Beyond the Tender Years: Custody and Legal Frameworks in Kenya
The Legal Meaning of Custody in Kenya
In Kenya, child custody refers to the legal rights, duties and responsibilities that a parent or guardian exercises over a child. It is not limited to where the child lives, but extends to decision-making authority over critical aspects of the child’s life, including education, healthcare, religion and general welfare. In practice, custody encompasses both the child’s physical possession and the legal authority to act on the child’s behalf.
The law recognizes three key aspects of custody.
- Legal custody refers to the authority to make major decisions concerning the child, including matters of education, medical care, religion and residence, as well as the ability to represent the child legally.
- Actual or physical custody (care and control) determines who the child lives with on a day-to-day basis.
- Access or contact refers to the right of the non-custodial parent or another person to spend time with the child and remain involved in their life.
All these aspects are governed by the overriding principle under Article 53(2) of the Constitution of Kenya, which provides that:
“A child’s best interests are of paramount importance in every matter concerning the child.”
This principle is the foundation upon which all custody decisions in Kenya are made.
Parental Responsibility and Equality Under the Law
The Children Act, 2022 defines parental responsibility as:
“All the duties, rights, powers, responsibilities and authority that by law a parent has in relation to the child and the child’s property.”
This definition reflects the broad scope of parental obligations, extending beyond financial provision to include care, protection, guidance and decision-making.
Under Article 53(1)(e) of the Constitution, it is provided that:
“Every child has the right… to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.”
This position is further reinforced under Section 32(1) of the Children Act, 2022, which provides that:
“The parents of a child shall have equal parental responsibility over the child on an equal basis 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 whether the child is born within or outside wedlock.”
Parental responsibility is continuous and cannot be extinguished. It remains even where parents separate or divorce and even where custody arrangements change in practical terms.
A parent without physical custody still retains parental responsibility, including the right to participate in important decisions affecting the child, unless a court orders otherwise.
Types of Custody Recognized in Kenya
Kenyan law recognizes several forms of custody, which courts may apply depending on the circumstances of each case.
- Actual or physical custody determines where the child resides on a daily basis.
- Legal custody grants a parent the authority to make major decisions concerning the child’s upbringing, health and education.
- Joint custody allows both parents to share legal and/or physical custody, requiring cooperation in decision-making.
- Sole custody, on the other hand, is granted exclusively to one parent, usually in situations where the other parent is deemed unfit due to factors such as abuse, neglect or incapacity. In such cases, the non-custodial parent is typically granted access rights to maintain a relationship with the child.
Section 102(3) of the Children Act, 2022 expands the scope of persons who may be granted custody. It provides that:
“The court may, upon application, make an order for custody in favour of—
(a) a parent;
(b) a guardian;
(c) any person who has had actual custody of the child for a period of at least three years immediately preceding the application; or
(d) any other person who can show cause why an order should be made in their favour.”
This provision demonstrates that custody is not strictly limited to biological parents, but may be granted to any suitable person where the welfare of the child so demands.
Judicial Considerations in Custody Determination
In determining custody, courts are guided by section 103 of the Children Act, 2022, which outlines several factors, including:
- The conduct and wishes of the parents or guardians;
- The wishes of relatives;
- The ascertainable wishes of the child, taking into account the child’s age and maturity;
- Whether the child has suffered or is likely to suffer harm;
- The customs and religious background of the child;
- The existence of any prior court orders relating to care or protection;
- The circumstances of siblings and other children in the household; and
- The child’s physical, emotional and educational needs.
Ultimately, all these considerations are subordinate to the best interests of the child.
Parental conduct plays a significant role in this assessment. In Martha Olela & Another v Jackson Obiera (1979), the court considered factors such as immorality, drunkenness and undesirable conduct in determining custody.
Similarly, in JKN v HWN [2019] eKLR, the court examined the mental condition of a parent and held that the key consideration is whether such a condition affects the parent’s ability to provide a safe and stable environment.
The child’s wishes may also be taken into account, particularly where the child has attained sufficient maturity. However, as affirmed in J.O v S.A.O [2016] eKLR, the court retains discretion to override such wishes where they do not align with the best interests of the child.
The Evolution of the Tender Years Doctrine
Traditionally, Kenyan courts applied the “tender years doctrine,” which presumed that children of a young age typically under ten years should reside with the mother. However, this doctrine is no longer absolute.
