approve the institution for that purpose and the Minister may, by notice in the Gazette declare the institution to be a rehabilitation school and issue a certificate of approval to the manager.

(3)

If at any time the Minister is dissatisfied with the condition or management of a rehabilitation school he may—

(i) subject the manager to disciplinary proceedings; or
(ii) request him in writing to show cause why the certificate of approval should not be withdrawn, and upon the expiration of the notice to show cause, if the manager has not responded, the certificate of approval shall be deemed to have been withdrawn and the school shall cease to be a rehabilitation school:

Provided that the Minister, instead of withdrawing the certificate of approval, may by notice served on the manager of the school, prohibit further admission of persons to the school for such time as may be specified in the notice until the notice is revoked.

(4)

If the Minister is satisfied or considers the continuation of a rehabilitation school to be unnecessary, he may give to the manager not less than six months notice in writing of his intention to withdraw the certificate of approval, and upon the expiration of the notice the certificate of approval shall be deemed to have been withdrawn and the school shall cease to be a rehabilitation school.

(5)

The manager of a rehabilitation school may, after giving not less than six months’ notice in writing to the Minister of his intention so to do, surrender the certificate of approval of the school, and upon the expiration of the notice (unless the notice is previously withdrawn) the certificate shall be deemed to have been surrendered and the rehabilitation school shall cease to be approved.

(6)

No child shall be received into a rehabilitation school under the provisions of this Act after notice has been given of intention to withdraw or surrender the certificate of approval, but obligations of the manager with respect to children under his care at the date of the notice shall continue until the withdrawal or surrender takes effect.

(7)

The Minister shall cause any notice of intention to withdraw or surrender a certificate of approval to be published in the Gazette.

48.
Separate sections in the rehabilitation schools

A rehabilitation school shall have separate sections for children of different sexes, and age categories, and separate sections for children offenders and children in need of care and protection.

49.
Obligation of managers

The manager of a rehabilitation school shall be bound to accept every child who is duly sent or transferred to the school or otherwise committed to his care, unless—

(a)

the school is an institution for persons of a different religion or of a different sex from that of the child whom it is proposed to send or transfer there; or

(b)

the manager of the school satisfies the Minister that it is undesirable that any more children should be admitted to the school or otherwise committed to the manager’s care.

50.
Establishment of children’s remand homes
(1)

The Minister may establish such children’s remand homes as he considers necessary.

(2)

The manager of any government 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 such manager and the Minister.

51.
Supervision of rehabilitation schools and children’s remand homes

The Director shall be responsible for the supervision of all rehabilitation schools and children’s remand homes and for this purpose shall periodically visit them or cause them to be visited.

52.
Leave of absence

The manager of a rehabilitation school may, with the authority of the Director, grant leave of absence to any child staying in that rehabilitation school for such period and on such conditions as he may deem fit and may at any time terminate such leave and direct the child to return to the school.

53.
Revocation of children’s committal order
(1)

If at any time during the period of a child’s stay at a rehabilitation school the Director is satisfied that such child should not remain subject to the applicable committal order, he may refer the matter to the Children’s Court for revocation of the committal order.

(2)

A Children’s Court may at any time, on its own motion or on the application of any person, revoke an order committing a child to a rehabilitation school, but before doing so it shall call for all the relevant records of the court which made the order, and all relevant records of any court which may previously have considered an application under this section.

(3)

Notwithstanding anything in this Act, an order committing a child to a rehabilitation school shall not remain in force beyond the date on which the child attains the age of eighteen years, nor shall any such order remain in force for longer than three years at a time except by order of the court.

(4)

On an application for an order under subsection (2) or subsection (3) the manager of the rehabilitation school where the child is, shall cause the child to be brought before the court, unless the court otherwise orders.

54.
Transfers and supervision after release
(1)

The Director may at any time order a child to be transferred from one rehabilitation school to another, but the period of his rehabilitative care shall not be increased thereby.

(2)

A child committed to a rehabilitation school shall, after the expiration of the prescribed period of his stay, be under the supervision of such person as the Director shall appoint, for a period of two years, or until he attains the age of twenty-one years whichever shall be the shorter period.

55.
Treatment of absconders and children of difficult character
(1)

Where the Director is of the opinion that a child committed to a rehabilitation school is a persistent absconder, is of difficult character or is exercising inappropriate influence on the other children in the school, he may apply to the children’s court having jurisdiction in the place where the school is situated—

(a)

to have the period of committal increased by a period not exceeding six months, if the child is of or below the age of sixteen years; or

(b)

to have the child sent to a borstal institution, if the child is above the age of sixteen years; or

(c)

to have the child provided with appropriate medical treatment or professional counselling, if the child’s conduct is attributable to drug abuse, or if the child is of unsound mind or is suffering from a mental illness.

(2)

The parents of the child or any person who has parental responsibility for the child shall be notified of, and afforded an opportunity to be heard in, any proceedings instituted under this section, unless the court is satisfied that such persons cannot be found or cannot reasonably be expected to attend the proceedings.

(3)

The expenses incurred in committing a child under this section shall be borne by the State:

Provided that a child whose period of committal is increased or who is sent to a borstal institution shall be provided with appropriate professional assistance.

56.
Removal to health institution
(1)

In the case of serious illness of a child staying in a children’s remand home or a rehabilitation school the manager, on the advice of a medical officer or medical practitioner, may make an order for his removal to a health institution.

(2)

Whenever the medical officer in charge of a health institution considers that the health of a child removed to a hospital under the provisions of this section no longer requires treatment therein, he shall notify the manager of the remand home or rehabilitation school from which he was removed to hospital, who shall thereupon cause such a child to be returned to the school if he is still liable to be kept therein.

(3)

Every reasonable precaution shall be taken by the medical officer in charge of the health institution to prevent the escape of any child who is hospitalised therein under this section:

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 of the child concerned.

57.
Authority for confinement in children’s remand homes, rehabilitation school and hospital

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 tenor thereof, or in a health institution under section 56, and a child while confined and while 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, shall be deemed to be in lawful custody.

Charitable Children’s Institutions

58.
Definition of a charitable children’s institution

In this Part a “charitable children’s institution” means a home or institution which has been established by a person, corporate or unincorporate, a religious organisation or a non-governmental organisation and has been granted approval by the Council to manage a programme for the care, protection, rehabilitation or control of children.

59.
Exceptions

A charitable children’s institution shall not include—

(a)

a rehabilitation school established by the Minister under section 47;

(b)

a school within the meaning of the Education Act (Cap. 211);

(c)

a borstal institution;

(d)

any health institution;

(e)

a children’s day care centre, nursery or other similar establishment:

Provided that nothing in this section shall prevent a charitable children’s institution from providing medical care, education or training for children accommodated therein, if the provision of such services has been approved by the Council.

60.
Proof of registration

A non-governmental organisation or a religious organisation which establishes a charitable children’s institution shall be required to show proof of the registration of the organisation under a recognised system of registration of private institutions before applying for approval to implement a child welfare programme.

61.
Institution set up by a person or unincorporated body of persons

Any person or unincorporated body of persons who or which establishes a charitable institution for the care, protection, rehabilitation or control of children shall be required to furnish the Director with a list of the trustees of the institution before applying for approval to implement a child welfare programme.

62.
Criteria for approval of programmes

The Council shall provide the criteria for approval of child welfare programmes of charitable institutions.

63.
Reception of children in a charitable children’s institution
(1)

A child shall be received in the care of a charitable children’s institution if—

(a)

in an emergency situation, 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;

(b)

he is referred to the institution by way of an interim care order or a care order.

(2)

A child who is received by a charitable children’s institution in accordance with subsection (1)(a) shall be brought before a court without delay unless—

(a)

his guardian or parent applies to the Director for his release;

(b)

he is held in accordance with section 120(2);

(c)

it is not in the best interest of the child to do so.

64.
Duty to maintain a child in a charitable children’s institution

A charitable children’s institution in which the child is received, shall provide the child with adequate care and protection for the period of his accommodation therein as provided in the criteria set by the Council.

65.
Director to monitor progress of children
(1)

The Director shall monitor the progress of a child admitted into a charitable children’s institution, until the child is discharged therefrom or until the expiry of a care order made in respect of the child.

