27/08/2026
There is a persistent misconception in child custody matters that children, particularly young children, automatically “belong” with the mother.
That is not the law.
Article 53 of the Constitution protects the child’s right to parental care and protection, including the equal responsibility of the mother and father.
The Children Act, 2022 goes further. It provides that neither the father nor the mother has a superior right or claim over the other in exercising parental responsibility.
The High Court recently reaffirmed this position in RM v BMN [2025] KEHC 18527 (KLR).
The Court recognised that a mother may, depending on the circumstances, retain actual physical custody of the children while the father nevertheless has an equal role in legal custody and important decisions concerning the children.
In that case, the Court ordered joint legal custody and granted the father substantial, liberal and unsupervised access.
The important distinction is this:
Equal parental responsibility does not mean that every parent will automatically be awarded physical custody.
The decisive consideration remains the best interests of the child.
What the law does reject is the assumption that a father is somehow a secondary parent merely because he is the father.
So, if you are a father who has been denied access to your child, excluded from important decisions concerning your child, or made to believe that you have no meaningful custody rights, the law may say otherwise.
And if you are a mother facing a custody dispute, the same principle applies: custody is determined according to the law and the best interests of the child—not simply by assumptions about whether a mother or father should have custody.
Know your rights. Know your child's rights.
RM v BMN [2025] KEHC 18527 (KLR); Article 53, Constitution of Kenya; Children Act, 2022.
For legal clarification on custody, access and parental responsibility, seek appropriate legal advice based on your circumstances.