Modern jurisprudence has shifted towards a more balanced approach that recognizes equal parental responsibility. Courts now assess factors such as each parent’s capacity, stability, conduct, financial position and support systems. The child’s own wishes may also be considered, depending on their age and maturity.
This position has been affirmed in MAK v RMAA & 4 Others [2023], where the court emphasized that custody decisions must not be based on gender stereotypes but on what best serves the child’s welfare. The tender years doctrine is now subordinate to the constitutional principle of the best interests of the child.
In JKN v HWN [2019] eKLR, the High Court strongly criticized the reliance on stereotypes that men are incapable of caregiving. The court observed that such reasoning is rooted in outdated societal assumptions and is inconsistent with the constitutional principle of equality.
Similarly, in J.O v S.A.O [2016] eKLR, the Court of Appeal clarified that while the age of the child is a relevant factor, it is not determinative. Custody must ultimately be decided based on the specific circumstances of each case and what best serves the child’s welfare.
Parental Responsibility Agreements: Structuring Co-Parenting
Where parents are separated or were never married, a Parental Responsibility Agreement provides a structured framework for co-parenting. It is a voluntary arrangement through which parents agree on how to share responsibilities relating to custody, access and maintenance.
Section 33(1) of the Children Act, 2022 provides that:
“A person who has parental responsibility for a child may enter into an agreement with any other person who has parental responsibility for the child with respect to the exercise of that responsibility.”
A Parental Responsibility Agreement typically addresses:
- Contact information of the parents;
- Visitation schedule;
- Holiday and school break schedule;
- Custody arrangements, whether joint or sole;
- How the child or children shall spend time with each parent;
- Transport and travel within and outside Kenya;
- Responsibility for health insurance and healthcare services;
- The need for notification of parental movement in the event one or both of the parents relocate or change residence;
- The manner in which the decisions relating to the education of the child shall be made;
- Dispute Resolution Mechanism, which we should recommend mediation prior to approaching the court, so as to help maintain a healthy co-parenting relationship; and
- Joint and several responsibilities for expenses relating to the child’s extra-curricular activities.
It is not mandatory for a Parental Responsibility Agreement to be adopted in court to be valid; however, to ensure straightforward enforceability, it is highly recommended that it be filed and adopted as an order of the Children’s Court. Once adopted, it transcends a private contract and carries the full force of a court order, meaning any breach can be dealt with immediately through contempt of court proceedings or police intervention.
The Legal Status of Parental Responsibility Agreements
The Supreme Court decision in Mutheu Agatha Khimulu v Raheem Mehdi Aziz Azad & 4 others (Petition No. E003 of 2022) provides authoritative guidance on the status of Parental Responsibility Agreements.
The Court held that such agreements remain valid and operational unless revoked by a court order or by mutual consent of the parties. It emphasized that parental responsibility is a continuing obligation that cannot be extinguished.
The Court further reaffirmed that in all matters concerning children, the best interests of the child remain paramount. Even where parties have entered into an agreement, the court retains the power to intervene where necessary to safeguard the welfare of the child.
Maintenance and Financial Responsibility
Child maintenance is an essential component of parental responsibility. It refers to the obligation of parents to provide for the child’s basic needs, including food, shelter, education, medical care and clothing.
Under Article 53(1)(e) of the Constitution, both parents share this responsibility equally. Courts may issue maintenance orders requiring one or both parents to contribute financially towards the child’s upkeep.
A maintenance order directs the financial contribution of a parent, while a custody order governs care, control and access. These orders are often sought together, given their interrelated nature.
In determining maintenance, courts consider the financial capacity of each parent, their obligations and the specific needs of the child. Maintenance orders may take effect from the date of application and typically continue until the child attains the age of eighteen.
Extension of Parental Responsibility Beyond Majority
While parental responsibility generally ends when a child attains the age of emancipation (in Kenya 18 years), the law recognizes circumstances under which it may be extended.
Section 35 of the Children Act allows for extension where special circumstances exist, including:
- where the child is still pursuing education
- has a disability; or
- remains financially dependent.
Courts have consistently held that withdrawing support from a child who is still in school may undermine the child’s right to education. As such, parents may be required to continue providing support until the child completes their education, particularly where the child demonstrates commitment and capability.