(2)

The Director shall ensure that the child is periodically visited and interviewed by an officer authorised by him.

66.
Appointment and powers of approved officers
(1)

A charitable children’s institution may, with the approval of the Director, by notice in the Gazette, appoint one or more persons to be approved officers, to further the purposes of the institution which relate to the care, protection and control of children:

Provided that no approved officer shall enter upon the exercise of his functions as such in the area of any appointed local authority without the concurrence of such authority.

(2)

The appointment of an approved officer may be revoked by the Director on the recommendation of the charitable children’s institution and any such revocation shall be published in the Gazette.

(3)

Approved officers shall have such powers as the Director may prescribe.

67.
Inspection of charitable children’s institutions
(1)

The Director may authorise an officer to inspect a charitable children’s institution, or any other premises which he has cause to believe, are being used to accommodate children who are in need of care and protection.

(2)

Any authorised officer acting in accordance with subsection (1) may at all reasonable times, enter, after producing, if asked to do so, some duly authenticated document showing that he is so authorised to enter, any charitable children’s institution or premises aforesaid and shall in particular—

(a)

interview any child in the institution or premises;

(b)

require the production of an annual report and any records required to be kept in accordance with the regulations made under section 72;

(c)

inspect the conditions and facilities provided by the institution or managers of the premises;

(d)

prepare and submit a report to the Director outlining his findings and recommendations.

(3)

(a)

A refusal to allow any authorised officer referred to in subsection (2) to enter a charitable children’s institution or such premises as are mentioned in subsection (1) to inspect or interview any person in the institution or premises, shall be deemed to be a reasonable cause to suspect that a child in the institution or the premises is being neglected or abused in a manner which causes the child to be in need of care and protection.

(b)

Any person who unlawfully 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 to imprisonment for a term not exceeding twelve months or to a fine not exceeding Kenya shillings fifty thousand or to both.

(4)

Upon receipt of an inspection report the Director may in addition to taking other remedial measures as may be prescribed by the Minister, require a charitable children’s institution to appoint a new management and institute appropriate remedial measures:

Provided that the Director may in consultation with the Area Advisory Council appoint a manager to manage the institution for a period not exceeding two months in order to institute remedial measures.

(5)

The functions and powers of the authorised officer appointed under this section shall be supplementary to and not in derogation of the functions and powers conferred on an inspection committee appointed under section 68.

68.
Inspection committees
(1)

The Minister may appoint an inspection committee to inspect any rehabilitation school, children’s remand home or charitable children’s institution.

(2)

The committee appointed under subsection (1) shall comprise not more than five persons and shall exercise and perform, subject to any directions given by the Minister, the powers and functions specified in the Eighth Schedule.

(3)

Recommendations of the committee shall be reported to the Minister and shall, subject to any directions given by the Minister, be implemented by the Director.

(4)

The Director shall, within six months of the submission of a report by the committee to the Minister, report to the Council on the action taken to implement any recommendations contained in the report.

69.
Duty to notify the Area Advisory Council
(1)

Any charitable children’s institution which intends to implement a child welfare programme shall notify the Area Advisory Council and shall provide full information on the mode of operation and the specific objects of the programme.

(2)

The Area Advisory Council shall submit to the Director particulars of the proposed child welfare programme with recommendations.

(3)

The Director shall place before the Council all information on the proposed child welfare programme supplied by virtue of subsection (2), and the Council may approve or disapprove such programme or part of it taking into account the best interests of children.

(4)

Where the Council disapproves a programme or part of a programme by virtue of subsection (2), any person or organisation who proceeds with it or with the part that is disapproved shall be liable to a fine not exceeding twenty thousand shillings and to an additional one thousand shillings for each day that the disapproved programme remains in operation.

70.
Review of programme

The Director shall, at the end of twelve months beginning with the date of approval of a child welfare programme, and thereafter annually, review the programme in order to advise the Council on whether the programme should continue being in force or be cancelled.

71.
Cancellation of a programme
(1)

The Council, upon the recommendation of the Director, may cancel a programme undertaken by a charitable children’s institution on the grounds that—

(a)

the institution is unfit for the care, protection and control of children; or

(b)

the children admitted into the institution are suffering or are likely to suffer harm; or

(c)

the manager of the institution has contravened any of the regulations made under this Act:

Provided that the Council shall give fifteen days notice of the proposed cancellation.

(2)

Any person aggrieved by the Council’s decision made in accordance with subsection (1) may appeal to the Minister whose decision shall be final.

(3)

When a cancellation under this section takes effect, the Director shall, subject to any directions of the Minister, take such remedial measures as may be necessary to protect the children accommodated in the home.

(4)

The Director may, under subsection (3)—

(a)

remove any child or children from the home;

(b)

procure the closure of the home;

(c)

institute disciplinary measures against the manager of the home; or

(d)

take such other action as may be necessary for the protection of the children.

72.
Regulations

The Minister may, in consultation with the Council, make regulations for the better carrying out of the provisions of this Part and in particular, such regulations may make provision for—

(a)

the requirements of and procedure for approval of children’s welfare programmes;

(b)

the management of remand homes, rehabilitation schools, and charitable children’s institutions;

(c)

requirements as to the accommodation, staff and equipment to be provided in charitable children’s institutions;

(d)

the qualifications of managers;

(e)

the training and remuneration of persons employed in children’s remand homes, and rehabilitation schools;

(f)

the criteria to be applied to limit the number of children who may be accommodated in charitable children’s institutions;

(g)

the education and training of children in charitable children’s institutions;

(h)

religious instruction to children in charitable children’s institutions appropriate to the religious persuasion to which they belong;

(i)

requirements as to arrangements for medical care (including psychiatric and dental health) and for the prevention of infectious and contagious diseases in charitable children’s institutions;

(j)

special care for children with disabilities and children with chronic ailments;

(k)

requirements as to the keeping of records and giving of notices in respect of children received in charitable children’s institutions;

(l)

the conduct of reviews under section 70;

(m)

the conduct of inspections of charitable children’s institutions;

(n)

corrective measures which should be imposed by the Director after inspection of a charitable children’s institution and penalties for non-compliance therewith;

(o)

appeals against decisions made under this Part.

PART VI – CHILDREN’S COURTS
73.
Jurisdiction of Children’s Court

There shall be courts to be known as Children’s Courts constituted in accordance with the provisions of this section for the purpose of—

(a)

conducting civil proceedings on matters set out under Parts III, V, VII, VIII, IX, X, XI and XIII;

(b)

hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years;

(c)

hearing a charge against any person accused of an offence under this Act;

(d)

exercising any other jurisdiction conferred by this or any other written law:

Provided that—

(i) reference to subordinate courts of any class, in the First Schedule to the Criminal Procedure Code (Cap. 75), shall include a Children’s Court;
(ii) 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;
(iii) 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 over eighteen years of age, or 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 eighteen years of age, nothing in this section shall prevent the court, if it thinks fit, from proceeding with the hearing and determination of the case;
(iv) 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 the commission of the offence under eighteen years of age, the High Court shall have power to substitute for the conviction a finding of guilty in accordance with section 196 and substitute for the sentence an order under section 125(2) of this Act.
74.
Sitting of Children’s Court

A Children’s Court shall sit in a different building or room, or at different times, from those in which sittings of courts other than Children’s Courts are held, and no person shall be present at any sitting of a Children’s Court except—

(a)

members and officers of the court;

(b)

parties to the case before the court, their advocates and witnesses and other persons directly concerned in the case;

(c)

parents or guardians of any child brought before the court;

(d)

bona fide registered representatives of newspapers or news agencies;

(e)

such other persons as the court may specially authorise to be present.

75.
Power to clear court

Where in any proceedings in relation to an offence against or by a child, or any conduct contrary to decency or morality, a person who, in the opinion of the court, is under eighteen years of age is called as a witness, the court may direct that all or any persons, not being members or officers of the court, or parties to the case or their advocates, shall be excluded from the court.

77.
Legal aid
(1)

Where a child is brought before a court in proceedings under this Act or any other written law, the court may, where the child is unrepresented, order that the child be granted legal representation.

(2)

Any expenses incurred in relation to the legal representation of a child under subsection (1) shall be defrayed out of monies provided by Parliament.

