Father with his two boys [Courtesy]
The Supreme Court has given fathers a major victory in child custody cases, giving them the same right to care for minors despite their age.
For many years the law has denied men the right to keep children when they are very young, believing that mothers would provide them with better care.
However, Judge Joel Ngugi said that just like mothers, men can change diapers, bathe children, feed them and shower with love and care.
In his April 4, 2022 ruling, Judge Ngugi said men can be granted custody of children under the age of nine.
He said parental responsibility should not automatically fall on women. Judge Ngugi stated that a man has the same right to raise his children regardless of their age.
According to the judge, the age of the child should also be weighed against his or her best interests in determining who should have custody between the mother and father.
“The judicial rule that a child of tender age belongs with the mother is merely an application of the principle in appropriate cases. Modern rule begins with the principle that the mother and father of a child each have an equal right to custody of the child.”
The decision is based on a court battle between parents, codenamed SMM and AAK. At the heart of the case were two doctrines – the child’s tender years and the child’s best interests.
The Doctrine of the Tender Years dictates that custody of young children should be given to the mother.
On the other hand, the best interest doctrine dictates that either parent can have custody if they are in the best position to provide the best life for the child.
In a rather rare instance, both SMM and AAK failed to discredit each other in order to tip the balance of justice in their favor. Instead, they both praised each other as excellent parents.
The only dispute was whether the two children with SMM should go to the US, where she lives, or stay with their father in Kenya.
SMM and AAK were married and living in the United States. They separated on November 20, 2010 and had a child aged three.
Shortly after the divorce, they reconciled and moved together in Alabama, having their second child in 2013.
AAK moved to Kenya to run his extended family’s business and came back with their first child.
In 2017, SMM approached him and assessed whether he should start a business in Kenya and possibly relocate.
However, she was not satisfied and went back to the United States, leaving the two children with their father.
When she left the country, the two boys were eight and four years old.
SMM came back to Kenya last year to take the two children with them. However, AAK disagreed, saying he managed to raise the two without her help. He asked the court to grant him custody and let the two live in Kenya.
The man claimed that they have a good education here and enjoy the warmth of their extended family in Kenya.
He expressed concern that he may not see her again since he is no longer a US citizen.
The case was first heard before the District Court. The lower court granted the man provisional custody and ordered them to continue their studies in Kenya.
Affected, SMM appealed. Before the High Court, Judge Ngugi instructed the two to try to settle the matter out of court, but it didn’t work.
In her case, SMM said the two would have better chances if she went to the US with them. She called her father an excellent parent.
According to court records, she offered to help him get a green card to ensure he would see the boys whenever he wanted.
She argued that sexual leaks made AAK an unsuitable parent to receive primary custody.
On the other hand, AAK said, children in Kenya would be surrounded by loving uncles and aunts who would continue to guide their moral and social development, unlike in the United States, where he said they would be isolated.
He told the court SMM sent money for their upkeep, but claimed his financial and social stability made him a better parent for the two.
AAK expressed fears they would face racism in the US. In the end, the judge balanced the scales of justice by ordering that both should have joint custody.
SMM will access the children whenever she is in Kenya and on her holidays or Saturdays while the husband stays with them in the country.
“Since there was no evidence in the present case that either parent was unfit or eligible for custody, it was unnecessary to grant custody to only one parent,” he ordered.
The 2022/23 budget at a glance
This year’s budget expenditure is Sh3.31 trillion, a slight decrease from the 2021/22 budget of Sh3.63 trillion.
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