2. CUSTODY(S 81 CA)
Means having possession of the child with all the rights & duties
that accrue therefrom;
Types of custody
i) legal custody …; This is as much of the parental rights and
duties in relation to possession of a child as are conferred upon a
person by a court order. Legal custody does is to confer upon a
person the right to make major decision about the child’s health,
education and welfare. All these duties and rights are given
under legal custody. If person has legal custody but the child is
not in their possession (temporarily) they are considered to still
have legal custody;
ii)actual custody .This is the actual possession of a child, whether
or not that possession is shared with one or more persons.
A person with actual possession of child but no legal custody also
has same duties as those with legal custody
3. A
Actual custody can be Joint Custody – Joint physical custody because the
Act states that the actual physical custody of a child can be shared with
one or more persons. Also implied in that section is sole custody because
it is quite possible under the Act for one person to have both the legal and
actual custody of a child.
iii) Care & control-
means actual possession of a child, without custody of the child.
Where a person lacks legal custody of a child,but has care and control of
the child, he shall be under a duty to safeguard the interests and welfare
of that child
Where a person has actual custody of the child but no legal custody ,
they are deemed to have care and charge of the child and shall be under
a duty to take all reasonable steps to safeguard the interests and welfare
of that child. E.g. school, health care, food etc
4. In addition to custody the court can make certain orders
under the Act
ACCESS ORDERS
RESIDENT ORDERS Section 114
CARE ORDERS
i)Access Order requires a person with whom a child is
residing to allow the child to visit or to stay periodically
with a person named in the order or to allow such person
to have some other contact with the child. Also referred to
as visitation rights in other jurisdictions. One proviso in
the Act is that an access order shall not be made in relation
5. to a child in respect of whom there is already a care order in
place.
ii)Care orders are given under Section 132 .The order entrusts
the care and possession of a child to a person who is not the
parent, guardian or custodian of the child .It can be to an
institution which is appointed by the court. Usually for the
protection of the child especially children in need of care and
protection e.g. Those exposed to domestic violence, female
genital mutilation etc.
Iii)Residence orders are given to a person and shall require the
child to reside with that person and also provide for
arrangements to be made to facilitate the residence of the child
with that person. Such an order will impose certain conditions
and define the duration of residence.
6. Custody Order
Can be applied for by:
Parents
Guardian
Person who applies with consent of the parent or
guardian & has had actual custody of the child for 3
continuous months before the filing of the
application.
Any person who can show cause or convince court that
they are interested in the child’s welfare
7. Factors in awarding custody
the best interests of the child are paramount
wishes of the parents or guardian of the child;if no parents;
the ascertainable wishes of the relatives of the child;or
the ascertainable wishes of any foster parent, or any person
who has had actual custody of the child and under whom
the child has stayed with in the last three years prior to
the application;
the ascertainable wishes of the child; (age is a factor here)
whether the child has suffered any harm or is likely to
suffer any harm if the order is not made;
8. Factors in awarding custody contnd
the customs of the community to which the child
belongs;
the religious persuasion of the child;
whether a care order, or a supervision order, or a
personal protection order, or an exclusion order has
been made in relation to the child and whether those
orders remain in force;
the siblings of the child and other children of the
home, if any; e,g court may not want to separate the
siblings; are they hostile or friendly ?etc
9. Factors in awarding custody contnd
Conduct of parent who is cause of the divorce
See AOG v SAJ & Another [2011] eKLR
Where a custody order is made giving custody of a child to
one party to a marriage or to one guardian where they are
joint, or to one parent where unmarried, the court may
order that the person not awarded custody shall still have
all or any rights and duties in relation to a child, other than
the right of possession, jointly with the person who is given
custody of the child.