78.
Reports
(1)

A court while considering any question with respect to a child under this Act, may require to have presented to it a report, either oral or written as the court may direct, on such matters relating to the child as the court may consider necessary; and the court may direct that such report be prepared by such person or persons as the court may designate.

(2)

Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take into account—

(a)

any statement contained in the report; or

(b)

any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering.

79.
Appointment of a guardian ad litem

A court before which a child is brought, and especially where that child is not represented by an advocate, may appoint a guardian ad litem for the purposes of the proceedings in question and to safeguard the interests of the child.

80.
Appeals

Unless otherwise provided under this Act, in any civil or criminal proceedings in a Children’s Court, an appeal shall lie to the High Court and a further appeal to the Court of Appeal.

PART VII – CUSTODY AND MAINTENANCE
81.
Meaning of custody, care and control
(1)

In this Part unless the context otherwise requires—

(a)

“custody” with respect to a child, means so much of the parental rights and duties as relate to the possession of the child;

(b)

“care and control” means actual possession of a child, whether or not that possession is shared with one or more persons;

(c)

“legal custody” means so much of the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order;

(d)

“actual custody” means the actual possession of a child, whether or not that possession is shared with one or more persons.

(2)

Where a person, not having legal custody of a child, has care and control of the child, he shall be under a duty to safeguard the interests and welfare of that child.

(3)

Where a person, not having legal custody of a child, has actual custody he shall be deemed to have care and charge of the child and shall be under a duty to take all reasonable steps to safeguard the interests and welfare of that child.

(4)

In this Act, unless the context otherwise requires, reference to the person under whom a child has his home refers to the person who, disregarding absence of the child at a hospital or boarding school and any other temporary absence, has care and control of that child.

82.
Custody
(1)

A court may, on the application of one or more persons qualified under subsection (3) of this section, make an order vesting the custody of a child in the applicant or, as the case may be, in one or more of the applicants.

(2)

An order under subsection (1) may be referred to as a custody order, and the person to whom custody of the child is awarded is referred to as the custodian of the child.

(3)

Custody of a child may be granted to the following persons—

(a)

a parent;

(b)

a guardian;

(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 three months preceding the making of the application;

(d)

any person who, while not falling within paragraph (a), (b) or (c), can show cause, having regard to section 83, why an order should be made awarding that person custody of the child.

83.
Principles to be applied in making custody order
(1)

In determining whether or not a custody order should be made in favour of the applicant, the court shall have regard to—

(a)

the conduct and wishes of the parent or guardian of the child;

(b)

the ascertainable wishes of the relatives of the child;

(c)

the ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years preceding the application;

(d)

the ascertainable wishes of the child;

(e)

whether the child has suffered any harm or is likely to suffer any harm if the order is not made;

(f)

the customs of the community to which the child belongs;

(g)

the religious persuasion of the child;

(h)

whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether those orders remain in force;

(i)

the circumstances of any sibling of the child concerned, and of any other children of the home, if any;

(j)

the best interest of the child.

(2)

Where a custody order is made giving custody of a child to one party to a marriage, or in the case of joint guardians to one guardian, or in the case of a child born out of wedlock to one of the parents, 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 of possession, jointly with the person who is given custody of the child.

(3)

In any case where a decree for judicial separation or a decree, either nisi or absolute for divorce, is pronounced, and the court pronouncing the decree either nisi or absolute finds 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 except with the leave of the court.

84.
Restriction on removal of a child where applicant has provided home for three years
(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 except with the leave of the court.

(2)

Any person who contravenes subsection (1) commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding ten thousand shillings or to both.

85.
Return of child taken away in breach of section 80
(1)

A court may, on the application of a person from whom a child has been removed in breach of section 84, 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 deem appropriate in the circumstances.

(2)

A court may, on the application of a person who has reasonable grounds for believing that another person is intending to remove a child from the applicant’s custody in breach of section 84, by order direct that other person not to remove the child from the applicant.

(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 shall return the child to the person whose application the order under subsection (1) was made.

(4)

Whenever a court makes a custody order with respect to a child it shall, in addition, give such directions as to any rights of access to the child, and with regard to the maintenance of the child as the court may deem fit.

86.
Disputes between joint custodians

If two persons have parental rights or duty vested in them jointly by a custody order but cannot agree on its exercise or performance, either of them may apply to the court, and the court may make such order regarding the exercise of the right or performance of the duty as it thinks fit.

87.
Revocation of custody order
(1)

A court may, on application, revoke a custody order, provided that before doing so it shall make an order as to who is to have custody of the child thereafter or an appropriate section 114 order.

(2)

The Court shall not proceed to hear an application made for the revocation of a custody order where a previous such application made by the same person has been refused by that or any other court unless—

(a)

in refusing the previous application the court directed that this subsection should not apply; or

(b)

it appears to the court that because of a change in circumstances or for any other reason it is proper to proceed with the application.

(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 maintenance of the child.

(4)

Any other person on whose application an order in respect of access or maintenance was made, or who was required by such an order to contribute towards the maintenance of the child, may apply to a court for the revocation or variation of that order.

(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 otherwise directed by the court.

(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 shall have power, upon application being made, to extend a custody, access or maintenance order beyond the child’s eighteenth birthday, for such period as it shall deem fit.

88.
Interim custody orders
(1)

The court shall have power to make interim custody orders and may from time to time review, suspend or vary such orders.

(2)

An interim custody order shall not be made in respect of a period exceeding twelve months.

89.
Agreement not to be invalid by reason of giving custody to mother

No agreement made between the parents of a child, shall be held to be invalid by reason only of its providing that the father shall give legal custody or actual custody thereof to the mother:

Provided that the court shall not enforce any such agreement if it is of the opinion that it will not be for the benefit of the child to give effect thereto.

Maintenance of Children

90.
Joint maintenance of children

Unless the court otherwise directs, and subject to any financial contribution ordered to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child—

(a)

Where the parents of a child were married to each other at the time of the birth of the child and are both living, the duty to maintain a child shall be their joint responsibility;

(b)

where two or more guardians of the child have been appointed, the duty to maintain the child shall be the joint responsibility of all guardians, whether acting in conjunction with the parents of the child or not;

(c)

where two or more custodians have been appointed in respect of a child it shall be the joint responsibility of all custodians to maintain the child;

(d)

where a residence order is made in favour of more than one person, it shall be the duty of those persons to jointly maintain the child;

(e)

where the mother and father of a child were not married to each other at the time of birth of the child and have not subsequently married, but the father of the child has acquired parental responsibility for the child, it shall be the joint responsibility of the mother and father of the child to maintain that child.

91.
Power to make maintenance order

Any parent, guardian or custodian, of the child, may apply to the court to determine any matter relating to the maintenance of the child and to make an order that a specified person make such periodical or lump sum payment for the maintenance of a child, in this Act referred to as a “maintenance order,” as the court may see fit:

Provided that—

(a)

on the making, varying, or discharging of a residence, guardianship or custody order, the court may make a maintenance order for a child even though no application has been made by any person;

(b)

a person who has attained the age of eighteen years may, with the leave of the court, apply to the court for a maintenance order to be made in his favour in the following circumstances—

(i) The person is or will be involved in education and training which will extend beyond the person’s eighteenth birthday; or
(ii) the person is disabled and requires specialised care which will extend beyond the person’s eighteenth birthday; or
(iii) the person is suffering from an illness or ailment and will require medical care which will extend beyond the person’s eighteenth birthday; or
(iv) other special circumstances exist which would warrant the making of the order.
92.
Maintenance during matrimonial proceedings

The court shall have power to make a maintenance order, whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by the parent of a child, or during proceedings or after a final decree is made in such proceedings:

Provided always that once proceedings for the maintenance of a child have been commenced under this Act or any other Act, no subsequent or other proceedings with respect to the maintenance of that child may be commenced under any other Act without the leave of the court.

