UNDERSTANDING THE BEST INTEREST OF THE CHILD PRINCIPLE

The best interests of the child are the guiding principle whenever decisions are made about a child’s welfare, care, or upbringing. This is firmly anchored in the Constitution of Kenya, 2010 under Article 53(2), which provides that “a child’s best interests are of paramount importance in every matter concerning the child.” The Children Act, 2022 also reinforces this standard, making it the foundation of family law in Kenya. In this blog, I’ll be sharing the case of MTKO v JMR (Civil Appeal E064 of 2023) [2025] KEHC 3681 (KLR) (Family) to show how the courts interpret this principle and ensure that the best interests of the child remain at the center of their decisions. 

FACTS OF THE CASE 

The Appellant, MTKO, is the minor's maternal grandmother, residing in the United States of America. The Respondent, JMR, is the minor's biological father, of Grenadian Nationality. The child's biological mother, who was the Appellant's daughter and the Respondent's wife, passed away in 2023. The child has two passports, one Kenyan and one Grenadian. After the first court decision, the father immediately took the child to Grenada, and they are now living there. 

LEGAL ISSUES 

The main question was: Who should have custody (care and control) of the child, and should the child be allowed to leave Kenya? In addition, a significant preliminary issue raised was the jurisdiction of the High Court to hear the appeal, given that the child had left Kenya.

Specifically, the Respondent (JMR) originally sought:

• Full legal and actual custody of his child.
• The grandmother to hand over the child's birth certificate and both passports.
• The grandmother stopped from taking the child away from him or out of Kenya.
• Any other appropriate relief.

The Appellant (MTKO) countered, seeking:

•  Dismissal of the Respondent's suit.
• Legal custody, care, and control of the child for herself, with reasonable access for the Respondent. 
• Permission to take the child to the USA.
• Further orders in the child's best interests.
• Costs of the suit.

On appeal, the Appellant specifically challenged the trial court's decision on several grounds, including its failure to consider her evidence, the deceased mother's wishes, the Children’s Officer’s Report, the best interests of the child regarding environmental change, and modalities of access after travel. The Respondent raised a preliminary objection claiming the High Court lacked jurisdiction because:

• The child, a Grenadian citizen, was no longer resident in Kenya, having left on July 31, 2023, and was settled in Grenada with the father.
•  The child’s Kenyan passport had been cancelled by court orders.
•  The Appellant herself was not a resident of Kenya and lived and worked in the USA. 
•  The suit was frivolous and an abuse of court process. 

PROCEDURAL HISTORY AT THE COURTS 

1. CHILDREN'S COURT 

The Respondent (JMR) initiated the suit against the Appellant (MTKO). The Appellant filed a defense and counterclaim. The matter proceeded to a full hearing and the Court issued the following orders: 

• JMR (the father) was granted Legal Custody, Care, and Control of the child
• MTKO (the grandmother) was ordered to hand over the child’s original birth certificate and both Kenyan and Grenadian passports to JMR. 
• JMR was granted leave to travel with the child to Grenada. 
• No orders were made as to costs 
• Each party was at liberty to apply 

2. THE HIGH COURT 

Dissatisfied with the Children's Court judgment, MTKO (the grandmother) filed an appeal through a Memorandum of Appeal dated August 2, 2023. She listed seven grounds of appeal, primarily arguing that the trial magistrate failed to consider crucial evidence and the child's best interests. The Appellant sought for the High Court to set aside the trial magistrate’s judgment and grant her custody of the child, with reasonable access to the Respondent. The Respondent (JMR) opposed the appeal by filing a Notice of Preliminary Objection on February 19, 2024, arguing that the High Court lacked jurisdiction because the child was no longer in Kenya. 

THE HIGH COURT'S HOLDING 

• The High Court decided that it DID have the power to hear the appeal. It dismissed the father's preliminary objection. 
• After considering everything, the High Court decided there was no good reason to change the first court's decision. It dismissed the grandmother's appeal completely.
• The judgment of the Children's Court was upheld.
• No orders were made regarding costs, as it was a family matter. 

