I am a parent to a four‑year‑old boy. His mother was recently transferred to a new location, which she did not disclose to me. She was supposed to take our son with her, but I had already paid his third‑term school fees, so he remained with me. She has now told me that I can stay with him only for this term, and that she will take him back once schools close. My question is, if she does not personally stay with the child and instead leaves him in the care of her sister or mother, do I have the right to seek custody of the child again?
Kenyan law begins from the premise that children are among the most vulnerable groups and therefore require heightened protection. Questions of custody, residence, and parental responsibility are governed by the Constitution and the Children Act, 2022, both of which place the child at the centre of all decisions. Parental preference is irrelevant where it undermines the child’s rights.
The foundation of all child‑related decisions is Article 53(2) of the Constitution, which states that “a child’s best interests are of paramount importance in every matter concerning the child.” This principle overrides assumptions of parental superiority and requires an examination of the child’s actual circumstances—daily care, schooling, emotional stability, and physical presence.
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The Children Act, 2022 reinforces this standard. Section 8 provides that the best interests of the child are the primary consideration, while Section 5 affirms equal parental responsibility unless a court orders otherwise. Neither parent can rely on gender or tradition to claim automatic custody; what matters is the caregiving environment that best promotes the child’s wellbeing. Custody is therefore not a parental entitlement but an assessment of welfare, stability, and daily care.
Kenyan courts consistently apply these principles when determining custody. In J.O. v S.A.O. (2016), the High Court held that custody is guided by the child’s welfare rather than parental claims. In JKN v HWN (Civil Appeal 40 of 2014) [2019], the Court of Appeal affirmed that custody may be granted to the father where he provides a more stable environment.
As Justice Joel Ngugi observed, “the upshot of this is that the custody orders in this case cannot stand as given. The best interests of the child dictate a revision… the conclusions above do not point to the need or superiority of either parent getting sole actual or legal custody of the children.” Similarly, in B.K. v E.J.H. (2012) , the court clarified that the best‑interest test must be objective and cannot be dictated by parental or child preferences.
In your situation, you have been caring for your four‑year‑old son, ensuring schooling and daily support. If the mother intends to take the child but will not personally stay with him—leaving him with relatives—the law treats this as significant. Under Section 81 of the Children Act, custody orders must reflect the child’s need for care, protection, guidance, and control. Delegating daily care to third parties may be challenged if it does not meet the child’s best interests.
Courts have declined custody where a parent intended to leave the child with relatives, holding that custody belongs to the parent who provides direct, consistent care. This demonstrates how courts treat situations where a parent is absent and relies on others for caregiving.
Allowing the mother to take the child temporarily does not extinguish your parental rights. The Children Act recognises parental responsibility as continuous, and you may seek custody, shared custody, or regulated access if circumstances change or the child’s welfare is compromised. In MAK v RMAA & 4 Others (2023 ), the court affirmed that parental responsibility cannot be waived simply because one parent has temporarily relinquished physical custody.
Kenyan jurisprudence continues to reinforce this position. Beyond the Constitution and the Children Act, courts have consistently held that parental care is equally shared, even though the expression of that equality may differ depending on the child’s needs. The case law demonstrates that custody is determined by the welfare, interests, and rights of the child, but not parental preference.
In the situation described, if the mother takes the child but does not personally provide care, and instead delegates her responsibilities to relatives, you have grounds to approach the court for shared custody. The law prioritises stability, safety, and direct caregiving, and judicial precedents repeatedly affirm that custody belongs to the parent who offers the most stable and supportive environment.