93.
Financial provisions

The court may order the person against whom a maintenance order is made to make a financial provision for the child by—

(i) periodical payments; or
(ii) such lump sum payment as the court shall deem fit, to the person in whose favour the order is made or to any other person appointed by the Court.
94.
Financial provisions by step-parents and father of child born out of wedlock
(1)

The Court may order financial provision to be made by a parent for a child including a child of the other parent who has been accepted as a child of the family and in deciding to make such an order the court shall have regard to the circumstances of the case and without prejudice to the generality of the foregoing, shall be guided by the following considerations—

(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 foreseeable future;

(b)

the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;

(c)

the financial needs of the child and the child’s current circumstances;

(d)

the income or earning capacity, if any, property and other financial resources of the child;

(e)

any physical or mental disabilities, illness or medical condition of the child;

(f)

the manner in which the child is being or was expected to be educated or trained;

(g)

the circumstances of any of the child’s siblings;

(h)

the customs, practices and religion of the parties and the child;

(i)

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 has assumed that responsibility and the length of the period during which he has met that responsibility;

(j)

whether the respondent assumed responsibility for the maintenance of the child knowing the child was not his child, or knowing that he was not legally married to the mother of the child;

(k)

the liability of any other person to maintain the child;

(l)

the liability of that person to maintain other children.

95.
Power to order maintenance monies to be paid to person other than the applicant

Whenever a maintenance order is made under this section the court may, at the time of making the order, or from time to time thereafter, on being satisfied that the person in whose favour the order is made—

(a)

is not a fit or proper person to receive any maintenance monies specified in the order in respect of a child; or

(b)

has left the jurisdiction of the court for an indefinite period, or is dead, or is incapacitated or has become of unsound mind, or has been imprisoned or has been declared bankrupt; or

(c)

has misappropriated, misapplied or mismanaged any maintenance monies paid to him for the benefit of the child,

appoint any other person whom it considers fit and responsible to receive and administer any maintenance monies required to be paid under a maintenance order, or order the person required to make a payment of the maintenance monies under this section to secure the whole or any part of it by vesting the sums or any other property and subject thereto in trust for the child.

96.
Duration of financial provisions
(1)

A maintenance order requiring that a financial provision in respect of a child be paid by periodical payments may commence on the date of the application or such later date as the court may direct, but will not remain in force beyond the child’s eighteenth birthday, subject to the provisions of section 91.

(2)

An order for periodical payment shall be reviewed by the court upon the death of the person who is liable to make the payment.

97.
Interim orders

A court shall have power to make an interim maintenance order and in so doing may dispense with any notice that may be prescribed to be given to any person, if it is satisfied that it is in the best interests of the child so to do.

98.
Other maintenance provisions

A court shall have power to make an order and to give directions regarding any aspect of the maintenance of a child, including but not limited to, matters relating to the provision of education, medical care, housing and clothing for the child; and in this behalf may make an order for financial provisions for the child.

99.
Power to impose conditions and to vary order

The court shall have power to impose such conditions as it thinks fit to an order made under this section and shall have power to vary, modify or discharge any order made under section 98 with respect to the making of any financial provision, by altering the times of payments or by increasing or diminishing the amount payable or may temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the court thinks fit.

100.
Power to vary maintenance agreements

Where the parents, guardians or custodians of a child, have entered into an agreement whether oral or written in respect of the maintenance of the child the court may, upon application, vary the terms of the agreement if it is satisfied that such variation is reasonable and in the best interests of the child.

Enforcement of Maintenance Orders and Contribution Orders

101.
Enforcement of maintenance orders and contribution orders
(1)

Any person, including the child in whose favour a maintenance order has been made pursuant to section 91, may apply to the court for the enforcement of the order under this section, if the person against whom the order is made has failed to comply with any provision contained in a maintenance order or has defaulted in any payment specified by the order, for the recovery of any arrears with regard to any financial provision stipulated in the order.

(2)

Where a contribution order has been made under section 144 of this Act, a person or an institution in whose favour the order has been made may apply to the court under this section for the enforcement of the order and for the recovery of any arrears from the person required to make a contribution to the maintenance of the child.

(3)

Unless otherwise directed by the court, notice of proceedings under this section shall be served on the respondent who may be summoned or arrested on a warrant issued by the court.

(4)

Prior to the making of an order under this section, the court may hold an enquiry as to the means of the respondent who shall, whenever possible, be present and where such enquiry is held the court may direct that—

(a)

enquiries be made as to the means of the respondent by such person as the court may direct; or

(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

(c)

a statement of means from the respondent’s employer, or auditors or from such other person as the court shall direct, be availed to the court.

(5)

Where the court is satisfied that the respondent has failed to make payment of any financial provision under a maintenance order or a contribution order, the court may—

(a)

order that any arrears in respect of any maintenance monies or contribution monies as the case may be, be paid forthwith, or by instalments or within such other period as shall be specified by the court;

(b)

order the remission of the arrears, but the court shall not make an order of this nature without prior notice to the child, or the person or institution as the case may be, in favour of whom the maintenance order or contribution order has been made and without allowing them a reasonable opportunity to make representations;

(c)

issue a warrant for distress on the respondent’s property forthwith or postpone the issue of the warrant until such time as the court may direct, or on such conditions as the court may deem fit and order the attachment of the respondent’s earnings including any pension payable to the defaulter if the court is satisfied that—

(i) the failure to make payment was due to the wilful refusal or culpable neglect of the respondent; and
(ii) the respondent is gainfully employed or is engaged in some business enterprise or undertaking or owns property from which he derives an income:

Provided that the court shall not, unless special circumstances exist, make an order for the attachment of the respondent’s earnings in an amount which shall exceed more than 45% of the respondent’s annual income in any period of twelve months;

(d)

order the detention, attachment, preservation or inspection of any property of the respondent and, for all or any of the purposes aforesaid, authorise 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;

(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 has occurred and on an application, the court may make orders for the re-sale of the said property to any person and may direct the proceeds of such sale to be applied to the settlement of any arrears of maintenance monies and to the payment of future maintenance monies for the child concerned;

(f)

restrain by way of an injunction the disposition, wastage or damage of any property belonging to the respondent.

(6)

The court shall not make an order under subsection (5)paragraph (c), (d), (e) or (f) unless satisfied that—

(a)

the respondent has wilfully 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

(b)

the respondent, with the intent to obstruct or delay the execution of any order that may be passed against him under this section or with the object of reducing his means to provide maintenance for the child—

(i) is about to dispose of most or the whole of his property; or
(ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court; or
(iii) is about to abscond or leave the local limits of the jurisdiction of the court.
(7)

The court shall have power under this section to issue a warrant committing the respondent to imprisonment for a period of not less than five days nor more than four weeks:

Provided that the court shall not issue a warrant for imprisonment unless it is satisfied that—

(a)

the respondent has persistently and wilfully refused or neglected to make payment of all or any part of the monies ordered to be paid under a maintenance order or a contribution order without reasonable cause;

(b)

the respondent is present at the hearing;

(c)

an order for attachment of earning would not be appropriate;

(d)

it has enquired into the cause of the default and is satisfied that such default was due to the respondent’s wilful refusal or culpable neglect.

(8)

The issue of the warrant 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 if requested by the defaulter, and a further review by the court.

(9)

The court shall have power to vary, modify or discharge any order made under this section.

PART VIII – GUARDIANSHIP
102.
Appointment of guardian
(1)

For the avoidance of doubt, in this Part, “guardian” means a person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the provisions of this Act.

(2)

A guardian may be appointed in respect of any child who is resident in Kenya whether or not the child was born in Kenya or is a Kenyan citizen.

(3)

A guardian appointed under this Act need not be a Kenyan citizen or resident in Kenya.

(4)

A guardian may be appointed in respect of the person or the estate of the child or both.

(5)

Where a guardian is appointed only in respect of the estate of the child, he need not have actual custody of the child but he shall have—

(a)

the power and responsibility to administer the estate of the child and in particular to receive and recover and invest the property of the child in his own name for the benefit of the child;

(b)

the duty to take all reasonable steps to safeguard the estate of the child from loss or damage;

(c)

the duty to produce and avail accounts in respect of the child’s estate to the parent or custodian of the child or to such other person as the court may direct, or to the court, as the case may be, on every anniversary of the date of his appointment;

(d)

to produce any account or inventory in respect of the child’s estate when required to do so by the court.

103.
Rights of surviving parent as to guardianship and power of court
(1)

On the death of the father of a child, the mother if surviving shall, subject to the provisions of this Act, be the guardian of the child and when 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.

(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 any guardian appointed by the mother or if the guardian appointed by the mother is dead or refuses to act, the court may appoint a guardian to act jointly with the father.

