The core values that we hold as human beings are often rarely discarded. This entails values which were inculcated into us at a tender age and which more often than not have formed and played an instrumental role in guiding the way we rationalize things and our general cognitive thinking about the occurrences of our day to day lives.
Morality entails the determination of what is right or wrong. What is right or wrong varies from one individual to another hence there exists certain universal standards which are codified into laws and statutes and which cannot be derogated from. This curtails state of nature where there is lawlessness as what is right or wrong could alternatively trickle down to one’s personal preference and ideas and perceptions inherent in him if we existed in a society devoid of any laws thus unfettered by any restraints.
Kenya is a very diverse country with varying and distinct tribes. The debate pertaining to the balance between the various tribes has become finely ingrained in recent years. All the tribes possess their own cultures which are very close and proximate to them. The balance between upholding the rights of the rights of the child as provided for under the constitution, other complementary statutes and the cultural beliefs, ethos and values spawning from the various tribes is very delicate.
Often, the adherence to the law could be premised on several factors. Some communities are not only oblivious of the law, but they also do not know or have ample information pertaining to the enacted laws in the country. This could stem from where the communities are situate or from ignorance and the absolute disregard of the law. Another factor could be the firm belief that the cultural beliefs inherent in a certain community cannot be ousted by any other law.
Our constitution, 2010 recognizes the values and the cultures emanating from the various tribes or communities in Kenya. However, there are checks and balances and such cultural laws ought not to be arbitrary and repugnant to the sense of morality and justice. Article 2 (4) of the Constitution stipulates that any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any actor omission in contravention of this Constitution is invalid.
I am a firm proponent of inclusivity but most people who are often misled tend to act in absolute disregard of the law. In the Daily Nation newspaper, dated the 19th of February 2015, an article was published highlighting that a mother was massively distressed in Mombasa due to the fact that the security of her child was in jeopardy. This was predicated on the fact that the child was born with various deformities which based on the tribe in question implied that the child was an outcast and thus a curse and a sign of bad omen.
It was therefore very disconcerting to realize that even with the advent of the new Constitution, such old tendencies still recur as people still find it plausible to act unencumbered by the law hence following their often misguided cultural beliefs.
It would be my hope that some of this instances are transient but unfortunately, there are many cases which are have a striking semblance to the Mombasa case but they are barely documented or published hence alien to the general public.
There can only be change if there is heightened civic education and if the holders of such perceptions can be enlightened further. There is no any curse placed on a disabled child or a child with any manifest deformities. The children with such deformities are actually very gifted depicting various precocious tendencies from a very young age. Their proclivities which hail from their gifts are therefore never shared with the world when there is discrimination based on the cultural beliefs which are whimsical. The children cannot therefore live and lead a normal life as expected hence they rarely perform their full repertoire as expected.
It is therefore imperative that there be changes. This should ensure that there is a fine balance between what is wrong or right in the society and that people comprehensively understand that the law will always override any other cultural beliefs if they are proven to be capricious. The substantive law exists hence the changes vital are procedural. These will entail various stakeholders ranging from the governmental to civil societies and any other private stakeholders. There should be more education so that the cultural idiosyncrasies are completely dispensed with. The police should also be more vigilant and there should also be more executive curbs to ensure that people who want to facilitate such acts and baseless discrimination are effectively deterred from doing so.


Section 81 (1) of the Children Act define custody with respect to a child to mean so much of the parental rights and duties as relate to the possession of the child. The custody order is often given by a court where the couple fails to agree on custody. Custody can be given to a parent of the child(ren), a guardian or any other person who applies for custody of the child but has actual custody for three months before making the application and has the permission of the parent or the guardian and any other person who can show a reasonable cause why custody should be bestowed upon him/her.
Matters of child(ren) custody can be complicated and when dealing with such cases, courts do focus on the best interest of the child. Parent may agree on custody of the children at the time of separation. If this is the case, it is important for the couple to ensure that their agreement is properly documented in a legally binding separation agreement. Parent can agree on joint custody, but there are times where parent may want sole custody of children, for example, where a parent has never been involved in a child’s life, is unable to parent, or has moved out of the country. If they fail to reach to an amicable solution, court will determine the suitable parent to give the custody.
In doing this, court has to interrogate the circumstances around the case so as to establish whether the child has suffered any harm or is likely to suffer any harm if the custody order is not made. Both parents have equal rights to apply to the court for a custody of their child(ren) but the court is guided by the following principles set under S. 83(1) of the Children Act (2006) among others which include; wishes of the child, wishes of the parents, guardians, foster parents or any other person who have custody of the child; cultural and religious background of the child, best interest of the child, parent-child relationship bond, parenting abilities of each individual, each parent mental, physical and emotional health, available support systems of each parent, etc.
Custody of Minors: children of tender years are kept under custody of their mothers unless there is a sufficient evidence to discredit the mother. The Subordinate Courts (Separation and Maintenance) Act Cap 153, enables a woman to seek custody for a child below 16 years. Article 53 (2) of the Constitution states that the welfare of the child is of paramount consideration in every matter and thus, court should consider which parent will be able to provide the best shelter, health, education and upbringing. In Karanu vs Karanu (1975) E.A 18, it was held that the first guiding principle provides that whenever the state, a court, a local authority or any person determines any question with respect to upbringing of the child, the child’s welfare shall be the paramount consideration and that is the position of the law.
In most cases court normally awards custody to the mother for she is considered best able to take care of very young children for they know their interests and needs. Where custody is bestowed on the mother, she is entitled to maintenance from the father until the child attains the age of majority.
Children Act Cap 141 of 20091
The Constitution of Kenya 2010
Karanu vs. Karanu (1975) E.A 18
Subordinate Courts (Separation and Maintenance) Act Cap 153


