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

Introduction

A child's financial needs do not pause because their parents' relationship has ended. Housing, food, clothing, school fees, medical care, extracurricular activities, and all the other ordinary costs of childhood continue regardless of separation or divorce. Kenyan law is unambiguous on this point: both parents are jointly responsible for meeting those needs, and that responsibility cannot be avoided by reason of marital status, distance, or disagreement.

This article, the fifth in our Kenyan Family Law Series, explains the legal framework for child maintenance in Kenya: what the obligation covers, how courts assess and quantify it, what happens when it is not paid, and the specific considerations that arise in international and cross-border situations.

ℹ️  Series Note: This is Article 5 of 6. Previous articles covered the Best Interests of the Child, Parental Responsibility, Custody, and Co-Parenting and PRAs. Article 6 covers International and Cross-Border Considerations.

1. The Legal Obligation: Section 110 of the Children Act 2022

The foundation of child maintenance law in Kenya is Section 110 of the Children Act 2022. It provides:

“  Section 110: Unless the Court otherwise orders, it shall be the joint duty and responsibility of both parents, whether or not they are married, to maintain the child.

Several features of this provision deserve emphasis:

• The obligation is joint: both parents are responsible, not just the non-custodial parent or the higher earner

• The obligation exists regardless of marital status: it applies to married parents, divorced parents, separated parents, and parents who were never married

• The obligation is not contingent on custody: a parent who does not have primary custody of a child is still legally required to contribute to the child's maintenance

• The obligation is non-waivable by private agreement: parents cannot contract out of the duty to maintain their child

Section 31 of the Act reinforces this, listing the maintenance of the child as an express component of parental responsibility, including in particular the provision of basic education, medical care, shelter, and other basic needs.

What Is a 'Maintenance Order'?

Section 2 of the Children Act 2022 defines a maintenance order as:

"maintenance order" an order issued by a court directing a specified person to make such periodic or lump sum payment for the maintenance of the child on such terms as the Court may consider appropriate.

This definition accommodates both regular periodic payments (such as monthly contributions) and one-off lump sum payments where appropriate.

2. What Maintenance Covers

Child maintenance is not limited to school fees. The obligation under Sections 31 and 110 extends to the child's full range of needs. In practice, maintenance encompasses:

• School fees and associated educational expenses (uniforms, books, transport)

• Medical and dental care, including health insurance contributions

• Food and basic nutrition

• Shelter and utilities

• Clothing appropriate to the child's age and circumstances

• Extracurricular activities and developmental opportunities

• Childcare costs where relevant

• Extraordinary expenses arising from special needs, disability, or chronic illness

Courts take a broad and practical view of what a child's needs encompass, calibrated to the standard of living the child enjoyed before the separation where this is relevant to the assessment.

3. How Courts Assess Maintenance

Section 111: Power to Make Maintenance Orders

Section 111 of the Children Act 2022 grants the court power to make maintenance orders. Section 113 provides for financial provision for the child more broadly. When determining the appropriate level of maintenance, the court takes into account a range of circumstances, including:

• The income, earning capacity, property, and other financial resources that each parent has or is likely to have in the foreseeable future

• The financial needs, obligations, and responsibilities that each parent has or is likely to have in the foreseeable future

• The financial needs of the child

• The standard of living enjoyed by the child before the breakdown of the family

• Any physical or mental disability, illness, or developmental condition of the child

• The manner in which the child is being educated or trained, and the likely future educational needs

• Whether any person, other than the parents, has assumed responsibility for the child

The court's assessment is holistic and proportionate. It does not simply divide costs equally if the financial positions of the parents are materially different. The underlying principle remains the best interests of the child: maintenance should meet the child's actual needs, within the realistic capacity of the contributing parent.

No Cap Based on Claimed Affordability

A consistent theme in Kenyan case law is that a parent's subjective sense of what they can or cannot afford is not determinative. In JMR v RNM [2022] eKLR, Lady Justice M. Odero refused to stay maintenance orders pending appeal, observing that denying maintenance was directly contrary to the children's best interests, and that the applicant's contention that the amounts were excessive was a matter for the appeal to determine, not a ground for interim relief.

In Children's Appeal Case 58 of 2023, the court affirmed that Sections 11, 32, 110, 113, and 118 of the Children Act empower the court to make orders necessary for the maintenance of children, and that Section 8 and Article 53(2) of the Constitution uphold the welfare of the children as paramount. A parent who does not comply with a maintenance order cannot simply point to financial hardship without the court making its own assessment of their actual capacity.

4. Step-Parents and Extended Financial Obligations

The financial responsibility framework is not limited to biological parents. Section 114 of the Children Act 2022 provides for financial provisions by step-parents and presumptive guardians. Where a step-parent has assumed a parenting role in relation to a child, the court has the power to make financial provision orders against them in appropriate circumstances. This is particularly relevant in blended families and requires careful consideration when drafting Parental Responsibility Agreements involving remarried parents.

