Parental Rights and Responsibilities Under Kenyan Law.

In Kenya, the rights and responsibilities of parents are outlined in various laws, including the Constitution of Kenya (2010), the Children Act (2022), and other related statutes. Here’s a highlight of the parental rights and obligations in the context of Kenyan law:

1. The Constitution of Kenya (2010)

Under Article 53 of the Constitution, every child has the right:

• To parental care and protection, which includes equal responsibility of the mother and father, whether they are married to each other or not.
• To be protected from abuse, neglect, harmful cultural practices, and all forms of violence or exploitation.

2. The Children Act (2022)

The Children Act (2022), which replaced the earlier 2001 version, is the key legal instrument regarding parental rights and responsibilities. The Act reinforces the Constitution's provisions regarding the protection and rights of children, and it includes the following aspects:

Parental Responsibility (Sections 23–29 of the Children Act)

Parental responsibility refers to all the duties, rights, powers, and authority that a parent has in relation to a child. This includes:

• Providing the child with basic needs such as food, shelter, and education.
• Ensuring proper guidance and upbringing of the child.
• Protecting the child from harm, neglect, and exploitation.

Both parents, whether married, separated, or divorced, are obligated to share parental responsibility.

Automatic Parental Responsibility

• For married parents: Both the mother and father automatically acquire parental responsibility from the moment of the child’s birth. Any variation is at the discretion of the court and on a case to case basis.
• For unmarried parents: The mother automatically acquires parental responsibility at birth, while the father must either apply for it through a court order or agree in writing with the mother to share it.

Termination of Parental Responsibility

Parental responsibility continues until the child reaches the age of 18. However, the court may end parental responsibility earlier in certain circumstances, such as if a parent is deemed unfit or if there is a danger to the child’s welfare.

3. Custody, Access, and Maintenance of Children

In cases of separation or divorce, the courts in Kenya determine custody, access, and maintenance based on the best interests of the child, in accordance with the Children Act:

• Custody: Courts can grant custody to either parent or both, depending on the child’s welfare. The court will also consider the ability of each parent to provide for the child's emotional and material needs.
• Access (Visitation Rights): A parent who does not have custody is generally granted access to the child. This is aimed at maintaining the child's relationship with both parents.
• Maintenance: Both parents are responsible for maintaining the child financially, including providing for education, healthcare, and general well-being. The court may order a parent to pay maintenance to the other for the child’s care.

4. Adoption and Guardianship

In addition to biological parenthood, the law in Kenya provides mechanisms for adoption and guardianship under the Children Act, which allow individuals (including non-biological parents) to take legal responsibility for a child. Adoption legally transfers parental rights and responsibilities to the adoptive parent, while guardianship grants the right to make decisions for a child without severing the legal ties between the child and their biological parents.

5. Rights of Children Born Out of Wedlock

Under Kenyan law, children born out of wedlock have equal rights to those born to married parents. Both parents are required to care for and provide for their child regardless of their marital status. This ensures that a father, for instance, cannot deny parental responsibility for a child born outside marriage.

6. Protection Against Parental Abuse

The law also protects children from parental abuse and neglect. In cases where a parent is abusive or unable to provide a safe environment, the courts may intervene to remove the child from the parent’s custody or even revoke their parental rights.

Kenyan law emphasizes the child’s best interests when determining parental rights and responsibilities. Both parents are equally responsible for the child's well-being, irrespective of their marital status. Parents must ensure the provision of basic needs, protection, education, and emotional support for their children.

About the Writer

Makori VA is a founding and managing partner at Atandi & Co. Advocates, based in Kenya. His expertise spans a broad range of legal fields, including litigation, commercial law, corporate law, and intellectual property. He holds a Master's Degree in International Commercial Law and certifications in security, protection, and data protection.

Makori is also an advocate for human rights, public participation, and the inclusion of marginalized communities in governance. His firm emphasizes providing trusted and personalized legal services(atandi & Co. Advocates).