THE PRINCIPLE OF THE BEST INTEREST OF THE CHILD AS PROVIDED IN THE KENYAN LAW -22ND MARCH 2025
THE PRINCIPLE OF THE BEST INTEREST OF THE CHILD AS PROVIDED IN THE KENYAN LAW -22ND MARCH 2025
- WHAT IS THE PRINCIPLE OF THE BEST INTEREST OF THE CHILD IN THE KENYAN LAW?
According to the United Nations (UN) Convention on the Rights of the Child (CRC), which Kenya is a State Party, it states thus; “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (Article 3 (1)).
What does this actually mean?
The Children Act of 2022 (Cap. 141, Laws of Kenya) defines the best interest of the child as “the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution and section 8 of this Act” (Section 2).
What are these rights?
Article 53 (1) of the Constitution of Kenya (CoK) 2010 lists the rights of children, which include the rights to: a name and nationality from birth; basic education; basic nutrition, shelter and health care; protection from abuse, neglect, harmful cultural practices and all forms of violence, inhuman treatment and punishment, and hazardous and exploitative labour; parental care and protection, which includes equal parental responsibility, whether or not the parents are married to one another; and not to be detained, except as a measure of last resort, for the shortest appropriate period of time and separate from adults and in conditions that take into account the child’s sex and age.
Section 8 of the Children Act 2022 states that the best interest of the child shall be determined based on the considerations set out in the First Schedule of the Act. The list is not exhaustive, as it states in subsection 18 that the determination shall consider (in addition to the 17 prior considerations) “any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child”.
Basically, from the above descriptions, the principle of the best interest of the child can be summed up as all the considerations and measures that are taken to safeguard a child’s enjoyment of their inalienable human rights and to ensure their physical and psychological well-being.
- HOW HAVE KENYAN COURTS APPLIED THIS PRINCIPLE?
“The law guards the rights of a child jealously. To my mind, this is because children are vulnerable members of society and although they have parents, it is paramount that the law lends its hand in protecting them to ensure that they can enjoy the rights granted to them by the law. Starting with the Constitution of Kenya 2010 and the relevant statutes thereunder, as well as the international instruments, it is evident that there is a common thread running through all those pieces of legal instruments to the effect that the best interest of the child is of paramount importance.” (Mutuku, J.)
Kenyan courts and tribunals are constitutionally mandated to protect and promote the purpose and principles of the Constitution (Article 159 (1) (e)). Children, on account of their vulnerability, are especially protected under Kenyan law, and as such, Kenyan courts are entrusted with ensuring that their rights are safeguarded. Below is a table that breaks down some authorities on the principle of the best interest of the child, across various subject matters, as pronounced by Kenya’s superior courts. Please note that in the best interest of the child, the courts are guided not to use the full name of the child but the initials as demonstrated by the case law hereinunder.
| TITLE | SUBJECT MATTER | ISSUE(S) FOR DETERMINATION | COURT’S HOLDING |
| In The Matter of Baby LWW (Child); High Court Miscellaneous Application No, 104 of 2017 [2021] eKLR |
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| MAK v RMAA and 4 others; Supreme Court Petition (E003) of 2022 [2023] eKLR |
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| RWT (suing as next friend of BGN – a minor) v SNS School; High Court Petition 290 of 2012 [2012] KEHC 5408 (KLR) |
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| MWM v MVM alias MJ; High court of Kenya Adoption No. 2 of 2017 [2020] eKLR |
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| Republic v K alias K; High Court Criminal Case E053 of 2022 [2023] KEHC 18769 (KLR) |
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- IS KENYA ON THE RIGHT TRACK IN TERMS OF PROMOTING THE BEST INTEREST PRINCIPLE?
Based on the illustrations provided above in respect of the Constitution, relevant laws and international legal instruments to which Kenya is signatory, on the face of it, it is evident that Kenya has put a premium on the protection of the rights of children and the promotion of the principle of the best interest of the child.
However, sometimes, as illustrated by the MAK v RMAA case, courts will struggle with finding a balance between enforcing parental rights and upholding the principle of the best interest of the child. Thankfully, the hierarchy of courts in Kenya enables an applicant to exhaust all remedies available to them in the event that their rights and/or those of their children are not adequately protected. This therefore means that judicial officers bear a great responsibility in ensuring that not only do children’s best interests get the attention they deserve, but that no parent is unduly disadvantaged in that determination, as they bear an equal responsibility towards the child.
