THE CUSTODY OF CHILDREN

According to the Childrens Act No.8 of 2001;1

Custody with respect to a child means so much of the parental rights and duties as relate to
the possession of the child.
Under section 82 (3), custody of a child may be granted to the following persons:
a

A parent

A guardian

Any person who applies with consent of a parent or guardian of a child for 3 months
proceeding in making of the application;

Any person who, while not falling within paragraph a, b, c can only show cause having
regard to section 83 of the Act.

With regards to your case, in the event of a divorce, you may apply to the courts for custody of
the child.
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. 2
Thus this can also apply in your case.
The welfare of the child is paramount consideration; the court considers which parent will be
able to provide the best shelter, health, education and upbringing. You may argue that you are
best suited to provide for the child his or her basic needs. In the case of tender years, the courts
normally awards custody to the mother but only if it proves that the mother is eligible enough to
take care of the child. Parents are supposed to agree between themselves who will have custody
but the court is not enjoined to honor such an agreement if it deems it is not to be in the best
interest of the child.3

1 s. 81
2 s. 87
3 Kivutha Kibwana & Lawrence Mute eds., Law and the Quest for Gender Equality in
Kenya(2000), pp 161-181.

Whereby custody has been given to the mother since the child is of an infant age, and there is a
form of cruelty, you may apply for separation and maintenance on grounds that Naishora has
been guilty of persistent cruelty of her child or has neglected to provide reasonable maintenance.4

Historically, under common Law a parent was under an obligation to take care of his child during
marriage and this obligation was only on the part of the father. In the event of marriage breakdown the father always had a right to custody unless he forfeited it through immoral or cruel
conduct. This was so stated in Re Agar Ellis [1883] 24 Ch. D 317
The position under common law was changed by statute, which have watered down the exclusive
rights of fathers over children. One finds that common law started from a position of paternal
preference when it came to rights and responsibilities over children. The factors which weakened
this paternal preference included an increased focus in childrens welfare as the primary
consideration and also with the effects of the industrial revolution fathers increasingly sought
work outside the home while the mothers remained at home as the primary caretakers. The
resultant division of family responsibilities influenced custody decision and the paternal
preference was gradually replaced by a maternal preference.
This maternal preference was based on the tender years doctrine which was intended to apply to
children under the age of six years and was invoked to give mothers custody of children of
tender years. The assumption here was that in the interest of the welfare of children mothers were
better suited to nurture and raise children of tender years.
This particular maternal preference also obtained in Kenya for a while and this was under the
Guardianship of Infants Act which has also been repealed it provided that a court in awarding
custody had to ensure that the childs welfare was of paramount consideration and if that child
was of tender years, then custody was given to the mother to protect the childs welfare and for
this position as een in the seminal case of Karanu v. Karanu (1975) E.A. 185,where the Court
of Appeal stated that, The substantial question in this appeal is whether or not the Judge was
right in giving custody of the children to the father. At the time the application was heard, the
daughter of the parties was just over seven years of age, and the son was six years old. The
Judge correctly directed himself that in cases of this nature, the paramount consideration was
the welfare of the children, but he did not specifically refer to the generally accepted rule that,
in the absence of exceptional circumstances, the custody of young children should be given to
the mother.
4 Ibid
5 (1975) E.A. 18

In addition to the case above in the case of ZULEKHA MOHAMMED NAAMAN VGHARIB SULEIMAN GHARIB Court of Appeal (Mombasa) C.A. No.1234 of 1997 The
Court of Appeal stated; that there was no arising evidence for review and that the physical
custody, care and control of the children should be with the mother unless there was compelling
circumstances to disqualify her from being awarded the custody.

The maternal presumption of custody remained in place for many years and has only recently
been substituted by the standard of the best interests of the child. This substitution can be seen in
the words Githinji, J in the case of N-V-K(2008) KLR 518 where he articulated that
.1)The paramount consideration in this type of case is the welfare of the children. To
deprive a parent of access is to deprive a child of an important contribution to his emotional
and material growing up in the long run.
2)The respondent was a suitable parent and he was possessed of sufficient means to guarantee
the children of a good life, better education and a sense of belonging.
3)The children were boys and were big enough. It was not for their long term wellbeing that
they should be alienated from their father. This was one of the exceptional cases where the
mother should be denied custody of the children.

Best Interests of the Child

under this standard, custody decision are now based on considerations of the childs needs and
interests rather than based simply on the gender of the parent.
Children Act is the one that repealed Under common law parental custodial rights include the
power to control a childs education, the power to control the discipline of the child, the power to
determine the childs religion, the power to control any property belonging to the child until the
child attains majority age, the right to be the childs legal representative if a suit is brought
against or on behalf of the child and the right to decide on the type of medical treatment to be
given to the child including the right to consent to such medical treatment. Those were the
parental rights that obtained under Common Law.
The leading case on custody in common law is
J v. C (1970) A.C.

