KENYAN FAMILY LAW SERIES | ARTICLE 1 OF 6

The Best Interests of the Child:

Kenya’s Paramount Principle

A guide for Kenyan parents, foreign nationals with children in Kenya, and international advocates

Under the Children Act, No. 29 of 2022 and the Constitution of Kenya, 2010

April 2026 

IMPORTANT: This article is for general informational purposes only and does not constitute legal advice. Consult a qualified Kenyan advocate for advice specific to your situation.

Introduction

When a family breaks down, the law does not ask which parent suffered more, who initiated the separation, or who earns the higher income. It asks one question above all others: what is in the best interests of this child?

That question sits at the heart of every custody, access, maintenance, and co-parenting decision made by Kenyan courts. It is not a guideline or a preference. It is a constitutional mandate, reinforced by statute, and applied in every matter concerning a child in Kenya, regardless of the nationality or domicile of the parents involved.

This article, the first in our six-part Kenyan Family Law Series, explains what the ‘best interests of the child’ principle means, where it comes from, how courts apply it in practice, and why understanding it is the essential foundation for every other topic in this series.

ℹ️  Series Note:  This is Article 1 of 6 in our Kenyan Family Law Series. Subsequent articles cover Parental Responsibility, Custody, Co-Parenting and PRAs, Maintenance, and International Considerations.

1. The Constitutional Foundation

Article 53 of the Constitution of Kenya, 2010

The starting point is the Constitution of Kenya, 2010. Article 53(1) sets out the rights of every child in Kenya, including the right to a name and nationality, basic nutrition, shelter and healthcare, protection from abuse and exploitation, and parental care and protection from both parents regardless of whether they are married.

Article 53(2) then establishes the governing principle for every matter concerning a child:

“  A child’s best interests are of paramount importance in every matter concerning the child.

The word ‘paramount’ is deliberate and significant. It does not mean that a child’s best interests are one of several equally weighted factors. It means they take precedence. They override the preferences, convenience, financial arguments, and emotional positions of either parent. Courts in Kenya have repeatedly affirmed that Article 53(2) is not a mere aspiration but a binding constitutional standard.

These protections apply to every child present in Kenya. Foreign children, children of non-citizen parents, and children in mixed-nationality families are equally entitled to the protection of Article 53.

2. Statutory Codification Under the Children Act 2022

Section 8 and the First Schedule

The Children Act, No. 29 of 2022, which came into force on 26 July 2022, gives statutory effect to Article 53. Section 8(1) provides:

“  Section 8(1):  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 the primary consideration.

Section 8(2) extends this obligation to all judicial and administrative institutions, requiring them to treat the child’s interests as the first and paramount consideration in exercising any powers under the Act or any other written law. The scope is deliberately broad: it applies not only to courts, but to government agencies, social welfare bodies, and any institution making decisions that affect children.

The Statutory Definition

Section 2 of the Children Act 2022 provides the following definition:

“best interest of the child” means the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53(1) of the Constitution and section 8 of this Act.

This definition is significant for two reasons. First, it is structured around four pillars: survival, protection, participation, and development. These are not merely rhetorical; they align with the four broad categories of children’s rights under international law, and courts apply them in a holistic and complementary manner. Second, the definition expressly incorporates Article 53(1) of the Constitution, creating a seamless link between the constitutional rights framework and the Act.

The First Schedule: Best Interest Considerations

The First Schedule to the Children Act 2022 sets out the specific considerations courts must weigh when applying the best interests test. These include:

• The age, maturity, stage of development, gender, background, and any other relevant characteristics of the child
• Any distinct special needs arising from chronic illness or disability
• The relationship of the child with each parent, guardian, or other persons who significantly affect the child’s welfare
• The preference of the child, if old enough to express a meaningful preference
• The duration and adequacy of the child’s current living arrangements, and the desirability of maintaining continuity
• The capacity of each parent to provide for the child’s emotional, psychological, physical, and developmental needs
• The conduct and wishes of the parent or guardian
• Whether the child has suffered or is likely to suffer harm if a particular order is made or not made
• The ascertainable wishes of the child’s relatives

This list is not exhaustive. Courts may consider any other factor they deem relevant to the particular child’s circumstances. The test is deliberately flexible, requiring an individualised assessment rather than a mechanical checklist.

