Under common Law a parent was under an obligation to take care of his child during marriage and this obligation was only on the part of the father.  In the event of marriage break-down the father always had a right to custody unless he forfeited it through immoral or cruel conduct.  This was so stated in

Re Agar Ellis [1883] 24 Ch. D 317

The position under common law was changed by statutes which have watered down the exclusive rights of fathers over children.  One finds that common law started from a position of paternal preference when it came to rights and responsibilities over children.  The factors which weakened this paternal preference included an increased focus in children’s welfare as the primary consideration and also with the effects of the industrial revolution fathers increasingly sought work outside the home while the mothers remained at home as the primary caretakers.  The resultant division of family responsibilities influenced custody decision and the paternal preference was gradually replaced by a maternal preference.

This maternal preference was based on the tender year’s doctrine which was intended to apply to children under the age of six years and was invoked to give mothers custody of children of tender years.  The assumption here was that in the interest of the welfare of children mothers were better suited to nurture and raise children of tender years.

This particular maternal preference also obtained in Kenya for a while and this was under the Guardianship of Infants Act which has also been repealed it provided that a court in awarding custody had to ensure that the child’s welfare was of paramount consideration and if that child was of tender years, then custody was given to the mother to protect the child’s welfare and for this position

Karanu v. Karanu

Githunguri v. Githunguri

The maternal presumption of custody remained in place for many years and has only recently been substituted by the standard of the best interests of the child.

3.         Best Interests of the Child

Under this standard, custody decision are now based on considerations of the child’s needs and interests rather than based simply on the gender of the parent.
Children Act is the one that repealed

Under common law parental custodial rights include the power to control a child’s education, the power to control the discipline of the child, the power to determine the child’s religion, the power to control any property belonging to the child until the child attains majority age, the right to be the child’s legal representative if a suit is brought against or on behalf of the child and the right to decide on the type of medical treatment to be given to the child including the right to consent to such medical treatment.  Those were the parental rights that obtained under Common Law.

The leading case on custody in common law is

J v. C (1970) A.C.

In this case the parents of a child were unable to look after him and offered him for foster parenthood.  After sometime their financial situation improved and they sought to have the child returned to them.  It was held that in deciding custody of children certain factors are taken into account in common law.

Firstly the court has to have regard to the wishes of the natural parents that is the biological parents,

Secondly the court stated that where custody is being claimed by both natural parents i.e. in the event of a divorce then the court has to consider the conduct of both parents and determine firstly whether they live an immoral life.  Secondly whether their conduct is cruel and thirdly whether the parents will have enough time to look after the child.  The final consideration is that the courts in awarding custody prefer that all children go to one parent and they are hesitant to divide the children among the parents.  Common Law does not encourage split custody.

Under Common Law parental custodial rights ceased to exist once a child has attained the age of discretion which was 18 years for girls and 15 years for boys.


The main statue is the Children’s Act although we have provisions in other Acts including the Penal Code which touch on custody.  In the Matrimonial Causes Act Section 30 empowers the court to make decisions as to custody of children in divorce proceedings and also as to maintenance and education of children and under Section 3 of the Subordinate Court and Separation of Maintenance Act a married woman applying for a separation order can also be given orders as to legal custody of the children of the marriage.  However these two acts don’t give details as to how custody is to be determined.

The Penal Code also has provisions in to custody in that it creates certain offences arising from interference with custody under Section 143 where it is an offence for anybody to unlawfully take away an unmarried girl aged below 16 years from the custody or protection of their parents.  Section 174 makes it an offence for a person to deprive a parent or guardian of the custody of the child aged under 14 years.  This is referred to as child stealing.


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