10. In Boyani Vs Mwaghoti
The applicant filed a petition for divorce together with a
chamber summons seeking for the custody of two children
of the marriage to the respondent. AM aged 7years and DW
aged 2½ years. Section 83(1) CA provides for the matters
that should be considered when granting custody. Both
parents were financially comfortable and all factors stated
in the section aforementioned were met. This being the case,
the then Otieno Onyango J. considered the age of the
children in order to determine custody. It was held that the
two children of the marriage were still within the ages that
dictated that they live with their mother unless she is found
to be hopelessly unable to take care of them.
11. Where during a judicial separation or a divorce, the court
finds the parent by reason of whose misconduct the
separation/divorce is made to be unfit to have the legal
custody of the child/ children of the marriage, the parent
declared unfit shall not be entitled to legal custody of the
child upon the death of the other spouse except with the
leave of the court.
A child cannot be removed from the custody of a person
who has lived with them for 3 years whether continuously
or not against the custodian’s will unless it is by leave of
court.
If one removes a child without court’s leave , its an offence
punishable by imprisonment not exceeding three
months(3) or a fine not exceeding 10,000/= or to both
12. if the police officer acting in pursuance of the search
warrant finds the child, he shall return the child
to the person with lawful custody.
Where a court makes a custody order it shall in
addition, give directions regarding rights of access to
the child, and maintenance of the child as the court
may deem fit.
Custody order lasts until the child is 18 yrs old then
ceases automatically.
13. Revocation of Custody order
Usually made on application by one of the parties
Court should determine the new custodian of child
before revoking the previous Custody order.
A person whose application for revocation has been
rejected before should not reapply unless:
there’s a change in circumstances or other good reason
for the court to entertain the application ;
Where the court in the previous rejection of app,
exempted it from the application of this section
14. Revocation of custody contnd
Application of revocation can be made by a custodian in
relation to access orders and maintenance .
Application can also be made by person who has an order
of access or who contributes to maintenance.
Application affecting custody does not affect an access or
maintenance order unless court states otherwise.
Custody order/access orders/maintenance of a child orders,
cease having effect when child attains 18 years.
Upon application to court, the court can extend a custody,
access or maintenance order beyond the child’s 18th
birthday, for such period as it shall deem fit.(e’g if still in
school, needs healthcare, mentally unfit etc).
15. Interim custody orders
court shall have power to make interim custody orders
and can review, suspend or vary such orders.
An interim custody order shall not exceed twelve
months(1 year).
16. MAINTENANCE OF CHILDREN
This is the financial responsibility in relation to
upbringing of a child; towards education, food, shelter
medical care etc
Usually made by the court at the same time as the
custody order.
17. Presumptions on maintenance
where the parents of a child were married to each other at
the time of the birth of the child and are both alive, they
share joint responsibility to maintain the child.
where two or more guardians of the child have been
appointed, all guardians have joint maintenance
responsibility with/without conjunction with parents
where two or more custodians have been appointed in
respect of a child- they have joint responsibility to maintain
the child.
Where there’s a residence order for 2 and above persons
,joint responsibility is for all sharing residence order.
18. Presumptions on maintenance
Article 53(1)(e), the Constitution provides that both the mother
and father of a child have equal responsibility to a child whether
or not they were married to each other.
Sec 24(3) CA Where a 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—
(a) the mother shall have parental responsibility at the first
instance;
(b) the father shall subsequently acquire parental responsibility
for the child in accordance with the provisions of section 25.
Sec 24(3) was declared as being contrary to the Constitution art
53 which requires equal parental responsibility whether parents
married or not . SEE ZAK &ANO VS AG & ANO.
19. ART CA25. (1) CA Where a
child’s father and mother were unmarried at the ti
me of his birth—
(a) the court may, on application of the father, order
that he shall have parental responsibility for the child;
or
(b) the father and mother may by agreement (“a
parental responsibility agreement”) provide for the
father to have parental responsibility for the child.