3. The Four Pillars in Practice

Survival

The survival pillar encompasses the child’s most fundamental rights: adequate nutrition, healthcare, shelter, clothing, and physical safety. In custody and maintenance disputes, courts apply this pillar when assessing whether a proposed living arrangement meets the child’s basic needs, and whether the proposed maintenance provision is sufficient to sustain the child’s health and wellbeing.

A parent who cannot demonstrate the capacity to meet a child’s basic survival needs will find that courts are unlikely to award primary custody, regardless of other favourable factors.

Protection

Protection covers the child’s right to be free from abuse, neglect, exploitation, and harmful cultural practices. Courts apply this pillar when assessing whether a parent’s conduct poses a risk to the child, whether a particular living arrangement exposes the child to harm, and whether restricting access to one parent is justified.

The protection pillar also encompasses protection from psychological harm, including the harm caused by high-conflict parenting situations, parental alienation, and exposure to adult disputes. Courts are alert to the reality that children suffer harm not only from direct abuse, but from being weaponised in parental conflict.

Participation

The participation pillar reflects the child’s right to be heard in matters that concern them. Section 95 of the Children Act 2022 requires courts to give appropriate weight to the child’s views, depending on the child’s age and maturity. This is not an absolute right to determine outcomes; a young child’s stated preference will be given less determinative weight than that of a teenager. However, courts are required to create appropriate conditions for the child’s voice to be heard and genuinely considered.

In practice, this may involve the appointment of a guardian ad litem under Section 98 of the Act to represent the child’s interests independently of either parent. Children’s views are typically conveyed to the court through the Children’s Officer’s report under Section 97.

Development

The development pillar is perhaps the most forward-looking. It requires courts to consider not only the child’s present circumstances but their long-term flourishing: access to education, cultural and religious development, psychological health, and the preservation of meaningful relationships with extended family and community. This pillar underlies courts’ preference for arrangements that maintain the child’s established routines, friendships, school environment, and family network.

In SMM v ANK, Nakuru High Court Children Appeal No. E011 of 2021 [2022] eKLR, Justice (Prof.) Joel Ngugi applied the development pillar explicitly when noting that if the children were relocated to the United States, they ‘will not have the network of family support and bonding that is happening in Kenya,’ and that their kin and kith living in Kenya formed part of their developmental environment. The court’s preservation of that network was central to its custody determination.

4. How Courts Apply the Test

An Individualised, Holistic Assessment

Kenyan courts consistently emphasise that the best interests test cannot be applied mechanically. Each child’s circumstances are unique, and a factor that weighs heavily in one case may be irrelevant in another. The test demands a holistic, child-specific inquiry that looks at the full picture of the child’s life, relationships, needs, and risks.

What courts are not permitted to do is prioritise adult interests, however compelling, over the child’s welfare. A parent’s financial hardship, emotional suffering, or logistical inconvenience may be acknowledged as context, but cannot displace the child’s interests as the primary consideration.

The Displacement of Gender-Based Presumptions

For decades, the ‘tender years doctrine’ created a presumption that children under ten were better cared for by their mothers. The Children Act 2022, together with the constitutional guarantee of equal parental responsibility, has decisively qualified this presumption.

In SMM v ANK [2022] eKLR, Justice Ngugi held that the tender years doctrine ‘can no longer be considered as an inflexible rule of law’ and that it ‘must now be explicitly subjected to the Best Interests of the Child Principle.’ Similarly, in HGG v YP [2017] eKLR, the High Court affirmed that mothers are not automatically entitled to custody of young children absent exceptional circumstances.

The modern position is clear: neither parent has a presumptive advantage based on gender or the child’s age. The inquiry begins and ends with the child’s specific needs and each parent’s demonstrated capacity to meet them.

The Child’s Voice

A recurring theme in modern Kenyan family law jurisprudence is the growing weight given to the expressed preferences of older children. Courts will not simply ask what parents want; they will, through appropriate mechanisms, ask what the child needs and, where age and maturity permit, what the child wants.

This does not mean children determine their own custody arrangements. It means their perspective is a genuine and material input into the court’s decision. A child of 14 or 15 who expresses a clear, reasoned preference for one living arrangement will find that preference carries significant weight.