104.
Appointment of testamentary guardian
(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.

(2)

A guardian of a child may by will or deed appoint another individual to take his place as the guardian of the child in the event of his death.

(3)

Any appointment made under subsection (1) or (2) shall not have effect unless—

(a)

in the case of an appointment by deed, the deed is dated and is signed by the person making the appointment and in the presence of two witnesses;

(b)

in the case of an appointment made by a written will, it is made, executed and attested in accordance with the provisions of section 11 of the Law of Succession Act (Cap. 160), or an appointment made in the course of an oral will if it is made in accordance with section 9 of that Act.

(4)

A guardian so appointed shall act jointly with the surviving parent of the child as long as that parent remains alive, unless the parent objects to his so acting.

(5)

If the surviving parent objects to such joint guardianship, or if the guardian appointed considers that the parent is unfit to have legal custody of the child, the guardian or parent of the child may apply to the court which may—

(a)

refuse to make any order in which case the parent shall remain the sole guardian; or

(b)

make an order that the guardian shall act jointly with the parent; or

(c)

make an order appointing a relative of the child or a person who is willing to so act, a guardian of the child, to act jointly with the parent or guardian or both of them; or

(d)

make an order that the guardian shall be the sole guardian of the child, in which case the court shall make such order regarding the custody of the child and the rights of contact thereto of his parent and relatives, having regard to the welfare of the child as it may think fit, and further order that the parent shall pay the guardian a financial provision towards the maintenance of the child having regard to the means of the parent, as the court may consider reasonable:

Provided that the court shall not appoint the guardian, sole guardian for the child if he is not a relative of the child, unless exceptional circumstances exist with regard to the welfare of the child.

(6)

Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly.

(7)

If under subsection (5) a guardian has been appointed by the court to act jointly with the surviving parent, he shall continue to act as guardian after the death of the parent, but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the parent.

(8)

Any person, not being a parent of a child, in whose favour an existing custody order or a 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 the guardian shall be entitled to apply to court for an order giving effect to some other arrangement.

105.
Appointment of guardian by the court

In addition to the powers of the court to appoint a guardian under subsection (5) of section 104 the court may appoint a guardian in the following circumstances—

(a)

On the application of any individual, where the child’s parents are no longer living, or cannot be found and the child has no guardian and no other person having parental responsibility for him;

(b)

on the application of any individual, where the child is a displaced child within the meaning of section 119 of this Act.

106.
Guardians revocation and disclaimer
(1)

An appointment under section 104 revokes an earlier appointment (including one 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 later appointment is to appoint an additional guardian.

(2)

An appointment under section 104(including one made in an unrevoked will or codicil) is revoked if the person who made the appointment revokes it by a dated instrument which is signed—

(a)

by him; or

(b)

at his direction, in his presence and in the presence of two witnesses who each attest to the signature.

(3)

For the avoidance of doubt, an appointment under section 104 is revoked if the will or codicil is revoked.

(4)

A person who is appointed a guardian under section 104 or 105 may disclaim his appointment by an instrument signed by him and made within reasonable time of his first knowing that the appointment has taken effect.

(5)

Where regulations are made by the Chief Justice prescribing the manner in which such disclaimer must be recorded, no such disclaimer shall have effect unless it is recorded in the prescribed manner.

(6)

Any appointment of a guardian may be brought to an end at any time by order of the court on the application of—

(a)

any parent or guardian; or

(b)

the child concerned, with the leave of the court; or

(c)

a relative of the child,

in any proceedings if the court considers that it should be brought to an end even though no application has been made.

(7)

Where a court revokes an appointment of guardian the court shall prior to doing so, ascertain who would have guardianship or legal custody of the child if, on the revocation of the appointment of the guardian, no further order was made.

107.
Extension of appointment of guardian beyond child’s eighteenth birthday
(1)

The appointment of a guardian shall be determined upon the child attaining the age of eighteen years, unless exceptional circumstances exist that would require a court to make an order that the appointment be extended.

(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 the 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.

(3)

Where an order is made under subsection (1), it shall be made prior to the child’s eighteenth birthday and may be made on an application by—

(i) the child; or
(ii) the parent or guardian of the child; or
(iii) a relative of the child; or
(iv) the Director:

Provided that no order shall be made without the consent of the child, if he is capable of giving such consent, and of the guardian whose appointment is required to be extended.

(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.

(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.

108.
Disputes between guardians
(1)

Where two or more persons act as joint guardians to a child, or where the surviving parent and a guardian act jointly and they are unable to agree on any question affecting the welfare of the child, any of them may apply to the court for its direction, and the court may make orders regarding the matters of difference as it may think proper.

(2)

A relative of the child, or the child, or the Director, or a person who has parental responsibility for the child, or a person who has been authorised to act jointly with a guardian under sections 104 and 105, may with the leave of the court, apply to the court for its directions or settlement of any question affecting the welfare of the child arising from or connected with the exercise of the guardian’s parental responsibility with respect to the child, and the court may make such order regarding the matters in contention as it may think proper.

109.
Powers of guardian

A guardian appointed under section 105 shall have the same powers over the estate and the person, or over the estate, as the case may be, of a child, as a guardian appointed by deed or will or otherwise under the Law of Succession Act (Cap. 160).

110.
Neglect or misapplication of assets by guardians of the estate of the child

Where a guardian of the estate of a child, whether or not that guardian is also a guardian of the person of the child, neglects to recover or safeguard, or misplaces any asset forming part of the estate of the child, or subjects the estate to loss or damage, he shall whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.

111.
Offence by guardians of the estate of a child

Any guardian of the estate of a child who—

(a)

wilfully or recklessly neglects to receive and safeguard any asset forming part of the estate, misapplies any such asset or subjects any such asset to loss, waste or damage; or

(b)

wilfully fails to produce to the court, or the parent or guardian of the child any account or inventory required by the provisions of section 102; or

(c)

wilfully or recklessly produces any such inventory or account which is false in any material particular,

shall be guilty of an offence and shall be liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.

112.
Rules

The Chief Justice shall make rules of Court directing the manner in which applications to the court are to be made and generally providing for matters of procedure and incidental matters arising under this Part.

PART IX – JUDICIAL ORDERS FOR THE PROTECTION OF CHILDREN
113.
Power of court to make orders in certain proceedings
(1)

The court may make any order mentioned in this Part in any proceedings concerning the welfare and upbringing of a child instituted under this Act or under any other written law.

(2)

Persons qualified to apply for an order under this Part for the protection of a child include—

(a)

the child;

(b)

the parent, guardian or custodian of the child;

(c)

a relative of the child;

(d)

the Director; and

(e)

an authorised officer:

Provided that a qualified person may apply for more than one order at the same time, but the court shall not make more than one order in response to the application if to do so would be detrimental to the interest of a child, or if the desired effect of the orders sought by the applicant may be achieved by making only one order.

(3)

The court may make an order under this Part—

(a)

containing directions as to how it should be carried out; and/or

(b)

imposing conditions that must be complied with; and/or

(c)

defining its duration; and/or

(d)

attaching such supplementary or consequential provisions as the court may think fit.

(4)

An application for an order under this Part may be made separately or as part of any proceedings under this Act.

(5)

Subject to the provisions of this Act, any order made under this Part shall cease to have effect upon the child attaining the age of eighteen years.

114.
Orders which court may make

The court may from time to time make any of the following orders in this Act referred to as “section 114 orders”—

(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 133;

(b)

a “residence order”, which shall require a child to reside with a person named in the order and/or determine the arrangements to be made to facilitate the residence of the child with the person named in the order;

(c)

an “exclusion order” requiring a person who has used violence or threatened to use violence against a child, whether or not that person permanently resides with the child, to depart from the home in which the child is residing or to restrain the person from entering the home or a specified part of the home or from a specified area in which the home is included, or 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;

(d)

a “child assessment order” requiring a child 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;

(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;

(f)

a “wardship order” requiring that a child be placed under the protection and custody of the court;

(g)

a “production order” requiring any person who is harbouring, concealing or otherwise unlawfully detaining a child, or who intends to remove a child from Kenya or from the local limits of the jurisdiction of the court, to disclose any information regarding the whereabouts of the child and/or to produce the child before the court and/or restraining the person from removing the child from the jurisdiction of the court for such period as the court may specify.