Residence Orders and Relocation
A distinction must be made between custody orders and residence orders. While custody orders govern care, control and decision-making, residence orders determine where the child will live.
Residence orders are particularly relevant where a parent seeks to relocate with the child, whether within Kenya or internationally. In such cases, the court must consider the impact of the relocation on the child’s welfare and the other parent’s access rights before granting approval.
The recent Court of Appeal decision in Jasreen Kaur Pandher v Kabir Singh Chal decision provides important guidance on how courts should approach relocation disputes. The Court of Appeal clarified that relocation cases are not to be determined through broad or unstructured discretion, but through a principled and transparent framework grounded in the Constitution and the Children Act.
From the judgment, a coherent set of guiding principles emerges.
- No presumption for or against relocation. The Court affirmed that there is no automatic preference either permitting or rejecting relocation. Each case must be determined on its own facts, with the child’s welfare as the controlling consideration under Article 53(2) of the Constitution.
- The child’s best interests remain paramount but not isolated. While the Constitution provides that:
“A child’s best interests are of paramount importance in every matter concerning the child,”
the Court clarified that parental rights and interests such as dignity, equality, freedom of movement and family life are relevant to the extent that they affect the child’s welfare. These interests are not excluded but must be properly integrated into the analysis.
- The relocating parent bears the evidential burden. A parent seeking to relocate must present a clear, credible and evidence-based plan, including details of housing, schooling, healthcare and legal status in the destination. Speculative or uncertain proposals are insufficient.
- The court must evaluate the bona fides of the relocation. The inquiry is whether the relocation is proposed in good faith for legitimate reasons, as opposed to being intended to frustrate or undermine the child’s relationship with the other parent.
- The court must assess the likely benefits of relocation. This includes examining the potential advantages to the child’s emotional wellbeing, education, healthcare, safety and overall quality of life, through a holistic and integrated welfare analysis.
- The court must assess the likely detriments of relocation. This involves considering disruption to the child’s life, including separation from familiar surroundings, schools, extended family and particularly the impact on the child’s relationship with the non-relocating parent.
- Preservation of the parent-child relationship is central. The court must evaluate whether meaningful and realistic contact can be maintained between the child and the non-relocating parent. Any proposed access arrangements must be practical, sustainable and enforceable, rather than merely theoretical.
- Caregiving realities must be considered. Where one parent is the primary caregiver, the court must assess how relocation or refusal to relocate would affect that parent’s wellbeing and capacity to provide care, recognising that the child’s welfare is closely linked to the caregiver’s circumstances.
- The court must undertake structured constitutional balancing. The Court emphasized the need for a transparent and reasoned balancing of competing interests, including parental rights under the Constitution, ensuring that the final decision is proportionate and justified within a constitutional framework.
- Flexibility and revisability of orders. Relocation decisions are not final in an absolute sense. Courts retain the ability to review and adjust orders where circumstances change, ensuring that the child’s best interests continue to be served over time.
Ultimately, the Court reaffirmed that relocation disputes must be resolved through a structured, evidence-based and child-centred inquiry, avoiding rigid presumptions while ensuring that all relevant factors are properly weighed. The child remains at the centre of the analysis, but within the real-life context in which parenting occurs.
Custody and Divorce: Parallel but Distinct Processes
Child custody and divorce proceedings are handled separately within the Kenyan legal framework. While divorce matters may be determined in Magistrates’ Courts or the High Court, custody matters fall within the jurisdiction of the Children’s Court.
Where parties are able to agree on custody arrangements, they may formalize such arrangements through a Parental Responsibility Agreement and have it adopted as a court order. This ensures that the agreement is legally binding and enforceable.
Conclusion: The Urgent Need for Legal Reform
Despite the complexity of custody disputes, the legal position in Kenya remains clear. Custody is not determined by gender, financial superiority or societal expectations.
It is determined by one overriding principle: The best interests of the child.
Courts have moved away from rigid doctrines and stereotypes, embracing a balanced and evidence-based approach that prioritizes the welfare of the child. Parental responsibility is recognized as a shared and continuous obligation and legal tools such as Parental Responsibility Agreements provide structured mechanisms for co-parenting.
Ultimately, the law seeks to ensure that every child is raised in a stable, supportive and nurturing environment, guided at all times by their best interests.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. The author/website is not responsible for any errors or omissions and a party desiring legal advise should get in touch with the authors
