Process of Filing for Child Support

 According to the Kenyan constitution, Article 53, a child has the right to receive parental care and protection. This includes equal responsibility for the father and mother to provide for their child regardless of whether they are married or not. Some of the organizations that can help you file for child support include: the National Legal Aid Programme (NALEAP), The Federation of Women Lawyers (FIDA), and CLEAR, an initiative of the Kenya Christian Lawyers Fellowship.

Any parent, custodian, or guardian of a child can file for child support. The following are some of the considerations that the court will make before granting an order for child support:

1. The financial needs, responsibilities, or obligations of each party
2. The earning capacity or income, property, or financial resources of each party
3. The child’s circumstances and their financial needs
4. The child’s training or education
5. Any mental or physical disabilities, medical conditions, or illnesses of the child
6. The religion, custom, and practices of the parties
7. The liability of other persons to support the child e.g. the liability of the stepparent or guardian

The process of filing for child support starts with hiring a lawyer. A lawyer will draft a letter to the party who is meant to pay child support. This approach is used to avoid the long court process. Both parents will then sit down, in the presence of their lawyers, to draft a parental responsibility agreement. This agreement is binding on both parties. After all the issues on child maintenance have been settled, the lawyer will register the agreement in court and it will act as a court order.


Alternatively, if the party who is required to pay child support resists a parental responsibility agreement, you could move to court and file a case for child support. The court will consider what is in the best interest of the child and look at all the above mentioned factors before granting an order for child maintenance.

The Law on Guardianship Agreement in Kenya

Background

In the ambit of Section 102 of the Children’s Act No. 8 of 2001, a guardian is as a person appointed either 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.

A guardian is then a person that assumes parental responsibility of a child upon the death of a parent and can be appointed by an order of court, an agreement or through a will.

Parental Responsibility is explained by the Children’s Act as all the duties, rights and authority by which the law accords to a parent of a child in relation to the child and the child’s property. The guardian can be any person and need not be a citizen or a resident of the Republic of Kenya. Furthermore, the guardian can be appointed in respect of any child who is resident in Kenya whether or not the child was born in Kenya.

What is a Guardian Agreement? What are its features?

A guardianship agreement is a legal document that is used to transfer the legal responsibility and care of a child to another party. The guardianship agreement appointing the guardian must be signed and dated by the person appointing the guardians and witnessed by two other people declaring the appointment of a guardian.

Guardianship is however, not equivalent to and should not be confused with custody of a child. Custody is expounded under Section 81 of the Children’s Act to mean the physical possession of the child. It has been previously noted that although anyone with custody of a child is a guardian not all guardians have custody.

Guardianship can be awarded both by courts and people with parental responsibility whereas custody can only be granted by the courts. Custody can be awarded to either the Parent, the guardian or any other person who applies to the court for custody but has had actual custody for three months before the application with condition of the parent or the guardian.

The guardian does not need to have custody of the child. He or she may be appointed whether in respect of the child or the Child’s Estate or both. In the case that the guardian is appointed in respect of the Child’s Estate, the guardian possesses:

1. The power to manage the estate of the child in his own name for the benefit of the child

2. The duty to safeguard the child’s estate from loss or damage

3. To produce the accounts in respect of the child’s estate to the parent or custodian as the court may direct.

The guardianship agreement terminates when the child attains the age of eighteen years unless exceptional circumstances exist that will make the court consider and extension of the appointment such as a mental or physical disability incapacitating the person from maintaining themselves or managing their property. However, the appointment may also be terminated by an order of the court at any time considering the application for the termination by a parent or a guardian of the child, the child concerned or a relative of the child. The guardianship can also be terminated when the court considers that it should be brought to an end even though no application has been made.

Each guardianship agreement is unique in itself as it varies on a case-to-case basis. Nonetheless, there are key constituents of Guardianship Agreements that recurringly occur in every agreement.

1. Parties to the Agreement

The parties to every guardianship agreement must be defined within the document. This will include the name of the child or the adult in need of the guardianship, the names of the parents or current guardians and the name or names of the suggested guardians.

· Duration

The agreement should indicate how long the arrangement is to last. Whether it be a temporary or emergency guardianship or a permanent guardianship. A guardianship agreement terminates when the child attains the age of 18 years except for special circumstances such as the mental or physical incapacity of the beneficiary of the arrangement. The agreement should clearly outline the duration the arrangement is expected to occur and the possibilities for its extension.