115.
Power of arrest

Where a court makes an order under paragraphs (c), (d) and (g) of section 114, 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 shall contravene any stipulation or condition contained in the order, whilst the order remains in force.

116.
Penalty

Any person who contravenes an order made under paragraphs (c), (d) and (g) of section 114 or who obstructs or unlawfully interferes with a person appointed by the court in the execution of his duties under an order made pursuant to subsections (e) and (f) of section 114, commits an offence and shall be liable upon conviction to a fine not exceeding fifty thousand shillings or to imprisonment for a period not exceeding six months, or to both.

117.
Review, etc., of order

The court may from time to time review, vary, suspend or discharge any order made under this Part or revive an order after it has been suspended or discharged.

PART X – CHILDREN IN NEED OF CARE AND PROTECTION
118.
Jurisdiction of the court

A Children’s Court shall have jurisdiction to make an order or give a 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 area of jurisdiction of the court.

119.
When a child is in need of care and protection
(1)

For the purposes of this Act, a child is in need of care and protection—

(a)

who has no parent or guardian, or has been abandoned by his parent or guardian, or is destitute; or

(b)

who is found begging or receiving alms; or

(c)

who has no parent or the parent has been imprisoned; or

(d)

whose parents or guardian find difficulty in parenting; or

(e)

whose parent or guardian does not, or is unable or unfit to exercise proper care and guardianship; or

(f)

who is truant or is falling into bad associations; or

(g)

who is prevented from receiving education; or

(h)

who, being a female, is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the child’s life, education and health; or

(i)

who is being kept in any premises which, in the opinion of a medical officer, are overcrowded, unsanitary or dangerous; or

(j)

who is exposed to domestic violence; or

(k)

who is pregnant; or

(l)

who is terminally ill, or whose parent is terminally ill; or

(m)

who is disabled and is being unlawfully confined or ill treated; or

(n)

who has been sexually abused or is likely to be exposed to sexual abuse and exploitation including prostitution and pornography; or

(o)

who is engaged in any work likely to harm his health, education, mental or moral development; or

(p)

who is displaced as a consequence of war, civil disturbances or natural disasters; or

(q)

who is exposed to any circumstances likely to interfere with his physical, mental and social development; or

(r)

if any of the offences mentioned in the Third Schedule to this Act has been committed against him or if he is a member of the same household as a child against whom any such offence has been committed, or is a member of the same household as a person who has been convicted of such an offence against a child; or

(s)

who is engaged in the use of, or trafficking of drugs or any other substance that may be declared harmful by the Minister responsible for Health.

(2)

A child apprehended under this section shall be placed in separate facilities from a child offenders’ facilities.

(3)

The provisions of this section shall be in addition to, and not in derogation of, those of the Penal Code (Cap. 63) in relation to offences involving children, or the Employment Act (Cap. 226) in relation to safeguards for working children.

120.
Proceedings in respect of children in need of care and protection
(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.

(2)

Any child in need of care and protection may take refuge in a place of safety.

(3)

Any authorised officer may take to a place of safety any child who is about to be brought before a court as being in need of care and protection, and a child so taken to a place of safety, or who has taken refuge in a place of safety, may be accommodated there until he can be brought before a court.

(4)

Any authorised officer having reasonable grounds for believing that a child is in need of care and protection may apprehend him without warrant, and in such a case shall without delay bring him before a Children’s Court; and a children’s officer shall bring before a court any child who appears to such officer to be in need of care and protection unless proceedings are about to be taken by any other person.

(5)

Where an application is to be made to a court for an order under section 125 of this Act and the child is not in a place of safety, the court may issue a summons requiring him to be brought before the court, and thereupon the provisions of subsection (3) of that section shall apply for enabling the court to make an interim order for the temporary accommodation of the child in a place of safety or for his temporary committal to the care of a fit person.

(6)

Where a court makes an order under subsection (5) it may make such other orders as it deems necessary for the establishment of contact between the child and his parent, or between the child and any person who has parental responsibility for him and for the enforcement of the order.

(7)

Where a child is taken to a place of safety by an authorised officer 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 Director for the release of the child from the place of safety into his care:

Provided that if the Director refuses an application under this subsection he shall notify the applicant in writing of the decision and the reasons therefor.

(8)

Any applicant who is aggrieved by the decision of the Director under subsection (6) may apply to the court for the discharge of the child from the place of safety concerned into the care of such applicant.

(9)

Where under the provisions of this section a child is taken to or ordered to be taken to a place of safety, the person who so takes him or, as the case may be, the person bringing him before the court, shall forthwith send a notice to the court specifying the grounds on which the child is to be brought before the court, and shall send particulars to his parent or guardian or such other person who has parental responsibility over the child requiring such person to attend at the court before which the child will appear.

(10)

Where any application is to be made to a court for an order under section 125, the person intending to make the application shall forthwith notify the Director 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, he is to be brought before the court.

(11)

The Director having received a notice under subsection (9), shall make such investigations and render available to the court such information as to the home, circumstances, age, health, character and general antecedents of the child or as may be necessary to assist the court.

(12)

When it appears to an appointed local authority or a charitable children’s institution that a child in its area is in need of care and protection and that its intervention is necessary, the local authority or charitable children’s institution shall receive such child into its care and need not bring him before a court immediately:

Provided that—

(a)

the local authority or charitable children’s institution shall notify the Director within seven days of receiving the child into its care;

(b)

the child shall be brought before a court within three months;

(c)

a monthly report is rendered to the Director of all children received and held;

(d)

all cases are investigated by the local authority, or charitable children’s institution;

(e)

the local authority or charitable children’s institution shall not retain the child in its care if his parent or guardian seeks to assume the care of the child;

(f)

the local authority, or charitable children’s institution shall, when it appears to be in the interests of the child, endeavour 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 should, if possible, be of the same religion, race, tribe or clan as the child.

(13)

A local authority 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 for the child.

121.
Medical care
(1)

If it appears to an authorised officer exercising powers under section 120 that a child is in need of medical care, he shall forthwith take the child to a registered health institution, and such health institution shall provide the appropriate treatment, care and necessary hospital accommodation for the child.

(2)

Where a child is accommodated in any health institution for in-patient care the authorised officer who took the child shall forthwith notify the child’s parent, or guardian, or any person who has parental responsibility for the child concerned, or the Director or his representative.

(3)

Where it appears to any health institution or medical practitioner that any of the offences mentioned in the Third Schedule to this Act have been committed against a child, the health institution or medical practitioner shall forthwith take such measures as shall be necessary to record and preserve any information with regard to the condition of the child in the manner that may be prescribed by the Minister in regulations made under this Part.

(4)

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.

122.
Determination as to child’s home, etc.

Whenever a child is brought before a court as being in need of care and protection and the court determines that he has his home or, as the case may be, has been found within the area of jurisdiction of a particular local authority, such determination shall for the purposes of this Act, be final and conclusive:

Provided that a court may, whenever it thinks it convenient so to do, remit any such case to another Children’s Court to be dealt with by that court, without prejudice, however, to the provisions of section 43.

123.
Parent or guardian to be heard in any application
(1)

Where a child is brought before a court as being in need of care and protection, the court shall allow his parent or guardian or the person who has parental responsibility for such child to be heard on any application made in relation to the child.

(2)

Where the parent or guardian cannot be found or cannot, in the opinion of the court, be reasonably required to attend, the court may allow any relative or any other responsible person who knows or is known to the parents or any relative of the child to take the place of the parent or guardian for the purposes of this section.

125.
Power of court in respect of children in need of care and protection
(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 advise on any aspect of the proceedings.

(2)

If a court is satisfied that a child brought before it is in need of care and protection it may—

(a)

order that such child be returned to his parent or guardian or the person who has parental responsibility for him;

(b)

order such child’s parent or guardian, or person who has parental responsibility for him to execute a bond with or without sureties to exercise proper care and guardianship;

(c)

where it is satisfied that it is in the best interests of the child, commit such child to a rehabilitation school suitable to his needs and attainments after the court has ascertained that there is a vacancy at the school; or

(d)

without making any other order, or in addition to making an order under this section, make an order under Part IX; or

(e)

if the child is a victim of armed conflict, civil disturbance or natural disaster make an order requiring the Director to take the necessary steps to ensure that the child is provided with care, and where possible, is reunited with his family; or

(f)

if the child is disabled, make an order which requires the Director to take the necessary steps to ensure that the child is provided with care commensurate with his special needs; or

(g)

if the child is subjected to early marriage, make an order rendering such marriage null and void ab initio and requiring the child to be placed under the care of a fit person and to return to school; or

(h)

where it is satisfied that the child has been engaged in drug abuse and that it is in the child’s best interest to do so, by order commit him to a drug rehabilitation centre for treatment, or order that the child be accorded professional counselling.

