MCO (Suing as mother and next friend) v DOO (Children's Case E065 of 2023) [2024] KEMC 81 (KLR)
The bottom line
#A Kenyan court gave a father actual custody of his young children because they wished to live with him, ruling the children's best interests outweigh old assumptions favouring mothers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the plaintiff is entitled to the orders sought
- 2.Costs
Key legal issues
#Who should have actual custody of the children of tender years
The father retains actual custody, care and control with joint legal custody to both parties, based on the children's ascertainable wishes, their schooling and social milieu, and the toxic relationship between the parents
The court applied sections 102(3) and 103 of the Children Act 2022 and Article 53(2) of the Constitution. It interviewed the children to ascertain their wishes under section 95(2)(a); they wished to live with their father. The children attend school from the matrimonial home and their social milieu is built around it. Videos showed prolonged parental conflict in the children's presence compromising their wellbeing. The court noted the Tender Years Doctrine is no longer inflexible and must yield to the best interests principle.
Maintenance and apportionment of parental responsibility
Both parents bear equal parental responsibility; the court apportioned school fees and medical cover to the father and school-related expenses and clothing to the mother, with shelter, utilities and food shared equally
Section 110 of the Children Act 2022 presumes joint parental duty to maintain the child whether or not the parents are married. The court adopted the equal contribution doctrine under Article 53, holding that a parent seeking maintenance must also show their own contribution. Section 31(2) enumerates the duties of parental responsibility including provision of basic nutrition, shelter, medical care and education. Maintenance orders must not be oppressive or punitive but respect each parent's financial status.
Legal principles established
#- The best interests of the child are of paramount importance in every matter concerning the child.
- The Tender Years Doctrine is persuasive but no longer an inflexible rule; it must be subjected to the best interests of the child principle.
- Both parents have a joint duty and responsibility to maintain the child whether or not they are married to each other.
- Maintenance orders are not punitive or oppressive but designed to provide for the child's needs within the means of the parent.
Court orders
#- 1.Both parties shall have joint legal custody of the minors with the father retaining actual custody, care and control
- 2.Access to the mother: alternate weekends (Fridays 6pm to Sunday 5.30pm), pick-up/drop-off at current home, half school holidays alternating Christmas and Easter, two weeks each during holiday access, unlimited but reasonable audio-visual contact
- 3.Parties to undergo co-parenting coaching under section 135(1)(e) of the Children Act within 14 days, jointly picking a counsellor and sharing costs on 50:50 basis
- 4.In case the parties cannot settle on a therapist, they are at liberty to move the court for appointment
- 5.No order as to costs
- 6.Parties at liberty to apply
- 7.Apportionment of parental responsibility: Father - school fees (tuition) and comprehensive medical cover; Mother - school-related expenses including books, uniforms and extra-curricular activities, and clothing; shelter, utilities and food shared equally depending on which party has the children
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Children Act 2022 (custody, maintenance and parental responsibility provisions); Article 53 of the Constitution of Kenya, 2010
Relief refused
#Plaintiff's claim for actual/joint custody with the children living in the current home under her care
The children expressed the wish to live with their father, attend school from the matrimonial home and their social milieu is crafted around it, so the status quo of the father retaining actual custody was retained
Defendant's counter-claim for supervised access to the plaintiff and protection orders
Structured unsupervised access to the mother was granted instead; no protection orders were made in the final orders
Costs
No order as to costs - 'That this being a family matter, no order as to costs'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That both parties shall have joint legal custody of the minors herein with the father retaining actual custody, care and control
That parties to undergo co-parenting coaching (under section 135 (1) (e) of the Children Act) 14 days from today's date. To jointly pick a counsellor and share costs on 50:50 basis
That this being a family matter, no order as to costs
It is therefore imperative that the courts safeguard the holistic wellbeing of the child, as envisioned in article 53 of the Constitution. Best interest of the child goes beyond provision of basic needs.
the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases.
Issues in the judgment
#The judgment refers to the plaintiff as 'the applicant' when discussing custody, although she is otherwise styled plaintiff
Paragraph numbering is inconsistent - two paragraphs are both numbered '3' and '1' appears twice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MCO (Suing as mother and next friend) v DOO (Children's Case E065 of 2023) [2024] KEMC 81 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/81/eng@2024-12-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.