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

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 parents separate, one of the first questions asked is: who has rights over the child? Under Kenyan law, the answer is both parents, equally, and the question itself reflects a common misconception. Parental responsibility in Kenya is not awarded by a court on separation. It exists by operation of law from the moment a child is born, and it belongs to both parents in equal measure.

This article, the second in our six-part Kenyan Family Law Series, explains what parental responsibility means under the Children Act 2022, who holds it, what it requires, and what happens when it is exercised in conflict. It is the legal foundation upon which custody, co-parenting, and maintenance obligations are built.

Series Note: This is Article 2 of 6. Article 1 covered the Best Interests of the Child. Subsequent articles cover Custody, Co-Parenting and PRAs, Maintenance, and International Considerations.

1. What Is Parental Responsibility?

The Children Act 2022 does not provide a single compressed definition of 'parental responsibility' in Section 2, but its scope is set out in Section 31, which details the duties, rights, powers, responsibilities, and authority that a parent holds in relation to a child and the child's property. In practical terms, parental responsibility includes:

• The duty to maintain the child, providing food, shelter, clothing, basic education, and healthcare

• The duty to protect the child from abuse, neglect, harmful cultural practices, and exploitation

• The right and duty to make decisions about the child's education, including school choice

• The right and duty to make decisions about the child's healthcare and medical treatment

• The right and duty to make decisions about the child's religious upbringing

• The duty to register the child's birth and secure identity documents

• The duty to ensure appropriate care arrangements when the parent is absent

Parental responsibility is, in other words, the totality of what it means to be a legal parent in Kenya. It is not a collection of optional privileges; it is a set of enforceable obligations that attach to parenthood itself.

2. Who Has Parental Responsibility?

The Constitutional and Statutory Position

Article 53(1)(e) of the Constitution of Kenya, 2010 establishes the foundational rule: every child has the right to parental care and protection, which includes the equal responsibility of the mother and father to provide for the child, whether or not they are married to each other.

Section 31 of the Children Act 2022 gives statutory effect to this right. It provides that both the mother and father of a child share parental responsibility equally. Section 32 then states explicitly that neither the father nor the mother has a superior right or claim against the other in respect of parental responsibility.

Key Point: Parental responsibility is not contingent on marriage. A father who has never been married to the mother of his child holds the same parental rights and responsibilities as a father who was married, separated, or divorced.

This represents a significant evolution from older common law approaches that treated a father's rights as contingent on the legitimacy of the child's birth. The Children Act 2022 abolishes that distinction entirely.

Does Separation Extinguish Parental Responsibility?

No. This is one of the most important points for parents to understand. Separation, divorce, or the dissolution of a relationship does not reduce, suspend, or extinguish either parent's parental responsibility. The Supreme Court of Kenya has affirmed that parental responsibility is ongoing and cannot be extinguished by the breakdown of the parents' relationship.

A parent who does not live with the child retains full parental responsibility. They retain the right to participate in major decisions about the child's education, healthcare, and welfare. They retain the right to access information about the child. And they retain the obligation to contribute to the child's maintenance. These rights and duties persist unless a court has specifically varied or removed them.

Duration of Parental Responsibility

Parental responsibility ordinarily continues until the child reaches the age of 18 years. Section 35 of the Children Act 2022 provides that in exceptional circumstances, such as where a child has a severe disability or developmental disorder that renders them unable to care for themselves, the court may extend parental responsibility beyond the child's eighteenth birthday.

3. Equal Parental Responsibility: What It Means in Practice

Section 32: No Superior Right

Section 32(1) of the Children Act 2022 states that neither the father nor the mother has a superior right or claim against the other in respect of the parental responsibility for the child. This provision has had significant practical consequences for family law in Kenya.

It means that a mother cannot unilaterally exclude a father from decisions about a child's schooling. A father cannot unilaterally relocate a child across the country or across borders without the mother's consent or a court order. Neither parent can remove the child from the other's access without lawful authority. And neither parent can claim a higher or more natural entitlement to the child based on gender or marital status.

Joint Decision-Making

Because parental responsibility is shared equally, major decisions about a child's life are, in principle, joint decisions. Where parents live together, this happens naturally. When they separate, it requires active cooperation, communication, and in many cases, formalisation through a Parental Responsibility Agreement (discussed in Article 4 of this series).

'Major decisions' in this context typically include:

• Choice of school or educational institution

• Medical procedures requiring consent, including elective treatments

• Religious upbringing and participation

• International travel or relocation

• Changes to the child's name

Day-to-day care decisions, such as what the child eats, when they sleep, and how they spend their time during a particular parent's care period, are generally within that parent's discretion. The joint decision-making requirement applies to significant, long-term choices about the child's life.