20. 25(2) CA Where a child’s father and mother were not married to
each other at the time of his birth but have subsequent to such
birth cohabited for a period or periods which amount to not less
than twelve months, or where the father has acknowledged
paternity of the child or has maintained the child, he shall have
acquired parental responsibility for the child, notwithstanding
that a parental responsibility agreement has not been made by
the mother and father of the child.
Sec 90(e) CA where the mother and father of a child were not
married to each other at the time of birth of the child and have
not subsequently married, but the father of the child has
acquired parental responsibility for the child, it shall be the joint
responsibility of the mother and father of the child to maintain
that child.
21. The sections imply that unless a father has voluntarily
accepted parental responsibility, the responsibility
remains with the mother where the couple were
unmarried at the time the child was born.
In ZAK 7 ANO VS THE AG & ANO. J. Mumbi Ngugi
held that section 23(4) and 25, and sec 90(a) and (e) of
the Children Act are unconstitutional, null and void
for breach of Articles 27(1), (2) and (4), and Article
53(1)1(e) of the Constitution.
The AG conceded that they were unconstitutional
22. The Children’s Bill 2017 is to put sec 24 in conformity
with Constitution. Section 27(3)a states
‘Where a child’s father and mother were not married
to each other at the time of the child’s birth, and have
not subsequently gotten married to each other— both
the mother and father shall have parental
responsibility at the first instance;
This is repeated in sec 104(e) of the Bill which requires
maintenance by both parents if they were not married.
23. Maintenance Order
Applied for by:
• Parent, guardian or Person with custody of the child
can make application.
-Court can also make orders of maintenance while
making, varying, or discharging a residence,
guardianship or custody order, even though no
application has been made by any person.
24. A person who has reached 18 years may, with the
leave of the court, apply to the court for a maintenance order
to be made in his favour in the following circumstances;
The person is or will be involved in education and training
which will extend beyond the person’s 18th birthday; or
• the person is disabled and requires specialised care which
will extend beyond the person’s 18th birthday; or
the person is suffering from an illness or ailment and will
require medical care which will extend beyond the 18th
birthday OR
25. other special circumstances exist which would warrant
the making of the order. SEE WAMBUA VS WAMBUA
The court can make a maintenance order, whether or not
proceedings for nullity, judicial separation, divorce or any
other matrimonial proceedings have been filed by the
parent of a child or not.
Once proceedings for the maintenance of a child have been
commenced under the CA or any other Act, no subsequent or
other proceedings with respect to the maintenance of that
child may be commenced under any other Act without the
leave of the court.
26. Factors considered in granting maintenance
orders
The income or earning capacity, property and other
financial resources which the parties or any other person in
whose favour the court proposes to make an order, have or
are likely to have in the foreseeable future;
the financial needs, obligations, or responsibilities which
each party has or is likely to have in the foreseeable future
;eg if they have other family they take care of.
the financial needs of the child and the child’s current
circumstances;
the income or earning capacity, if any, property and other
financial resources of the child;(may have inherited or has
27. Factors contnd
business)
any physical or mental disabilities, illness or medical
condition of the
How the child is being or is expected to be educated
or trained;
the circumstances of any of the child’s siblings;
the customs, practices and religion of the parties and the child;
If respondent has assumed responsibility for the maintenance of
the child and if so, the extent of responsibility, the basis of
assuming that responsibility , and the period during which he
has met that responsibility;
28. Factors court considers in
maintenance
Where it is a step parent ,court considers whether the
respondent assumed responsibility for the
maintenance of the child knowing the child was not
his child,
where parents were unmarried, court considers
whether the respondent assumed responsibility
knowing that he was not legally married to the mother
of the child;
the liability of any other person to maintain the child;
the liability of that person to maintain other children.
29. Court may order maintenance money to be paid through either
periodical payments; e.g monthly, quarterly etc
OR
lump sum payment as the court shall deem fit’
A person who gets order can receive money on behalf of the child
until 18th birthday of the child when maintenance order
ceases unless extended by court.