5. Maintenance During Matrimonial Proceedings

Section 112 of the Children Act 2022 specifically provides for maintenance during matrimonial proceedings. Where a marriage is being dissolved or parties are legally separated, the court hearing the matrimonial matter may make interim or permanent maintenance orders for the children. These orders can be made at the same time as orders relating to the matrimonial property, ensuring that children's financial welfare is addressed as an integral part of the dissolution process rather than as an afterthought.

6. Variation of Maintenance Orders

Sections 119 and 120: When Orders Can Be Varied

Maintenance orders are not fixed for life. Section 119 gives the court power to impose conditions on, or to vary, an existing maintenance order. Section 120 provides specifically for the variation of maintenance agreements. Either parent may apply to the court for a variation where there has been a material change in circumstances.

Common grounds for variation include:

• A significant change in the paying parent's income or employment status (for example, loss of employment or a substantial increase in earnings)

• A significant change in the receiving parent's financial circumstances

• The child's changing needs as they grow, such as progression to secondary or tertiary education

• A change in the child's health status or the emergence of special needs

• A change in custody arrangements that affects each parent's direct costs

• Inflation and the rising cost of living, where the original order has become materially inadequate

Courts will grant a variation where they are satisfied that the change in circumstances is genuine, material, and not artificially created to avoid obligations.

7. Enforcement of Maintenance Orders

Section 121: Enforcement Orders

Section 121 of the Children Act 2022 provides for the enforcement of maintenance orders. Where a parent fails or refuses to comply with a maintenance order, the other parent or the child's guardian may apply to the court for enforcement. The enforcement mechanisms available to the court include:

• Attachment of earnings orders, directing the defaulting parent's employer to deduct maintenance directly from salary

• Seizure and sale of the defaulting parent's property

•       Committal for contempt of court in cases of deliberate and persistent non-compliance

•       Such other orders as the court considers appropriate

Section 168: Inter-Country Reciprocity

Section 168 of the Children Act 2022 provides for inter-country reciprocity in the enforcement of maintenance orders. Where a maintenance order has been made in Kenya and the paying parent resides abroad, or where a foreign maintenance order needs to be enforced in Kenya, reciprocal enforcement arrangements may apply depending on the countries involved. This is addressed in greater detail in Article 6 of this series.

8. Maintenance and Foreign Nationals

The maintenance obligation under Section 110 applies to every parent whose child is habitually resident in Kenya, regardless of the parent's nationality, domicile, or place of residence. A foreign national parent living abroad is not exempt from Kenyan maintenance obligations in respect of a child in Kenya. Kenyan courts can make maintenance orders against absent foreign parents, and those orders may be enforceable in the parent's home jurisdiction under applicable bilateral or multilateral arrangements.

⚠️  For International Advocates: Foreign parents instructing you on matters involving children in Kenya should be clearly advised that the Kenyan maintenance obligation is non-negotiable, applies regardless of marital status or residence, and is enforceable across borders through Section 168 mechanisms. Advising a client that they can avoid Kenyan maintenance obligations by remaining outside Kenya is incorrect.

The converse also applies: where a Kenyan parent is seeking to enforce a maintenance obligation against a foreign parent living abroad, they should be advised to obtain a formal maintenance order from the Kenyan Children's Court, which will then be the basis for any cross-border enforcement application.

9. Record-Keeping and Evidence

Parents paying or receiving maintenance should maintain detailed, contemporaneous records. These records serve an important evidentiary function if a maintenance dispute comes before a court. Best practice includes:

• Banking all maintenance payments rather than paying cash, to create a verifiable payment trail

• Retaining receipts for school fees, medical bills, and other child-related expenses

• Keeping written records of agreed payment schedules and any variations

• Retaining written communications about maintenance arrangements

Where a paying parent claims to have made payments but has no documentary evidence, courts may be unsympathetic to that position. Where a receiving parent claims non-payment but the paying parent can demonstrate consistent bank transfers, the receiving parent's position is weakened.

Conclusion

Child maintenance in Kenya is a legal obligation, not a discretionary contribution. Both parents are jointly and independently responsible for meeting their child's financial needs, regardless of who has custody, who initiated the separation, or what country either parent lives in. The Children Act 2022 provides courts with robust powers to assess, order, vary, and enforce maintenance, and the case law confirms that courts will use those powers with the child's welfare firmly in view.

For parents navigating maintenance, the most effective approach is to agree amounts that genuinely reflect the child's needs and both parents' capacities, formalise the agreement through a court-adopted PRA or a standalone maintenance order, and treat compliance as a non-negotiable obligation to the child rather than an ongoing source of conflict.

Key Legal References

Constitution of Kenya, 2010, Article 53(2)

Children Act, No. 29 of 2022, Sections 2, 8, 31, 110, 111, 112, 113, 114, 119, 120, 121, 168

JMR v RNM [2022] eKLR (High Court of Kenya, per Lady Justice M. Odero)

Children's Appeal Case 58 of 2023 (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