In this case the parents of a child were unable to look after him and offered him for foster
parenthood. After sometime their financial situation improved and they sought to have the child
returned to them. It was held that in deciding custody of children certain factors are taken into
account in common law.
Firstly the court has to have regard to the wishes of the natural parents that is the biological
parents,
Secondly the court stated that where custody is being claimed by both natural parents i.e. in the
event of a divorce then the court has to consider the conduct of both parents and determine firstly
whether they live an immoral life. Secondly whether their conduct is cruel and thirdly whether
the parents will have enough time to look after the child. The final consideration is that the courts
in awarding custody prefer that all children go to one parent and they are hesitant to divide the
children among the parents. Common Law does not encourage split custody.
Under Common Law parental custodial rights ceased to exist once a child has attained the age of
discretion which was 18 years for girls and 15 years for boys.
Increasingly we find that the application of the presumption is that maintenance and the
presumption is that maintenance of children is that it is the joint responsibility of both parents
and maintenance orders under the Act can be made whether or not matrimonial proceedings have
been fileda s set out in the Section 90 -101 of Childrens Act.
In the case of L. K. (on behalf of the minor child M. M. M. aged 4 years old v H. M.
K[2013]eKLR6,we find that the judges are now employing the principle of best interest as set
out in Article 53 (2) of the Constitution of Kenya 2010, that states that, A childs best interests
are of paramount importance in every matter concerning the child, and Article 3 of the united
nations Convention on the rights of children, 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 ( emphasis mine).
In this case the child was aged 4 years and had all the time been and still is in custody of the
applicant. That in June, 2012 the lower court delivered judgment in Meru C.M. Children Court
No. 28 of 2011 vesting the custody of the minor child to the applicant and the respondent was
ordered to provide for the childs upkeep and maintenance but has not complied with those
orders. The applicant averred as a result she was forced to leave the child with her mother
temporary to go and look for a job in Nairobi but she keeps on coming back home every two
weeks to check on the child.

6 Civil Appeal 25 of 2013

In addressing this issue the judge states that, In the instant application no evidence has been
tendered to show there are compelling circumstances to disqualify the applicant from
continuing to be in physical custody, care and control of the minor child. I find unless stay
is granted the applicant is going to lose the custody of the child and if the applicant
succeeds in appeal it would not be easy to get back the custody of the child. Thus the appeal
will be rendered nugatory. The respondent who has never been in custody of the minor
child and who is unknown to the child would not be prejudiced to await the outcome of the
appeal.
I find it is in the best interest of the welfare of the minor child that his custody be not
disturbed pending the hearing and determination of the appeal, otherwise ordering
otherwise would result to substantial loss to the childs welfare. The application has been
brought to court without unreasonable delay and as such ought to be granted.
Moreover in the case of Frank Omwange Omare & another v Kennedy James Omare Okore
[2009] eKLR ,7 the Judge ., Musinga underscores, It is trite law that in cases of custody of
children the paramount consideration is the welfare of the children.
It can be deduced from the various case laws that the best interest of the child interpreted literally
as the words stipulate. A party that acts in a manner that the court may perceive to be against the
best interest of the child custody is not granted to them as exemplified in the case of R.M.K v
C.L.K [2006] eKLR 8and Frank Omwange Omare & another v Kennedy James Omare
Okore [2009] eKLR9. The parties must be acting in good faith as well for them to be granted
custody.
Additionally, in terms of custody the children gender has been alsoa a factor that has been
considered as part of the best interest of thechild as was in the case of, in case of very young
female children, there is a rule in favour of the mother in the absence of exceptional
circumstances as held in the Joyce Muthoni Githunguri v Stanely Munga Githunguri CA No
90 of 1978 10case. Exceptional circumstances were interpreted in the case of N-V-K(2008) KLR
518 to include the fact that the children are boys and are big enough. In the judges words, It
is for their short term and long term welfare and as recommended by the Children Officers
that they should live with their father. I believe that this is one of the exceptional cases where
the mother should be denied custody of young children.
7 [2009] eKLR
8 [2006] eKLR
9 [2009] eKLR
10 CA No 90 of 1978