Court can however change the person to receive money on behalf
of the child where;
is not a fit or proper person to receive any maintenance
monies.
has left the jurisdiction of the court for an indefinite period,
is dead
30. is incapacitated or has become of unsound mind
has been imprisoned
has been declared bankrupt;
has misappropriated, misapplied or mismanaged any
maintenance monies paid to him for the benefit of the
child.
In this case,the court can appoint another person to
receive the monies instead or order that the money or
property be deposited in trust for the child.
31. The court can impose conditions it deems fit to an
maintenance order.
Court can also vary, modify or discharge any order
made with respect to the making of any financial
provision by ;e.g if one looses job or gets job etc
32. Consequences of defaulting on
maintenance order
Court can order that any arrears in respect of any
maintenance monies be paid immediately, or by instalments
or within such other period specified by the court;
issue a warrant for distress on the respondent’s property
Order the attachment of the respondent’s earnings
including any pension
The court shall not, unless special circumstances exist,
make an order for the attachment of the respondent’s
earnings which does not exceed more than 45% of the
respondent’s annual income in any period of twelve
months(1 year);
33. Consequences of defaulting on
maintenance order
I)Court can commit the defaulter to civil jail for a period of not
less than five(5) days nor more than four weeks(1 Month):
The court can only issue a warrant for imprisonment if
satisfied that—
(a) the respondent has persistently and wilfully refused or
neglected to
make payment of all or any part of the maintenance monies or a
contribution order without reasonable cause;
(b) the respondent is present at the hearing;
(c) an order for attachment of earning would not be appropriate;
(d) is satisfied that such default was due to the respondent’s wilful
refusal or culpable neglect.
34. Other cases on custody
See John Onyando vs Ruth Moraa [2005] eKLR
(Difference between legal custody & actual custody;
custody to person outside Kenya)
Mehrunnissa vs Parvez [Civil Appeal No. 11 of 1979)
(conflict between Mohammedan law & Children law;
agreement on custody; custody of child of tender
years; jurisdiction of court)
S.O v L.A.M [2009] eKLR-(Custody of child of tender
yrs, no of witnesses to prove custody issues, mother
not having job, Teso custom vs Children Act
35. Other cases on maintenance
MW vs KC [2005] eKLR-right of child to be maintained by father;
where father denies paternity; jurisdiction of court to order DNA test;
grounds)
Diana Ndele Wambua Vs Dr Paul Makau Wambua. The applicant in
the matter was a 22 year old lady. She filed an application seeking leave
to commence proceedings for maintenance against her father under the
Children Act, 2001. the material facts were that the applicant was a
University of Nairobi Student where she pursued a parallel degree
programme in medicine at the time of filing the application. The parents
to the applicant had separated sometime in 1995 and custody of the
children, including the applicant, had been given to the mother. The
Respondent was ordered to pay school fees for the children, which he did
until the applicant reached form four. Meanwhile, the applicant joined
university but this was at the time she had reached the age of majority
and, therefore, the order for maintenance had lapsed. The Respondent
was at all material times a member of staff at the University
36. at the University of Nairobi where he was entitled to the Staff Education Support
Fund (SESF) for his children which would cover up to 50%of the fees for his
children. The applicant has sought her father’s completion of her forms for her
to benefit under the facility but the father had declined. She, therefore, invoked
the legal regime under the Children Act. She first commenced the matter in the
Children Court but the court advised that owing to the matters relating to
monetary jurisdiction, she would rather commence the matter in the High
Court. The application was to turn on section 28 of the Act that mandated the
court to extend the age limit to which parental responsibility attached. The
Respondent opposed the application on the ground that he application was not
brought within the ambit of the rights of the child under sections 4 to 19 of the
Children Act. The Respondent further contended that the word child meant a
person below the age of 18 years and, therefore, the responsibility of raising the
age for parental responsibility lay with the Children Court. The respondent
further contended that he had faithfully performed his responsibility and that
the only special circumstance that would entitle the applicant to the orders
sought would have been if the applicant had attained the age of 18 years before
completing her secondary education. The respondent urged the court not to
compel him to perform a moral and social responsibility.