5. International Law Context

Kenya’s best interests framework does not exist in isolation. The Children Act 2022 gives effect to Kenya’s obligations under two key international instruments:

UN Convention on the Rights of the Child (UNCRC)

Article 3(1) of the UNCRC, to which Kenya is a party, provides that in all actions concerning children, whether by public or private social welfare institutions, courts, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration. The UNCRC also enshrines the child’s right to maintain personal relations and direct contact with both parents when separated from one or both (Article 9), and the right to be heard in judicial and administrative proceedings affecting the child (Article 12).

African Charter on the Rights and Welfare of the Child (ACRWC)

Article 4 of the ACRWC mirrors the best interests standard and adds an African regional dimension, recognising the importance of family, community, and cultural context in the realisation of children’s rights. Kenyan courts draw on both instruments when interpreting the domestic framework.

⚖️  For International Practitioners:  Kenyan courts are familiar with both the UNCRC and ACRWC, and welcome submissions grounded in these instruments. However, domestic constitutional and statutory provisions are primary, and international instruments are applied as interpretive aids rather than overriding authority.

6. Practical Implications for Parents and Advisers

For Parents

Understanding the best interests principle reframes the entire approach to post-separation parenting. The question is never ‘what do I want?’ or ‘what does my co-parent deserve?’ The question is always ‘what does my child need?’

Parents who approach separation with this framing, and who can demonstrate to a court that their decisions are driven by the child’s needs rather than adult grievances, are far more likely to achieve outcomes that are durable, enforceable, and genuinely good for their children.

• Focus every proposal, agreement, and submission on what it does for the child, not what it does for you
• Document your involvement in your child’s daily life: school runs, medical appointments, homework, activities
• Avoid conduct that a court could characterise as prioritising your interests over your child’s, including disparaging the other parent, disrupting handovers, or withholding information
• Where you disagree with a proposed arrangement, frame your objection in terms of its impact on the child, not its inconvenience to you

For International Advocates

Foreign practitioners advising clients on matters involving children in Kenya should note that the best interests standard operates as a mandatory, non-waivable filter through which every decision passes. It is not possible to contract out of it. A foreign court order, a foreign jurisdiction agreement, or a private arrangement between parents will be assessed by Kenyan courts through this lens.

Where a foreign order conflicts with what a Kenyan court considers to be in the child’s best interests, the Kenyan standard will prevail for any child habitually resident in Kenya. This has significant implications for cross-border custody disputes, which are addressed in depth in Article 6 of this series.

Conclusion

The best interests of the child is not a slogan. In Kenyan law, it is the supreme principle governing every decision that affects a child’s life. Anchored in Article 53 of the Constitution, codified in Section 8 and the First Schedule of the Children Act 2022, and refined through a growing body of judicial decisions, it demands that every court, every parent, and every adviser ask one question first: what does this child need?

The remaining articles in this series apply this principle to specific areas: parental responsibility, custody, co-parenting agreements, maintenance, and international matters. In each of those areas, the best interests of the child is not a background consideration. It is the lens through which every answer must be found.

Key Legal References

Constitution of Kenya, 2010, Articles 53(1) and 53(2)

Children Act, No. 29 of 2022, Section 2 (definition), Section 8, First Schedule

UN Convention on the Rights of the Child, Articles 3 and 9

African Charter on the Rights and Welfare of the Child, Article 4

SMM v ANK, Nakuru High Court Children Appeal No. E011 of 2021 [2022] eKLR, per Justice (Prof.) Joel Ngugi

HGG v YP [2017] eKLR (High Court of Kenya)

DISCLAIMER: This article is provided for general legal education and information only. It does not constitute legal advice and does not create an advocate-client relationship. For advice specific to your situation, please consult a qualified Kenyan advocate.

Kenyan Family Law Series

Article 1 of 6  |  The Best Interests of the Child: Kenya’s Paramount Principle

Article 2 of 6  |  Parental Responsibility in Kenya: Rights, Duties and Equality

Article 3 of 6  |  Child Custody in Kenya: Types, Court Process and Key Principles

Article 4 of 6  |  Co-Parenting and Parental Responsibility Agreements in Kenya

Article 5 of 6  |  Child Maintenance in Kenya: Financial Obligations After Separation

Article 6 of 6  |  International and Cross-Border Child Custody Matters in Kenya