WHO CAN BE GRANTED CUSTODY UNDER THE ACT

Custody can be granted to parents of the child, guardian or it can be granted to any person who
applies for custody with the consent or a parent or guardian and that person must have had actual
custody of the child for a period of at least 3 months preceding the application.
In determining consideration of custody, the court is required to have regard to certain factors or
certain principles
1. The conduct and wishes of the parent or guardian of the child;
2. the ascertainable wishes of the relatives of the child;
3. ascertainable wishes of any foster parent or any person who has had actual custody of the child
for
the last 3 years preceding the application;
4. ascertainable wishes of the child
5. whether the child has suffered any harm or is likely to suffer any harm is the order is not
made.
6. Customs of the community to which the child belongs;
7. religious persuasion of the child;
8. whether any other order has been made in relation to the child that is the care order,
supervision order, protection or exclusion order and whether that order remains in force;
9. the circumstances of any siblings of the child and of any other children of the home; and
10. best interests of the child. A definition of the best interests of he child is given under Section
4(3)
(4) of the Act. That section firstly says that in all actions concerning children the best interest of
the child shall be of primary consideration and in (3) it is stated that any action will be
considered to be in the best interest of the child if it is calculated to firstly safeguard and promote
the rights and welfare of the child, If it is aimed at conserving and promoting the welfare of the
child and if it is aimed at securing for the child such guidance and correction as is necessary for
the welfare of the child and in the public interest. (this is a nebulous definition and leaves a lot to
the discretion of the court to determine what is in the best interests of the child, said to be a
disadvantage of these standards, but it has also been argued that it has its own advantages the
most important being that it is now focusing on the needs of the child, which is of paramount

consideration but it is said that it is difficult to apply since there is no uniformity. If depends on
different factors and on a case to case basis.
In conclusion, the Childrens Act in cases of custody on divorce the Act specifically provides
under Section 83(3) that in any case where a decree for judicial separation or divorce is
pronounced, if the court pronouncing the decree finds the parent by reason of whose misconduct
the decree has been given is unfit to have legal custody, then the parent so declared 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. In other words the conduct of parents just like in Common law is critical when
granting custody of children.11 The case at hand is similar in subject matter to the case of R.M.K
v C.L.K [2006] eKLR 12where the child was of 4 years and born to parents of different
nationalities though living in Kenya. the court looked into the conduct of the party at fault and
granted custory to the party that seeks custody with clean hands. Therefore in this case as well
the court discretion will be invoked to look into the intervening cicumstences, as discussed above
and grant custody accordingly.
Despite the harmonization of custodial requirements in the childrens Act there exist a real danger
as posed by Judge W. MUSYOKA , in the case of C Y C v K S Y [2014] eKLR 13in the stating
that, The Children Act was passed in 2001. It carries provisions that cover the matter of
custody and maintenance of children, the same matters that are the subject of Sections
26 and 30 of the Matrimonial Causes Act. The two statutes have parallel provisions on the
subject. The question is whether any of the two statutes takes precedence over the other.
The Children Act is the latter in time, but I do note that none of its provisions repeals the
provisions of the Matrimonial Causes Act which provide for custody and maintenance of
children. This means that parliament intended the provisions in the two statutes to remain
in force one being general, to cater for custody and maintenance of children in general;
and the other specific, to cover custody and maintenance of children in situations of divorce
or judicial separation. It leaves it to the discretion of the parties to elect between moving
the court under the Children Act or under the Matrimonial Causes Act. Similarly, there is
discretion to the court to opt between the two statutes it may entertain an application
under the Matrimonial Causes Act or direct the parties to pursue the issue of custody and
maintenance of children under the Children Act. In short the provisions of the Children
Act do not override those of the Matrimonial Causes Act over the matter.

11 http://www.kenyalawresourcecenter.org/2011/07/parental-rights-and-dutiesover.html Accessed on 4th September, 2014.

12 [2006] eKLR
13 [2014] eKLR

The respondent has placed an application before me under the Matrimonial Causes Act on
the issue of custody and maintenance of the children of the marriage the subject of these
proceedings. As mentioned earlier, there is jurisdiction vested in me to make the orders
sought under Section 30(1)of the the Matrimonial Cause Act. Should I exercise such
jurisdiction? I note that one of the children has since attained eighteen (18) years of age.
He has ceased to be a child and has become an adult, and the provisions of Section 30(1) of
the Act can no longer apply to him. I cannot therefore exercise discretion under Section
30(1) of the Matrimonial Causes Act in his favour. That leaves me with only one of the
children. I am reluctant to exercise dissolution under the Matrimonial Causes Act in
favour of one child. The provisions of the Children Act are broader and there is room there
to extend parental responsibility over someone beyond their eighteenth birthday. I have
power under Section 30(1) of the Matrimonial Causes Act to direct that proper proceedings
be taken regarding the welfare of the children so far as custody and maintenance are
concerned.