Earlier on before the promulgation of the Kenyan Constitution 2010, no right on support and maintenance of a child born out of wedlock accrued on the father where there was no legal relationship between the mother and the father. The only remedy that the mother had was in the customary law which provides for pregnancy compensation but the compensation is usually paid directly to the mother parents and does not necessarily benefits the child. The compensation is also determined by the elders who are gender biased and tend to favour the father of the child.
Previously in our laws, the mother was deemed to have parental responsibility over the child at first instance. Particularly section 24 (3) of the Children Act, 2001 provides that where the child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other, the mother shall have parental responsibility at the first instance. Under Section 25, the father only acquires parental responsibility for the child if he applies to the court for it, acquire it through an agreement with the mother, has accepted paternity or has maintained the child or lived with the child for 12 months. This shows that the father does not automatically acquire the responsibility towards the child. In many cases, such children are not maintained by their fathers because they fail to acknowledge them and in rare cases, fathers do sign the parental responsibility agreement.
This is so discriminative as compared to children who their parents are married and is contrary to the best interest principle towards any child. Under the Births and Deaths Registration Act, a child’s mother cannot enter the name of the father of the child in the birth certificate without the father’s consent. This has been the inequality for the children born out of wedlock.
The position of joint responsibility of both parents whether married to each other or not, is guided by Article 53 (e) of the Constitution which provide that every child has a right to parental care and protection which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.
This provision was upheld in a landmark case of Zak & Another vs. The Attorney General & Another (2013) KLR. In this case, the petitioner challenged the Constitutionalism of Section 24(3) of the Children Act and Section 25. She argued that these sections infringed Article 27(1) of the Constitution which states that every person is equal before the law and has a right to equal protection and equal benefit of the law. In line with that argument, Justice Mumbi Ngugi stated that it was unconstitutional for the Children Act placing the responsibility of the children born outside marriage only on the mother. In this regard, the provisions of section 90(a) and (e) of the Children Act were unconstitutional considered alongside the provisions of Section 24(3) which places the responsibility of the child on the mother at the first instance where the mother and the father are not married.
The judge then proceeded to find that in line with the provisions of Section 7 of Schedule 6 of the Constitution, the Children Act must be read as imposing parental responsibility on both of their biological parents, whereby they were married to each other or not at the time of the child’s birth. The court further found that the above mentioned provisions of the Children’s Act to be unconstitutional hence null and void.
This has been the best decision made in light to the children born out of wedlock. Article 2(4) of the Constitution states that; any law including customary law that is inconsistent with the Constitution is void to the extent of inconsistency and thus, such provisions hindering the best interest principle on any child to be achieved should be struck out.


With the introduction of free primary education in 2003, gross enrollment of children in schools rose to 103%. This was also seen in free secondary education program. This was so commendable as it complied with the principles of basic education as set in international instruments that Kenya is signatory to. This meant that all children could access basic education as of right.
Despite this, many Kenyans has opted to continue bearing the burden of paying school fees for their children by enrolling them in private schools which are on rise in Kenya at all levels. The reasons why many parent, if asked enroll their children in private schools has been that the quality of education is higher as compared to public schools and that teachers in private schools do pay much attention to their students as compared to students in public schools. This is evidenced by the percentage of children who leads in the national examination as students from private schools always carry the flag every year as compared to those in public schools.
However, despite their determination, the challenge has been the smooth transition of private school students from one level to a higher level. This is evidenced by recent complaints by parents pertaining to their children being that they scored high marks but they were enrolled in school with lower standard contrary to their children’s choice. Parents have termed this as discrimination against private schools in Kenya.
According to the Children Act (2001), the child interest is paramount and child needs and views should be considered. Children at private and public school are given the right of choice to choose the schools. This is commendable but during enrollment you will find that children from public schools are given first priority as compared to those in private schools. This is total discrimination and is contrary to Article 53 of the constitution conferring the right of education to every child. Article 27 condemns discrimination at all levels and calls for equality among all children despite their social status.
The Children Act Article 7(1) call upon the government and the parent to be responsible in ensuring that every child is entitled to education. Furthermore, Article 11(3) and (d) of African Charter on Rights and Welfare of the Child call upon the State Parties to take all appropriate measures with a view of achieving the full realization of the right to education and to make the higher education accessible to all on the basis of capacity and ability by every appropriate means.
Furthermore, the Basic Education Act (2013) sets out the principles on provision of basic education. Article 4(b &e) advocate for equitable access to basic education and equal access to education or institutions and protection of every child against discrimination within or by an education department or education institution on any ground whatsoever. Article 39(b) gives the government the mandate to ensure compulsory admission and attendance of children at school or an institution giving basic education.
As Article 27(6) of the Constitution gives the government the mandate to take measures including affirmative action and policies to redress any disadvantage suffered by groups or individuals, I will then call upon the government to come up with policies to redress this and ensure that children in private school are treated in the same level as children in public school inform one selection.