THE HIGH COURT'S REASONING 

The High Court's reasoning for its decision was based on two main points: jurisdiction and the substantive issue of custody, prioritizing the best interests of the child and the role of the biological parent. 

A. Reasoning on Jurisdiction: 

It stated that the High Court's jurisdiction is established under Article 165 of the Constitution of Kenya, granting it unlimited original jurisdiction, including matters concerning children's rights. Crucially, the court emphasized that the fact that a minor is outside the country does not negate the High Court's jurisdiction, as its focus remains on the child's well-being and the protection of their rights. The court referenced Republic v Senior Resident Magistrate Mombasa ex parte HL & another, which affirmed that Kenyan courts have jurisdiction to give effect to child rights irrespective of the child's origin or current location, as the rights of the child are paramount under the Constitution. Based on these principles, the court concluded that it indeed had jurisdiction to hear the appeal, thus dismissing the preliminary objection. 

B. Reasoning on Custody (The Appeal): 

As a first appeal, the High Court was obligated to re-consider and re-evaluate the evidence from the lower court.

Paramountcy of the Child's Best Interest: The court reiterated that in custody matters, the best interest of the minor is of paramount priority. It cited Section 8(1) of the Children Act 2022, the UN Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child, all emphasizing this principle. The court noted that what is the best interest of the child has not been defined by the law and will depend on the circumstances of each particular case.

Principles for Custody Orders: The court highlighted Section 103 of the Children Act, which lists various factors to consider in making custody orders, including the conduct and wishes of parents/guardians, relatives' wishes, the child's ascertainable wishes, likelihood of harm, community customs, and religious persuasion.

Right to Parental Care: The High Court emphasized that a child has a fundamental right to live with and be cared for by his or her parents, citing Section 11(2) of the Children Act, Article 7 of the 1989 UN Convention on the Rights of the Child, and Article 19 of the African Charter on Rights and Welfare of the Child.

Parental Responsibility After Mother's Death: The court noted that Section 34(1) of the Children Act stipulates that upon the death of the mother, the father, if living, assumes parental responsibility for the child, either alone or with a testamentary guardian. The trial court had found that the mother's will did not expressly appoint a legal guardian for the child's custody.

Primacy of Biological Parent: The court reasoned that parental responsibility attaches to the parent, and the child's right to parental care means it is in their best interest to be brought up and cared for by their parent. This right can only be denied if it is proven with cogent evidence and valid grounds that the parent is not suitable or is incapable.

Reliance on Precedent: The court relied heavily on the High Court case MJC v LAC & PFC (Civil Appeal No 108 of 2018) and a subsequent Court of Appeal decision (Civil Appeal No 1191/2021) involving similar facts. In these cases, it was held that: 

• There is no basis to impose parental responsibility on others (like grandparents) when a surviving parent is legally bound, ready, and willing to take it on. Grandparents are not guardians in the strict legal sense.
• The surviving parent has parental responsibility unless exceptional circumstances are demonstrated to justify otherwise.
• The English case Re G was cited, emphasizing that rearing a child by their biological parent is typically in the child’s best interest, and a child should not be removed from parental care without compelling reason.

In the end, the best interests of the child remain the golden thread running through all decisions touching on children under Kenyan law. By grounding this principle in Article 53 of the Constitution and reinforcing it through the Children Act, 2022, the courts ensure that the child’s welfare is never overshadowed by competing parental interests. Cases such as MTKO v JMR demonstrate how this standard is applied in practice, reminding us that every ruling is ultimately guided by the need to protect, nurture, and prioritize the child above all else. Catch you in the next blog! 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

MTKO v JMR (Civil Appeal E064 of 2023) [2025] KEHC 3681 (KLR) (Family)