· Purpose of the Guardianship

The agreement should have to clearly stipulate the specific purpose that the guardianship is required to fulfil. This should also include whether the guardianship pertains to the child alone or the child’s estate or both the child and the estate of the child. This section of the agreement is for the avoidance of doubt and to ensure the purpose of the agreement is particularly met in the best interest of the child.

The process of buying property/Land Transfer in Kenya

  The process of buying property in Kenya is as below;

1. 1. Identify the property you would like to buy

2. 2. Conduct legal due diligence

3. 3. Carry out the transfer of the property

Identify the property you would like to buy

The most popular way is by word of mouth or through a real estate agent or through newspaper advertisements. You can also talk to lawyers who are sometimes contracted by their clients to sell property on their behalf.

Conduct legal due diligence

At this stage, it’s important to identify a lawyer you would like to work with who will help you with the following stages of the transaction

Conduct a search

Why do you need to conduct a Search?

1. To ascertain the ownership of the property

2. To check the property for any encumbrances

3. To check for any land rates that may have accrued.

If it’s a company or land buying company, obtain the CR12 from the Registrar of Companies to ascertain that;

1. The company is still in existence.

2. Who are the directors of the company.

You may further want to do a case search on the Kenya Law website to ascertain that the company/Housing Sacco has not been sued by other buyers for similar transactions. It may be useful to visit the company offices or contract someone to do the same on your behalf.

A search is done at the Ministry of Lands registry and could take 1-3 days.

Land Survey Plan
A land survey plan is a specialized map of a parcel of land . It determines and delineates boundary locations, building locations and physical features .The plans are issued by the Ministry of lands and Physical Planning through the Department of Survey.

Obtain the Land Clearance Certificate and Land Rent Certificates

Depending on the land tenure regime, the land rates and rent if unpaid will need to be paid so that you can obtain the Clearance Certificates.

Valuation of the Land and Payment of Stamp Duty

The Government Valuer will visit the property so as to ascertain the value of the property. The stamp duty will be assessed based on the value given by the Government Valuer. The next step is the payment of the stamp duty to the Kenya Revenue Authority. For this, you will require both the transferor and transferee PIN. Depending on the value of the property, a Capital Gains Tax may apply. Read more about Capital Gains Tax here.

Carry out the registration and transfer of land

Once you are satisfied that the property is free from any encumbrances or illegalities, your lawyer should draft a sale agreement for both the transferee and transferor to sign. Some agreements may provide that at least a deposit of 10% of the purchase price be paid upon signing of the sale agreement.

Both the buyer and seller will be required to provide the following documents;

1. National Identity Card/Passport

2. Personal Identification Certificate (PIN)

3. 3 copies of photographs

Transfer process

Once stamp duty has been paid, the transfer documents are lodged with the Registrar of Lands. The Registry will process the transfer and the registration process will be complete upon entry and change of ownership of the title.

Duration

A land transfer process currently may take upto Four (4) to six (6) months due to the delays at the Registry. There is currently a digitization process that is taking place that may make the process shorter.

Legal fees associated with the transfer of property in Kenya

Legal Fees are regulated in Kenya and the fee charged is based on the Remuneration Order.

Legal Process For Buying Land in Kenya

1.0 Conducting a Search at Ministry of Lands

Search with the Ministry of Lands at district or county headquarters to ascertain the true land owners and establish the presence of brokers and if the title has been charged or has a caveat, for instance, when it has been used to secure a loan, or there is a court order barring any transaction on the land.

A search costs Ksh 1000 and should be ready within a few days. A valid search should be no more than six months old.

2.0 Payment of Land rates

Visit the Local Council (municipal or county) to confirm any unpaid land rates which you will need to factor in when deciding the purchase price. Cost varies from county to county. In Nairobi, you will be required to have a certificate of clearance from the Nairobi City County, which costs Ksh7,500 and should be ready normally within two hours.

If there are prevailing unpaid land rates you would need to agree with the seller on who will settle them as the land cannot be sold (transferred) with outstanding land rates.

3.0 Land Map/Survey

Visit the local surveyor and purchase maps of the place, normally two, one drawn to scale (informally known as tracing or mutation) and another showing the neighboring farms, costing Ksh300 per map. You can buy these at the Lands Ministry but a surveyor is better and faster.

