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K&A Insights
In Family Law · May 19, 2026
A comprehensive guide to child custody law in Kenya under the Children Act 2022 — covering joint, sole and actual custody, how courts apply the best interests principle, the role of the Children's Court, and practical guidance for Kenyan and foreign parents.
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
Published by GLE Member Firm | Updated to reflect current case law
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.
When parents separate, the most immediate and emotionally charged question is usually where the children will live and who will make decisions about their lives. This is the territory of custody law, and it is an area where Kenyan jurisprudence has evolved significantly under the Children Act 2022.
This article, the third in our Kenyan Family Law Series, explains the types of custody recognised under Kenyan law, the principles courts apply when making custody orders, the court process, and the key case law that has shaped the modern approach. It is addressed to Kenyan parents, foreign nationals with children in Kenya, and international advocates advising clients whose matters engage Kenyan jurisdiction.
ℹ️ Series Note: This is Article 3 of 6. Article 1 covered the Best Interests of the Child and Article 2 covered Parental Responsibility. Subsequent articles cover Co-Parenting and PRAs, Maintenance, and International Considerations.
Part IX of the Children Act 2022 (Sections 101 to 121) governs custody and maintenance. Before examining how custody works in practice, it is important to understand the statutory definitions that structure the analysis. These are drawn directly from Section 2 of the Act:
"custody" means lawful custody, whether by operation of law, written agreement or order of a Court of competent jurisdiction.
"actual custody" means the physical possession, care and control over a child, whether or not such custody is exercised independently or jointly with another person.
"legal custody" means the conferment, to a person, of parental rights and responsibilities of a person having lawful custody over a child for a defined period of time under an order of a Court of competent jurisdiction.
"care and control" with respect to a child, means all rights and duties which relate to the making of the day-to-day decisions concerning the child, and includes actual custody of a child.
These distinctions matter. Legal custody is about decision-making authority. Actual custody (care and control) is about physical care and day-to-day residence. A parent can hold legal custody without having primary actual custody, and courts regularly make orders that split these elements between parents.
Joint legal custody means that both parents share the authority to make major decisions about the child's life, including choices about education, healthcare, religion, and general welfare. This is the default position under Kenyan law, flowing directly from the equal parental responsibility framework in Sections 31 and 32 of the Children Act 2022.
Courts will grant sole legal custody to one parent only where there is compelling evidence that joint decision-making would be unworkable or harmful to the child, for example where one parent has been found to pose a risk to the child, has been absent and non-participatory over an extended period, or is otherwise demonstrably unfit.
In SMM v ANK, Nakuru High Court Children Appeal No. E011 of 2021 [2022] eKLR, Justice (Prof.) Joel Ngugi ordered joint legal custody shared between both parents, stating that there was no reason to restrict legal custody to one parent where there was no evidence that either parent was unfit to take on the role.
Actual custody (care and control) determines where the child primarily lives and who handles their daily routines. In most separated families, one parent becomes the primary carer (holding primary actual custody), with the other parent having scheduled access and visitation.
Joint actual custody, where the child spends significant and roughly equal time living with both parents, is increasingly available and appropriate in cases where both parents live in the same area, both have suitable living arrangements, and the arrangement is consistent with the child's schooling and developmental needs.
Sole custody vests both legal and actual custody in one parent. It is an exceptional arrangement, reserved for cases where one parent has been found unfit through abuse, neglect, addiction, or serious endangerment of the child. Even where sole custody is granted, the non-custodial parent typically retains access rights (visitation), unless the court determines that even supervised contact would harm the child.
⚠️ Important: Sole custody is not a reward for the 'winning' parent in a contested case. It is a protective measure for the child in exceptional circumstances. Courts do not grant it simply because the relationship between the parents has broken down acrimoniously.
Split custody refers to arrangements where siblings are divided between parents, each parent having sole custody of one or more children. This arrangement is rare and disfavoured under Kenyan law. Courts are reluctant to separate siblings, recognising the psychological and developmental importance of sibling relationships. Split custody requires specific court approval and compelling evidence that it serves each child's individual best interests.
Section 103 of the Children Act 2022 sets out the principles courts must apply when making custody orders. The court has regard to:
• The best interests of the child (the paramount consideration under Section 8 and the First Schedule)
• The conduct and wishes of the parent or guardian
• The ascertainable wishes of the relatives of the child
• Whether the child has suffered or is likely to suffer harm if the order is made or not made
• Any other relevant circumstances on a case-by-case basis
Section 104 of the Act imposes an important restriction: a person is prohibited from removing a child from the custody of the person with whom the child has had a home for a period (whether continuous or not) of three years, against the will of that person and without leave of the Court. This provision protects the continuity of a child's established living arrangements and prevents unilateral relocation or removal.
Every custody determination begins and ends with the best interests of the child as analysed through the First Schedule considerations, discussed in detail in Article 1 of this series. Factors typically considered include:
• The child's age, maturity, and special needs
• Each parent's capacity to provide emotionally, physically, and financially for the child
• The child's existing attachment to each parent and to their school, community, and family network
• The quality and stability of each parent's proposed living arrangement
• The child's own wishes, weighted according to age and maturity
• Any history of abuse, neglect, or domestic violence
• Each parent's willingness to facilitate the child's relationship with the other parent
That last factor is increasingly emphasised in Kenyan family courts: a parent who demonstrates a willingness to support the child's relationship with the other parent is viewed more favourably than one who seeks to marginalise or alienate the other parent.
Historically, the 'tender years doctrine' operated as a near-automatic presumption that mothers should have custody of children under 10. This doctrine has been decisively qualified by the Children Act 2022 and by recent judicial decisions.