(3)

A parent who is ordered to exercise proper care and guardianship under subsection (2)(b) shall also be required to seek the assistance of a professional counsellor.

(4)

The court may from time to time, of its own motion or on the application of any person, review, vary or revoke any order made under this section.

(5)

The court may order that a child shall remain in the custody of an appointed local authority, a charitable children’s institution or a fit person until the age of eighteen years or such lesser age as the court may decide.

(6)

If a court before which a child is brought is unable to decide whether any order, or what order ought to be made in respect of the child, it may make such interim order as it thinks fit for the child’s accommodation in a place of safety not being a police station, or for his committal to the care of a fit person whether a relative or not who is willing to undertake the care of the child.

(7)

An interim order under subsection (1) shall not remain in force for more than fourteen days, but if at the expiration of that period the court deems it expedient so to do, it may continue to make further interim orders.

126.
Application of trusts for maintenance of children
(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 so payable under the trust to be paid to the person, children’s voluntary institution or appointed local authority to whose care the child is committed, to be applied for his benefit in such manner as the court, having regard to the terms of the trust, may direct.

(2)

A person making default in complying with an order of the court made under this section shall be punished in the prescribed manner, or if no punishment is prescribed, may at the discretion of the court be ordered to pay a sum not exceeding two hundred shillings for every day during which such person is in default, or to be imprisoned or dealt with under section 144(5) until the default has been remedied.

(3)

An appeal shall lie to the High Court from an order made under this section.

127.
Penalty for cruelty to and neglect of children
(1)

Any person who having parental responsibility, custody, charge or care of any child and who—

(a)

wilfully assaults, ill-treats, abandons, or exposes, in any manner likely to cause him unnecessary suffering or injury to health (including injury or loss of sight, hearing, limb or organ of the body, and any mental derangement); or

(b)

by any act or omission, knowingly or wilfully causes that child to become, or contributes to his becoming, in need of care and protection,

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 five years, or to both:

Provided that the court at any time in the course of proceedings for an offence under this subsection, may direct that the person charged shall be charged with and tried for an offence under the Penal Code (Cap. 63), if the court is of the opinion that the acts or omissions of the person charged are of a serious or aggravated nature.

(2)

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 and medical care.

(3)

Any person charged under this section may be charged before the same court as that before which is brought as being in need of protection or discipline and at the same time and both issues shall be tried simultaneously and the same court shall sentence the person charged, if convicted, and make an order under section 125 if the child is found to be in need of care and protection.

(4)

A person may be convicted of an offence under this section notwithstanding that actual suffering or injury to health, or the likelihood of actual suffering or injury to health, of the child was obviated by the action of another person, or the child in question has died.

(5)

Nothing in this section shall affect the right of any parent or other person having the lawful control or charge of a child to administer reasonable punishment on him.

128.
Warrants for search of children
(1)

If it appears to a magistrate on information laid by at least two persons who, in the opinion of the magistrate are acting in the interests of a child, that there is reasonable cause to suspect—

(a)

that one of the offences specified in the Third Schedule has been or is about to be committed against a child; or

(b)

that a child is in need of care and protection, the magistrate may issue a warrant authorising any police officer of or above the rank of Inspector and named therein to search for the child, and, if it appears to such police officer that any offence as aforesaid has been or is being or is about to be committed against the child or that he is in need of care and protection, to take him to and accommodate him in a place of safety until he can be brought before a court.

(2)

Any police officer of or above the rank of Inspector authorised by warrant under this section to search for any child may enter (if need be by force) any house, building or other place specified in the warrant, and, subject as aforesaid, may remove the child therefrom.

(3)

A police officer executing a warrant under this section shall take with him any person laying or joining in laying information who desires to accompany the officer, unless the magistrate issuing the warrant otherwise directs, and may also, if such magistrate so directs, be accompanied by a medical practitioner.

(4)

It shall not be necessary in any information or warrant under this section to name the child.

(5)

A magistrate issuing a warrant under this section may by the same warrant cause any person accused of an offence against the child to be apprehended and brought before a court, and proceedings to be taken against such person according to law.

(6)

A refusal to allow the Director, a children’s officer or an approved officer to enter any place or dwelling in the exercise of his powers under this Act shall for the purposes of subsection (1) of this section be deemed to be a reasonable cause to suspect that a child therein is in need of care and protection.

(7)

The provisions of this section shall be in addition to, and not in derogation of those of the Criminal Procedure Code (Cap. 75) in relation to entry of premises and arrest of persons.

129.
Arrest without warrant

A police officer may arrest without warrant any person who he has reason to believe has committed any offence under this Part or any other offence involving bodily injury to a child, if the police officer has reasonable ground for believing that the person will abscond, or if he does not know and is unable to immediately ascertain the person’s name and address.

Supervision and Care Orders

130.
Supervision order

The court may 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 authorised officer whilst allowing the child to remain in the care and possession of his parent, guardian, custodian or any other person with whom the child is residing.

131.
Preliminary inquiries
(1)

Prior to making a supervision order the court shall procure that—

(a)

such enquiries or investigations as may be prescribed by the rules made under this Part are carried out and in particular that a welfare report is availed to the court; and

(b)

written notice of the proceedings is given to the parent, guardians, custodian or any other person with whom the child is residing.

(2)

A supervision order shall not remain in force for a period exceeding twelve months, but the court may upon the application of the supervisor vary, discharge, or extend the order for a further period as it shall deem expedient, having regard to the best interests of the child:

Provided that the court shall not make an order extending a supervision order 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, who may be heard on the application.

(3)

A court may make an interim supervision order, either on application or of its own motion—

(a)

where it has reason to believe that the circumstances of the child concerned require that an order be made pending the submission of a welfare report prepared in accordance with subsection (1); or

(b)

upon adjourning an application for a supervision order; or

(c)

upon the making of orders for the assessment of the child under section 113.

(4)

Where an interim order is made, it shall not remain in force for a period exceeding eight weeks, but at the expiration of that period the court if it deems it expedient so to do, may continue to make further interim orders.

(5)

A court which has made a supervision order or an interim supervision order may vary or discharge the same upon the application of—

(a)

the child with the leave of the court;

(b)

the parents or custodian of the child or any person with parental responsibility in respect of the child; or

(c)

the supervisor; or

(d)

any person with whom the child is living in so far as the order imposes a requirement that directly affects that person.

(6)

Where a child in respect of whom any order is made under this section attains the age of eighteen years the order shall automatically be discharged.

132.
Care order and grounds thereof
(1)

In this Part a “care order” means an order entrusting the care, control and possession of the child to a person not being the parent, guardian or custodian of the child or to an appointed local authority or an institution appointed by the court.

(2)

A court may make a care order in respect of a child only if it is satisfied that—

(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; or

(b)

the child concerned is suffering or is likely to suffer significant harm, and that the harm, or probability of harm is attributed to—

(i) the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child;
(ii) the child is beyond the control of his parent, guardian or other person who has parental responsibility in respect of the child;
(c)

the danger to which the child is exposed is so severe as to require his immediate removal from the place where he is residing.

(3)

Where a court makes a care order or an interim care order in respect of any child, the court may include in the order such conditions, restrictions and directions as it shall deem fit, as to the enforcement of the order by any person or as to the conduct of the child or any person named in the order.

(4)

The court making a care order shall as far as shall be practicable entrust the care of the child to a person or institution which professes the same religion as the child.

(5)

Where a child is disabled, the court shall as far as practicable entrust the care of the child to a person or institution that is suitably placed to cater for the needs of the child.

(6)

Every care order shall be in writing and shall contain a declaration as to age and religion of the child concerned and may be made in his absence with the consent of the person or institution into whose care the child has been entrusted.