37. the court noted that the applicant was a daughter of a medical
doctor and a professor and the university. That although the
mother’s profession was not disclosed, it was on record that she
was a civil servant working for an international organization, the
UN. The court satisfied itself that the parents to the applicant
belonged to an educated elite, they had set very high standards for
their children and education, in their circumstances, could be said
to include higher education. The court proceeded to grant t
applicant leave to file an application for an order of maintenance
against the Respondent with a caveat that the maintenance ought
not go beyond what was provided for under SESF and only as long
as the Respondent remained an employee of the University of
Nairobi.
The case confirmed that in an appropriate case, the court would
extend maintenance beyond 18 years.
38. Maintenance case/parental
responsibility
Rose Moraa (Suing thro’ Next Friend) Josephine Kavinda & ANother Vs
Attorney General. NRB Hcc CIVIL CASE NO. 1351 2002 (O.S.)
i)The question was whether section 24(3) of the Children Act either of
itself or in its effect was discriminatory to the extent that it expressly or
constructively prescribes that a father of a child who is neither married to
nor has subsequently married the child’s mother bears no parental
responsibility in relation to that child"
ii) Whether Section 24(3) of the Children Act was inconsistent with
section 82(2) of the Constitution of Kenya concerning a child whose
parents were not married to each other at the time of the child’s birth
to the extent that it permits a father of such child to discharge parental
responsibility to the child
If this went against the CRc.
-
39. Rose’s mother was unmarried to her father and she sought
to have the father take parental responsibility including
maintaenace of the child.
This was under the old Constitution which did not provide
for equal responsibility of both parents for a child whether
married or unmarried.
The court ruled that;
-where the words of the constitution or statute are
unambiguous the courts have no choice but to enforce the
local law irrespective of any conflict with international
agreements. Where not domesticated, the court held,
Treaties may be taken into account in seeking to interpret
ambiguous provisions of municipal law.
40. Court found that Section 23(4) and by extension 25 do not
offend the principle of equality and non-discrimination
either by themselves or in their effect. We further hold that
the principle of equality and non-discrimination does not
mean that all distinctions between people are illegal.
Distinctions are legitimate and hence lawful provided they
satisfy the following:
1. pursue a legitimate aim such as affirmative action to deal
with factual inequalities; and
2. are reasonable in the light of their legitimate aim
The applicants case was dismissed .
41. MAINTENANCE OF SPOUSE
77. (1) The court may order a person to pay maintenance to a
spouse or a former spouse—
(a)if the person has refused or neglected to provide for the
spouse or former spouse as required ;
(b)if the person has deserted the other spouse or former spouse,
for as long as the desertion continues;
(c)during the course of any matrimonial proceedings;
(d)when granting or after granting a decree of separation or
divorce; or
(e) if, after making a decree of presumption of death,
the spouse or former is found to be alive.
42. When does maintenance lapse
S78 Marriage Act
if the maintenance was unsecured, on the death of the
spouse; .
if the maintenance was secured, on the death of the
spouse in whose favour it was made; or
where the person being maintained is subsequently
able to support himself or herself.
Upon the re-marriage of the beneficiary of the order.
(s79)
43. The court may revoke or vary a subsisting maintenance order
where if it is satisfied that the order was based or obtained as the
result of any misrepresentation or mistake of fact .
Also revoked where there has been a material change of
circumstances since the order was made e.g one spouse being
maintained is subsequently financially able to support
themselves.
The case has to be filed within 3 years from the time the
money becomes payable.(Limitation period)
maintenance arrears which remained unpaid before the death of
the person entitled shall be a civil debt recoverable by the legal
personal representative of that person.