4.0 Verification of the Land

Armed with the map, the surveyor and the seller visit the land on the ground. Have a tape measure to confirm the dimension from the map drawn to scale. Make sure you see the beacons or replace the lost ones. Surveyors charge about Ksh1,000 per beacon. Make sure the bordering neighbors are in agreement with the boundaries.

5.0 Drafting a Land sale Agreement 

The law requires any land transaction to be in writing. It is very advisable to have a lawyer (though not a must). According to the tariff provided by the Law Society of Kenya, the lawyer should charge Ksh3000 if the land cost is Ksh1,000,000 and below and Ksh8,000 if the land value is above Ksh 1,000,000. A lawyer’s cost is normally shared equally between buyer and seller or as agreed between the parties.

Ensure that the spouse to the seller is present at this stage or at least the spouse is aware and agrees with the transaction to avoid later complications.

6.0 Post Agreement Transaction

According to the agreement, you may be pay in cash or installment. Ensure by the time you make the initial payment the title deed and other legal documents are in the custody of the lawyers. This is because the seller still owns the piece of land and may involve other transactions using the title deed, which may harm you financially.

7.0 Land Control Board

Book the Land Control Board (LCB) meeting. The LCB is a forum made of the Assistant County Commissioners (Previously called DOs) and the local village elders which meets once a month. They are the ones who give the final consent for the land to be sold. Their role is to protect the seller from self-destruction e.g. where a man is selling land without wife’s knowledge and they don’t have anywhere else to go or the land being sold is clan/community land. LCB costs Ksh1000.

However, there is a special Land Control Bond (SCLB), which involves only the Assistant County Commissioner and the two transacting parties instead of waiting for the main LCB that meets once per month. SCLB costs Ksh5,000 and may take two hours depending on the availability of the Assistant County Commissioner.

8.0 Land Transfer Process 

After all payments, the seller signs Land Transfer Forms which together with Consent from LCB, land search, clearance from county/ municipal council, passport photos, KRA PIN, agreement and old title deed are taken to the Ministry of Lands to change ownership. It costs Ksh5,000 to process new title which should be ready within two weeks.

9.0 Stamp Duty and Transfer Fees

You will need to pay stamp duty based on the value of land, i.e four percent for municipalities and two percent for reserves.

10.0Conclusion

After one week, the buyer should do another search with the Ministry of Lands to confirm that the land now reads his/her details.

Marriage Act as to the limitation of a one-year limit period to apply for annulment of marriage is unconstitutional: The Case of Susan Bithe Matuku, FIDA Kenya Vs. The Hon. Attorney General (Judgment) (Constitutional Petition No. 21 of 2021)

Court's Holding:

On 19th October 2022, the High Court, sitting in Eldoret in the above-cited case declared that Section 73 (2) (a) of the Marriage Act as to the limitation of a one-year limit period to apply for annulment of marriage is unconstitutional.

Conclusion and Analysis:

What is the essence of this Judgment?

A void marriage does not have any legal effect to the parties to the marriage and they cannot enjoy the rights under Article 43 of the Constitution.
Any party who finds out the factors that renders the marriage void, has a right to get a decree for annulment of the marriage at the time that the discovery was made.

 

The violation of fundamental rights and subsequent deprivation of the right to equality in Article 27, Freedom of Conscience in Article 32 and access to courts in Article 48 of the Constitution of Kenya.
Parties should not be forced/made to remain in marriages or dissolve a marriage that was based on misrepresentation and fraud as it is a further violation of their rights.


WHAT IS THE IMPLICATION OF SUCH A JUDGMENT ON PARTIES THAT HAVE BEEN MARRIED BEYOND 1 YEAR?

The expansion for the period within which one can apply for the annulment of the marriage raises questions on how to handle a matter where there has been longevity and investment in the course of the marriage e.g. acquisition of marital assets and liabilities.

The courts would need to grapple with whether they can be considered marital assets and liabilities if the marriage that was the foundation for such investments and commitments has been declared as one that was never in existence.

This calls for a lot of thought for parties that may be considering annulling their marriages. Is recognition of the marriage and dissolution of the same better than a declaration that the marriage never existed? It is important to consult with your advocate when making this decision.