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Analysis · Children's Rights

Understanding the Best Interest of the Child Principle in Kenyan Law

An in-depth analysis of how Kenyan law applies the best interest of the child principle across family proceedings, child protection matters and constitutional litigation.

Winfred Osimbo Lichuma, EBS 14 min read

Introduction

The best interest of the child is the cornerstone of Kenya's child protection legal framework. Anchored in Article 53(2) of the Constitution of Kenya 2010, the principle mandates that in all matters concerning a child — whether in court proceedings, administrative decisions or legislative action — the child's best interest must be the paramount consideration.

This principle is not new to Kenyan law. It predates the 2010 Constitution and was embedded in the now-repealed Children Act, Cap 141. What the Constitution did was elevate it from a statutory principle to a constitutional imperative — placing it beyond legislative encroachment and making it enforceable directly against the State and private actors.

The Constitutional Framework

Article 53 of the Constitution of Kenya 2010 provides every child with a suite of fundamental rights, including the right to parental care and protection, the right to basic nutrition, shelter, healthcare and education, and protection from abuse, neglect, harmful cultural practices, all forms of violence and hazardous or exploitative labour.

Article 53(2) is the operationalising provision: "A child's best interests are of paramount importance in every matter concerning the child." The use of the word paramount is significant — it means the child's interests are not merely a relevant consideration, but the primary one that overrides competing interests where they genuinely conflict.

Application in Family Court Proceedings

In custody, access and guardianship proceedings, Kenyan courts apply the best interest principle through a multi-factor analysis. Relevant considerations include:

  • Age and attachment: Courts generally favour placing very young children with the primary caregiver, typically the mother in early years, though this is not an absolute rule.
  • Parental capacity: The ability of each parent to meet the child's physical, emotional and developmental needs.
  • Continuity and stability: Disruption to established routines, schooling and social relationships carries weight against change.
  • The child's own views: Under the Children Act 2022, the views of a child who is capable of forming them must be given due weight, calibrated to the child's age and maturity.
  • Domestic violence history: A history of violence in the household is a significant negative factor for custody or unsupervised access.

The High Court (Family Division) has consistently held that neither parent has an automatic superior claim to custody — the child's welfare is the decisive criterion.

The Children Act 2022 and Reinforcement of the Principle

The Children Act 2022 (which repealed the Children Act, Cap 141) significantly strengthened the best interest framework. Key provisions include:

  • Section 4: Codifies the best interest principle as the primary consideration in all proceedings, decisions and actions concerning a child.
  • Section 5: Provides for the appointment of a guardian ad litem or children's officer to represent the child's interests in proceedings where they may be inadequately represented.
  • Section 186–193: Strengthens child protection orders and the powers of children's courts to intervene where a child is at risk.

The Act also introduces enhanced protections against online exploitation, expands the definition of harmful practices, and clarifies the obligations of institutions and professionals who work with children.

Constitutional Litigation and the Best Interest Principle

The best interest of the child principle is not limited to private family law proceedings. It has been applied in constitutional petitions challenging policies and administrative decisions that affect children's rights. Courts have used Article 53(2) to:

  • Strike down or modify school admission policies that excluded children without registration documents.
  • Order the State to provide alternative care arrangements for children in conflict with the law.
  • Challenge the detention of children in adult facilities.
  • Address the rights of children born in refugee settings.

WTT Lichuma Advocates LLP has been at the forefront of children's rights advocacy in Kenya, with our Senior Partner Mrs. Winfred Osimbo Lichuma having played a direct role in shaping the legislative framework that governs this principle.

Practical Implications for Parents and Guardians

For parents in separation or divorce proceedings, the best interest principle has concrete implications:

  1. Neither parent wins by default: The standard is not which parent is "better" in the abstract, but which arrangement best serves the child.
  2. Parental conflict is harmful: Courts view high-conflict parenting arrangements as contrary to the child's interest. A parent who alienates the child from the other, absent genuine safety concerns, undermines their own custody position.
  3. Stability matters: Frequent relocation, school changes and disruption to the child's social and community ties are viewed unfavourably.
  4. Child support and custody are separate: A non-custodial parent's failure to pay maintenance does not justify denying access — and vice versa.

Conclusion

The best interest of the child principle is one of the most powerful and flexible doctrines in Kenyan law — capable of shaping outcomes across family courts, constitutional courts and administrative proceedings. For parents, guardians, institutions and the State, understanding and applying this principle is both a legal obligation and a moral imperative.

If you are involved in a matter affecting a child's rights or welfare, contact WTT Lichuma Advocates LLP for guidance from a team with deep experience in children's rights law.

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