In many Kenyan families, dowry payment is a symbol of union, respect and tradition. But in a recent legal battle concerning child custody, it became something else entirely—a condition for a father to reclaim his own daughter.
The nine-year-old case has thrown into sharp focus a troubling question: when cultural expectations collide with constitutional rights, who decides the fate of a child?
At the centre of the dispute was a girl born in 2014, moments before her mother died during childbirth.
In the immediate aftermath, her maternal grandparents took her in. They raised her, becoming her primary caregivers through infancy and early childhood.
Her father did not disappear. Court records show the father continued to play a role in the child’s life after birth. He regularly sent money to the in-laws for upkeep of the child, provided food and basic needs, and secured medical cover for her.
He also employed a house help to assist the grandparents with the child’s care and maintained contact through visits, including attending her birthday celebrations and spending time with her as she grew up.
But as the years passed, a divide grew between the two sides of the family.
When the father later sought to take full custody of the girl, the grandparents resisted. The disagreement escalated into a legal battle that moved from the Children’s Court in Kerugoya in 2017 to the High Court in 2020, and finally to the Court of Appeal in Nyeri in 2023, leading to a judgment delivered last week.
Central to the conflict was more than caregiving. The grandparents argued that the man had not fulfilled customary expectations tied to their daughter as she was his wife. They said that before he could take up physical, legal, and custody of the child, he had to formally pay dowry and complete traditional rites.
The father told the court he had engaged the grandparents and even involved elders in an attempt to resolve the dispute. He said he had paid part of the dowry and customary requirements.
He further testified that he had remarried and had another child. “She will be welcomed into a nuclear family complete with a mother’s love and a sibling to play and grow up with, which are key components of a child's development,” he argued.
The Children’s Court initially allowed the grandparents to retain custody until the child turned 11. The father was granted access and parental responsibility. But the High Court overturned that decision, ruling that the father, as the surviving parent, should have custody.
Complementary relationship
The matter reached the Court of Appeal after the grandparents challenged that ruling. In its judgment, the appellate court dismissed the appeal and upheld the High Court’s decision. It placed the child’s custody firmly with her father.
The judges framed the dispute as one shaped by competing forms of care and attachment. They acknowledged that both the grandparents and the father had shown concern for the child’s welfare.
“The child needs both the father and the grandparents in her life,” the court observed, adding that such relationships “should always be complementary.”
But the court was clear that when such interests clash, the law must prevail. Citing the Constitution and the Children Act, the judges reaffirmed that the best interests of the child are paramount in all decisions affecting minors. They emphasised that parental responsibility rests primarily with the biological parents, regardless of marital status or cultural considerations.
Addressing the role of customary practices, the court observed that though traditions may be valued such practices cannot override a child’s rights.
“Customs cannot override the interest of the child,” the court said.
The court said it found no evidence to suggest the father was unfit or incapable of caring for his daughter. It noted that he had a good job and was ready to take full parental responsibility of his child.
“There is absolutely no reason why she should be denied parental love and care,” the court said.
The court further noted that separating a child from a parent should only occur where it is clearly in the child’s best interests.
“Nothing untoward was placed before the court to deny the minor the love and care of the only other parent alive, who has the ability and means to love, nurture, and care for her well-being in a conducive family setting,” said the court.
The judges dismissed the grandparents’ appeal, saying it lacked merit.
The grandparents had argued that the child had lived with them for years and was emotionally settled.
They also questioned whether the father, as a man, was best placed to care for a young girl. But the court found that these concerns did not outweigh the child’s right to be with her surviving parent, especially in the absence of evidence of harm or neglect.
The judges also rejected the notion that cultural conditions could determine custody. They noted that the dispute had been driven, in part, by demands tied to dowry and customary rites.
Those demands, the court found, had contributed to the breakdown in relations between the two sides.
In resolving the case, the court returned to a central constitutional principle that every child has the right to parental care and protection.
That right, the judges said, includes equal responsibility of both parents and cannot be limited by external conditions.
The court further noted that separating a child from a parent should only occur where it is clearly in the child’s best interests. In this case, no such circumstances had been shown.
“Nothing untoward was placed before the court to deny the minor the love and care of the only other parent alive, who has the ability and means to love, nurture, and care for her well-being in a conducive family setting,” said the court, dismissing the grandparents appeal. The judges said it lacked merit.
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