44. GUARDIANSHIP
“guardian” means a person
appointed by will or deed by a parent of the child or by
an order of the court to
assume parental responsibility for the child upon the
death of the parent of the child
either alone or in conjunction with the surviving
parent of the child or the father of a child born out of
wedlock who has acquired parental responsibility for
the child
45. guardian
Guardian may be appointed in respect of any child
who is resident in Kenya whether child born in Kenya
or not or is a Kenyan citizen.(child must be resident in
Kenya)
The guardian appointed need not be a Kenyan
citizen or resident in Kenya.
A guardian may be appointed in respect of the person
or the estate of the child or both.
46. If appointed only in respect of the estate of the child, he
does not need to have actual custody of the child but shall have—
the power and responsibility to administer the estate of the child and
to receive and recover and invest the property of the child
in his own name for the benefit of the child;
the duty to take all reasonable steps to safeguard the estate of the child
from loss or damage;
the duty to produce and avail accounts in respect of the child’s estate
to the parent or custodian of the child or to the court or to other persons
the court may direct on every anniversary of the date of his appointment;
to produce any account or inventory in respect of the child’s estate
when required to do so by the court.
47. Rights of surviving parent as to guardianship
• If the father of a child dies , the mother if surviving shall be
the guardian of the child, and if no guardian has been
appointed by the father or the guardian appointed by the
father is dead or refuses to act, the court may appoint a
guardian to act jointly with the mother.
On the death of the mother of a child, the father, if
surviving, shall be the guardian of the child either alone or
jointly with any guardian appointed by the mother or if the
guardian appointed by the mother is dead or refuses to act,
the court may appoint a guardian to act jointly with the
father.
48. Guardianship
Where a parent appoints a guardian by Will or Deed it is only valid
if ;
in the case of an appointment by deed,
the deed is dated and is signed by the person making the
appointment
in the presence of two witnesses;
in the case of an appointment made by a written will,
it should be made executed and attested in accordance with the
provisions of section 11 of the Law of Succession Act ,and if by
oral Will in the course of an oral will if it is made in accordance
with sec 9 of LSA .
49. Claim to guardianship can be raised by:
Surviving parent
If two joint guardians; one of them
Relative of child
Interested party
50. Revocation of guardianship
appointment
An appointment as guardian is revoked;
if the person who made the appointment revokes it by a
dated instrument which is signed—
by him; or
at his direction, in his presence
in the presence of two witnesses who each attest to
the signature.
if the will or codicil appointing a guardian is revoked,
the appointment stands revoked too.
51. Ending guardianship through court
Order of the court ending guardianship on the application of—
any parent or guardian; or
the child concerned, with the leave of the court;
a relative of the child,
The director
by the court itself in any proceedings if the court considers that
it should be brought to an end even though no application has
been made.
Where a court revokes an appointment of guardian the court shall
before doing so, ascertain who would have guardianship or legal
custody of the child if, on the revocation of the appointment of the
guardian, no further order was made.
52. Guardianship exists only up to 18th birthday of child
Can be extended by the court through application of
child, parent, relative, guardians etc
Court may extend because of;
the child suffers from a mental or physical disability or
from an illness that will render him incapable of
maintaining himself, or of managing his own affairs and his
property without the assistance of a guardian after his
eighteenth birthday
or other exceptional circumstances with regard to the
child as the court may deem proper
53. Any guardian of the estate of a child who—
wilfully or recklessly neglects to receive and safeguard any
asset forming part of the estate, misapplies any such asset
or subjects any such asset to loss, waste or damage; or
wilfully fails to produce to the court, or the parent or
guardian of the child any account or inventory required or
wilfully or recklessly produces any such inventory or
account which is false in any material particular,
Is guilty of an offence and shall be liable to a fine not
exceeding 50,000/= or to imprisonment for a term not
exceeding one year or to both .