When Parents Disagree

What happens when two parents, both holding equal parental responsibility, cannot agree on a major decision? The Children Act 2022 provides a clear answer: the first resort should be negotiation, mediation, or agreement, including through a formal Parental Responsibility Agreement. The Children's Office can assist parents in mediating disputes without court involvement.

Where agreement is genuinely impossible, either parent may apply to the Children's Court for a specific issue order or a court direction. The court will then resolve the dispute by applying, as always, the best interests of the child standard.

Court should be the first port of call only where the situation is urgent: where a child is at immediate risk, where one parent is about to take an irreversible unilateral action (such as removing the child from Kenya), or where one parent is actively preventing the other from exercising their parental rights.

4. Parental Responsibility Agreements

Section 33 of the Children Act 2022 formally recognises Parental Responsibility Agreements (PRAs) as the primary mechanism through which separating parents document and formalise the exercise of their shared responsibilities. A PRA sets out how the parents will divide the practical tasks of parenting, how decisions will be made, and how disagreements will be resolved.

A PRA does not create parental responsibility; both parents already hold it. What it does is provide a clear, enforceable framework for how that responsibility is exercised day to day. Once filed and adopted as a court order, a PRA is legally binding on both parents.

Parental Responsibility Agreements are covered in depth in Article 4 of this series.

5. Transmission and Variation of Parental Responsibility

Transmission Under Section 34

Section 34 of the Children Act 2022 provides for the transmission of parental responsibility in certain circumstances, including where a parent remarries. Where a parent's spouse (by remarriage) assumes a parenting role in respect of the child, the Act recognises that they may exercise parental responsibility, regardless of whether they have formally adopted the child.

This provision has practical significance for blended families and requires careful management in Parental Responsibility Agreements to ensure that the parental rights of the other biological parent are not inadvertently displaced or undermined.

When Parental Responsibility Can Be Varied or Removed

The court retains jurisdiction to vary, restrict, or in exceptional cases remove a parent's exercise of parental responsibility. This may occur where:

• A parent is found to be a risk to the child's safety or welfare

• A parent is of unsound mind and unable to discharge parental responsibilities

• A parent has abandoned the child for a period exceeding six months (see the definition of 'abandoned' in Section 2 of the Act)

• The court determines, on all the evidence, that variation is in the child's best interests

Removal of parental responsibility is an exceptional measure, not a routine response to parental disagreement or conflict. Courts are reluctant to sever a parent's legal relationship with their child absent compelling evidence of risk or unfitness.

What Is a 'Fit Person'?

Section 2 of the Children Act 2022 defines a 'fit person' as a person in respect of whom it is shown to the satisfaction of the Court to be of high moral character and integrity, and who is capable of exercising proper care and guardianship of a child. This definition is relevant when a court is considering whether to award custody to a parent, guardian, or other person, and when assessing whether parental responsibility should be varied.

6. Parental Responsibility and Foreign Nationals

The Children Act 2022 applies to every child in Kenya, regardless of the nationality or domicile of their parents. A foreign national parent whose child is habitually resident in Kenya holds parental responsibility under Kenyan law and is subject to its obligations, including the obligation to maintain the child under Section 110 (discussed in Article 5 of this series).

Equally, a foreign national parent cannot be deprived of their parental responsibility under Kenyan law simply because they live abroad. Kenyan courts will recognise and protect the rights of a non-resident foreign parent, provided that parent has not been excluded from those rights by court order.

For International Advocates: A client who is a foreign national with a child in Kenya should be advised that Kenyan law does not create lesser parental rights for non-resident or foreign parents. However, practical exercise of those rights may require registration of a Parental Responsibility Agreement or a court order in Kenya to ensure enforceability.

Conclusion

Parental responsibility in Kenya is equal, non-negotiable, and enduring. It belongs to both parents from the child's birth. It survives separation, divorce, and distance. It cannot be contracted away privately, and it can only be varied or removed by a court applying the best interests standard.

Understanding this foundation is essential for every discussion that follows in this series. Custody arrangements, co-parenting agreements, and maintenance obligations are all built on top of the shared parental responsibility that both parents hold by law. The framework is not designed to divide parents; it is designed to unite them in their obligations to their child.

Key Legal References

• Constitution of Kenya, 2010, Article 53(1)(e)

• Children Act, No. 29 of 2022, Sections 2, 31, 32, 33, 34, 35

• Mutheu Agatha Khimulu v Raheem Mehdi Aziz Azad and 4 others, Petition No. E003 of 2022 (Supreme Court of Kenya)

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

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