(7)

The court making a care order shall cause to be delivered 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 thinks necessary.

(8)

Every care order shall be made so as to commit a child to such care until he attains the age of eighteen or for such shorter period as the court thinks fit:

Provided that the court, on making a care order, shall make such further orders or directions requiring the Director or his representative to supervise the mode of compliance with such orders and to make such recommendations as the Director or his representative shall consider relevant to the court in respect of the order, including applying for the variation or discharge of the order.

(9)

Upon the making of a care order under this section, it shall be the duty of the Director or his representative to supervise and monitor the care provided to the child concerned by the person or institution to whom or to which the child is committed under the order, and to periodically assess the condition and circumstances of the child.

(10)

A court may on application or of its own motion, make an interim care order—

(a)

if it has reasonable grounds for believing that the circumstances of the child are as mentioned in subsection (1) of this section; or

(b)

upon the adjournment of an application for a care order; or upon making orders as to the assessment of a child under section 113.

(11)

An interim order made under subsection (10) shall not remain in force for a period exceeding eight weeks, but if at the expiry of the period the court deems it expedient so to do, it may extend the order for a further period of four weeks.

(12)

A care order or interim care order may be discharged by—

(a)

the making of an adoption order in respect of the child, if the care order was not made in respect of the child by reason of the child having been found to be guilty of a criminal offence under Part XII;

(b)

the making of a residence order in respect of the child;

(c)

the making of a supervision order in respect of the child.

Notwithstanding the foregoing provisions of this subsection, the court shall have power on the application of the child, the Director or the parents or guardian of the child, or any other person who has parental responsibility in respect of the child to vary or discharge the care order or interim order on such terms as it thinks fit and including replacing the care order with a supervision order.

(13)

The court shall have power, where it considers that it would be for the benefit of a child, to authorise a foster parent or a voluntary children’s institution, to whose care a child has been committed, to arrange for the child’s emigration from Kenya, but the court shall not authorise such arrangements unless the child and his parents or guardian or any other person who has parental responsibility for the child, consent:

Provided that where the parents or guardians cannot be found after diligent and reasonable enquiry, the Director may give such consent.

133.
Arrangements for access to children in care
(1)

Prior to making a care order, the court shall consider the arrangements the Director has made or proposes to make for affording any individual contact with the child during the term of a care order, and shall invite the parties to the proceedings to comment on the said arrangements and or to make such applications for contact in the manner prescribed in subsection (4).

(2)

Unless a court otherwise directs or it is determined that such contact would be detrimental to the best interests of the child, there shall be a rebuttable presumption of reasonable contact between the child and—

(a)

the child’s parent or guardian;

(b)

any person who has parental responsibility in respect of the child;

(c)

the relatives of the child;

(d)

such other person as the court shall direct.

(3)

Where the court makes an access order under this section it shall determine the frequency and duration of access to the child subject to such conditions as the court may consider appropriate.

(4)

The Director or the child, with the leave of the court, may apply to the court for refusal of access to any individual and upon such application the court, if satisfied that such contact between the child and any individual should be refused shall make an order authorising the Director to refuse to allow contact between the child and the person named in the order.

(5)

A court making a contact order under this section shall have power to vary, suspend or discharge the order or revive the order after it has been discharged on such terms as it shall deem fit; but no contact order shall remain in force beyond the child’s eighteenth birthday or after the date of a discharge of a care order.

134.
Contents of care order

Where a care order to a rehabilitation school has been made by a court against a child, on a finding of guilt of an offence, the committal order shall specify the grounds of the order and—

(a)

contain a declaration as to the age and religion of the child;

(b)

specify the rehabilitation school to which he is to be sent;

(c)

specify the person or authority that is to convey the child to the school;

(d)

contain directions as to any special care or treatment required for the child;

(e)

contain directions as to access arrangements for the child by his parent, guardian or relative; and

(f)

specify details of any contribution order made against the parents or the guardian of the child and the dates upon which accounts shall be supplied to them.

135.
Transmission of order

The Court making a care order to a rehabilitation school shall send such order together with a record in the prescribed form of such information regarding the child placed in care as the court thinks necessary, to the manager of the rehabilitation school.

136.
Production of child

Where a person authorised to escort a child to a rehabilitation school is unable to find or obtain possession of the child, the court may, if satisfied by information on oath that some person named in the information can produce the child, issue a summons requiring the person so named to attend at the court on a specified day and produce the child and, if the person so summoned fails without reasonable cause to attend, in addition to any other liability to which he may be subject under the provisions of any law including this Act, he commits an offence and is liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding one year or to both.

137.
Harbouring or concealing a child

Where a child has been placed under care in a rehabilitation school any person who harbours or conceals him after the time fixed for him to enter the rehabilitation school commits an offence and is liable on conviction to imprisonment for a term not exceeding one year or a fine not exceeding fifty thousand shillings or to both.

Escapees

138.
Escape from institutions, etc

A child who runs away from a fit person, charitable children’s institution or appointed local authority to whose care the child has been entrusted under this Act, or from any person or institution with whom he has been placed by a charitable children’s institution, or appointed local authority 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 he was residing immediately before he ran away, and that court may—

(i) order that the child be returned to where he ran away from; or
(ii) place him under the care of some other person or charitable children’s institution; or
(iii) order him to be sent to a rehabilitation school; or
(iv) make any order which a court may make under section 125; or
(v) make an order requiring the child to undergo professional counselling.
139.
Charitable children’s institutions and local authorities

Whenever a child runs away from any person or institution with whom or with which he has been placed by a charitable children’s institution or appointed local authority, as aforesaid, it shall be the duty of the secretary, clerk or other appropriate officer of such institution or authority, within forty-eight hours of such occurrence coming to his knowledge, to notify the Director thereof; and any secretary, clerk or other officer who contravenes the provisions of this subsection commits an offence and is liable on conviction to a fine not exceeding five thousand shillings or imprisonment for a term not exceeding three months or to both.

140.
Escape from children’s remand home or rehabilitation school
(1)

Any child who escapes from a children’s remand home or while being conveyed thereto or therefrom, may be apprehended without warrant and dealt with in accordance with section 138.

(2)

Any child who has been committed to a rehabilitation school and who—

(a)

escapes from such school or from any hospital, home or institution in which he is receiving medical or other treatment, or while being conveyed to or from any such place; or

(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 upon the expiration of his leave or upon the revocation of his licence,

may be apprehended without warrant and shall be brought before a court having jurisdiction where the school is situated to be dealt with under the provisions of section 138.

(3)

Where a child is brought back to a rehabilitation school under subsection (2), the period of his committal shall be increased over and above any increase ordered by court, by a period equal to the period during which he was at large and should have been at the school.

141.
Assisting escape, etc.

Any person who knowingly—

(a)

assists or induces a child—

(i) to run away from a fit person, a charitable children’s institution or appointed local authority to whose care the child has been committed, or from any person or institution with whom or with which he has been placed by a charitable children’s institution or an approved appointed local authority under or by virtue of this Act or any regulations made thereunder; or
(ii) to do any of the things specified in section 140(2); or
(b)

harbours or conceals a child who has so run away or has done any such things as aforesaid; or

(c)

prevents such a child from returning, or induces such a child not to return, to the care of the person to whom he has been committed, or to any place in which he should be,

commits an offence and is liable on conviction to imprisonment for a term not exceeding one year, or to a fine of fifty thousand shillings, or to both.

142.
Production of escaped child

If a Children’s Court is satisfied by information on oath that there are reasonable grounds for supposing that a child has run away or done any of the things specified in section 140, and that some other person named in the information can produce the child, the court may issue summons requiring that other person to attend at the court and produce the child and, if the person fails to do so without reasonable excuse, he commits an offence, and in addition to any other liability to which he may be subject under this Act, is liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

Miscellaneous Provisions on Protection of Children

143.
Presumption and determination of age
(1)

Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that such person is under eighteen years of age, the Court shall make due inquiry as to the age of that person and for that purpose shall take such evidence, including medical evidence, as it may require, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act and of all proceedings thereunder, be deemed to be the true age of the person.

(2)

A certificate purporting to be signed by a medical practitioner as to the age of a person under eighteen years of age shall be evidence thereof and shall be receivable by a court without proof of signature unless the court otherwise directs.