The landmark case is SMM v ANK, Nakuru High Court Children Appeal No. E011 of 2021 [2022] eKLR, decided on 4 April 2022 by Justice (Prof.) Joel Ngugi at the High Court in Nakuru. The case involved two children aged 9 and 15, and their parents, who had been married in Alabama, separated, and both at various points returned to Kenya. The mother sought to relocate the children to the United States; the father sought primary custody in Kenya.
Justice Ngugi held:
“ SMM v ANK [2022]: "The Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. The welfare of the children is the primary factor of consideration when deciding custody cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child."
His Lordship awarded joint legal custody to both parents, with actual custody vested in the father in Kenya, citing the children's established school life, their family network in Kenya, and the practical difficulties of enforcing Kenyan court orders if the children were relocated abroad.
Similarly, in HGG v YP [2017] eKLR, the High Court affirmed that mothers are not automatically entitled to custody of young children. The focus shifted firmly to what each parent could offer the child, assessed on its merits.
Access rights flow from the constitutional and statutory framework as a right of the child, not merely a favour granted to the non-custodial parent. Section 11 of the Children Act 2022 affirms every child's right to parental care. Denying a child access to a parent is a serious step that requires clear justification grounded in the child's welfare.
Access orders typically specify:
• Scheduled contact time, for example alternate weekends and one weekday evening per week
• Holiday and school-break arrangements, often splitting major holidays between parents
• Special occasions such as birthdays and religious events
• Communication rights, including phone calls and video calls
Where a parent has a history of abuse, substance misuse, or behaviour that poses a risk to the child, the court may order supervised access: contact that takes place in the presence of a designated supervisor, such as a trusted family member or a professional social worker. Supervised access preserves the child's relationship with that parent while managing the identified risk.
Courts will not suspend access entirely unless they are satisfied that even supervised contact would harm the child. The bar for complete denial of access is high.
The Children Act 2022 treats interference with court-ordered access as a criminal matter. A person who hinders another from exercising access or parental responsibility pursuant to a court order or agreement, or who abducts a child to prevent such exercise, commits a criminal offence punishable by up to one year's imprisonment, a fine of up to Kshs. 500,000, or both.
A custodial parent who changes their residential address without notifying the other parent in writing commits a separate offence, punishable by a fine of up to Kshs. 200,000. These provisions apply regardless of the nationality of the offending parent.
Custody and access applications are primarily heard by the Children's Court, designated under Section 90 of the Children Act 2022, which sits as a division of the Magistrates' Court. The Children's Court has jurisdiction over any child habitually resident within its local area (Section 91). The High Court has concurrent jurisdiction and hears appeals from the Children's Court under Section 99, as well as first-instance matters raising constitutional questions or requiring urgent intervention.
• Filing: Either parent, a relative, or a Children's Officer can file an application for a custody or access order. The application sets out the orders sought and the facts relied on.
• Interim orders: Under Section 108, where urgent action is needed, the court can issue temporary custody orders without waiting for a full hearing. This is used, for example, where a child is at immediate risk or is about to be removed from Kenya.
• Children's Officer report: Under Section 97, the court typically orders a welfare report from a Children's Officer, who investigates the child's circumstances, interviews both parents and the child (where appropriate), and makes recommendations to the court.
• Hearing: Both parents are heard. Evidence is taken. The child's views are conveyed through the Children's Officer or, where appropriate, a guardian ad litem appointed under Section 98.
• Judgment and order: The court issues a custody order under Section 102, specifying who holds legal custody, who has actual custody, and the access arrangements.
Custody orders are not permanent and unchangeable. Section 107 allows the court to revoke or vary a custody order where there has been a material change in circumstances, such as a parent's relocation, a change in the child's needs, or a significant change in either parent's circumstances. Either parent may apply for variation.
For parents navigating custody in Kenya, the following practical points apply whether you are a Kenyan national, a foreign national, or a parent in a cross-border situation:
• Document your involvement: Keep records of school collections, medical appointments, activities, and daily care. Evidence of active parenting is important.
• Do not remove the child from the jurisdiction: Removing a child from Kenya without the other parent's consent or a court order is a criminal act and will severely prejudice your custody case.
• Engage with the Children's Officer process: The welfare report is an important input to the court's decision. Be cooperative, honest, and child-focused in your engagement.
• Keep adult conflict out of the child's space: Courts are sensitive to the harm caused by parental conflict. A parent who can demonstrate calm, cooperative co-parenting is far more credible than one who cannot.
• Get legal advice early: Custody proceedings are emotionally intense and legally complex. Early advice from a qualified Kenyan advocate allows you to make informed decisions, rather than reactive ones.
Custody law in Kenya has moved decisively away from presumptions based on gender or marital status, and towards a genuinely child-centred inquiry. The Children Act 2022, reinforced by a growing body of judicial decisions, requires courts to examine each child's individual circumstances, needs, and relationships, and to make orders that serve that specific child's best interests.
For parents, this means approaching custody not as a contest to be won but as a framework to be designed around the child's needs. For legal practitioners, it means developing evidence that speaks to the child's welfare, not to the parents' grievances.
Key Legal References
Constitution of Kenya, 2010, Articles 53(1) and 53(2)
Children Act, No. 29 of 2022, Sections 2, 8, 90, 91, 95, 97, 98, 99, 101, 102, 103, 104, 107, 108, First Schedule
SMM v ANK, Nakuru High Court Children Appeal No. E011 of 2021 [2022] eKLR, per Justice (Prof.) Joel Ngugi, delivered 4 April 2022
HGG v YP [2017] eKLR (High Court of Kenya)
DISCLAIMER: 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.
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
