Abstract

This paper examines the statutory and jurisprudential framework governing the rights of the child in Kenya, with particular emphasis on the administration of justice through the children’s courts. It traces the doctrinal foundations of child rights from the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) through their domestication in Kenyan law under Article 53 of the Constitution of Kenya, 2010, and the Children Act, 2022 (No. 29 of 2022). The paper further analyses the leading Kenyan authorities on the best-interests principle, parental responsibility, custody and maintenance, children in conflict with the law, and children in need of care and protection, drawing on judgments of the Supreme Court, Court of Appeal and High Court reported on the Kenya Law Reports portal (kenyalaw.org). Particular attention is paid to the 2022 statutory reform, which repealed the Children Act, 2001 (Cap. 141), and to its practical implications for legal practice before the children’s courts.

1. Historical and Normative Background to Child Rights

The rights of the child are a species of universal human rights, grounded in the proposition that dignity attaches to every human being irrespective of age, size or social standing. Historically, legal systems treated the child primarily as an object of parental authority rather than a bearer of independent rights — a position reflected in early Roman law, under which a child was subject to the father’s power of life and death, and in early English law, which emphasised the physical enforcement of parental authority. The modern trend, by contrast, subordinates parental rights and duties to the enjoyment of the rights of the child.

International recognition of children’s rights developed through the Geneva Declaration of the Rights of the Child, and later through the UN Convention on the Rights of the Child, adopted by the UN General Assembly in 1989 and entering into force on 2 September 1990. Kenya is a State Party to the CRC. At the regional level, the African Charter on the Rights and Welfare of the Child supplements the CRC with an Africa-specific framework — imposing both rights and obligations on the child, addressing practices such as female genital mutilation and child marriage under Article 21, and raising the minimum age for recruitment into armed forces to 18 years (compared to 15 years under the CRC).

2. The Constitutional and Statutory Framework in Kenya

2.1 Article 53 of the Constitution of Kenya, 2010

The Constitution of Kenya, 2010 entrenches children’s rights directly. Article 53(1) guarantees every child rights including parental care, basic nutrition, shelter, health care and protection from abuse, neglect, harmful cultural practices, and forms of violence. Article 53(2) provides the cardinal interpretive rule applied throughout Kenyan child law: “A child’s best interests are of paramount importance in every matter concerning the child.”

2.2 From the Children Act, 2001 to the Children Act, 2022

The Children Act, 2001 (Act No. 8 of 2001, Cap. 141) was, for two decades, the principal legislation domesticating the CRC and the ACRWC in Kenya. It was repealed with effect from 26 July 2022 by the Children Act, 2022 (No. 29 of 2022), assented to on 6 July 2022. The 2022 Act was enacted to align child law with Article 53 of the 2010 Constitution — the 2001 Act having pre-dated the current Constitution — and to close gaps that had emerged in two decades of practice. Practitioners should note that any analysis, precedent, or textbook commentary referencing “the Children Act” without further qualification should now be read, presumptively, as a reference to the 2022 Act; citations to the repealed 2001 Act remain relevant only for historical or transitional purposes, or where a matter arose and was determined under the former regime.

Material changes introduced by the 2022 Act include, among others:

• Raising the age of criminal responsibility from 8 to 12 years (discussed at section 5 below);
• Express protection of children from online abuse, exploitation and cyber-enticement;
• Formal abolition of the common-law parental right to “administer reasonable punishment” to a child;
• Establishment of a statutory Child Welfare Fund under the Public Finance Management Act;
• Introduction of kinship adoption as a distinct, less technical pathway to permanency for children within their extended family;
• A statutory preference for family-based alternative care (fostering, guardianship, kinship care) over institutionalisation of children.

3. The Children’s Courts: Structure and Jurisdiction

The Act establishes children’s courts with jurisdiction to hear and determine civil and criminal matters concerning children, sitting separately in time and place from ordinary courts, and empowered to depart from the strict rules of procedure and evidence that bind other courts. Magistrates presiding in children’s courts may call for expert evidence or reports on their own motion, without a party’s application. Two jurisdictional limits are of particular importance to practitioners:

• Murder charges against a child may not be tried by the children’s court and fall to be heard by a court of competent jurisdiction applying the special procedural safeguards for children;
• Adoption proceedings are reserved to the High Court.

Attendance in a children’s court is restricted to court officers, the parties, parents or guardians, accredited press, and any other person the court permits — and the Act prohibits the publication of any information, photograph or drawing that would reveal the identity of a child concerned in proceedings. This statutory restriction is not merely procedural; as discussed in section 4.2 below, it has been given direct constitutional force by the Supreme Court.

4. The Best-Interests Principle in Kenyan Jurisprudence

Section 4 of the repealed 2001 Act — and its successor provisions in the 2022 Act — required every person and body making a decision concerning a child to treat the child’s best interests as “a primary consideration”, giving domestic statutory effect to Article 53(2) of the Constitution. Kenyan courts have developed a substantial body of jurisprudence applying this principle, three strands of which merit particular attention for practitioners advising on children’s matters.

4.1 Guidelines for Balancing Best Interests Against Parental Rights

In MAK v RMA & 4 others, Petition No. 2 (E003) of 2022, [2023] KESC 21 (KLR), the Supreme Court of Kenya set out guidelines to be applied by courts when balancing a child’s best interests against parental rights and responsibilities in custody and parental-responsibility disputes, including: the existence of any parental-responsibility agreement between the parties; the past conduct and performance of each parent; each parent’s presence and ability to guide the child; the ascertainable wishes of a child capable of expressing an opinion; the financial status of each parent; the individual needs of the child; the quality of the available home environment; and the need to preserve the child’s personal relationship and direct contact with both parents, save where this would not serve the child’s best interests. These guidelines are now routinely cited by the High Court in custody and maintenance appeals — for example in SI v AS & another, Children’s Appeal Case E011 of 2020, [2024] KEHC 14122 (KLR), and EWM v VS, Children’s Case 746 of 2019, [2024] KEMC 82 (KLR).

4.2 The Best-Interests Principle as a Constraint on Media Freedom

The most significant recent authority on the best-interests principle in the criminal justice context is Macharia & 6 others v Standard Group Limited & 4 others, Supreme Court Petition No. 13 (E015 of 2022), decided 8 September 2023. Seven children charged with arson in Murang’a had their names, images and voices published by four media houses. The High Court and Court of Appeal had both dismissed the children’s constitutional petition, reasoning that the publication served the public interest. The Supreme Court reversed both lower courts, holding that the media houses had violated the children’s right to privacy under Article 31(c) and their right under Article 53(2) to have their best interests treated as paramount. Applying the two-stage limitation test under Article 24 of the Constitution, the Court found that the restriction on publishing the identities of children in conflict with the law is a limitation on media freedom that is both prescribed by law (the Children Act and Article 50(8) of the Constitution) and reasonable and justifiable in an open and democratic society. The Court went on to issue seven guidelines for responsible reporting on children in conflict with the law, and confirmed that a proven violation of a constitutional right entitles the victim to a remedy irrespective of proof of loss.

For firms advising media clients, schools, or child-protection agencies, Macharia is now the leading authority confirming that the statutory prohibition on identifying children before the courts (discussed at section 3 above) carries full constitutional weight, and is enforceable by the child directly, including against non-State actors.

4.3 Maintenance and the Best-Interests Principle

On maintenance, the High Court has held that a stay of execution of a maintenance order should be granted only in rare cases, since parents bear a statutory and mandatory duty to provide for their children’s upkeep, and suspension of a maintenance order is ordinarily contrary to the child’s best interests: ZM v EIM [2013] eKLR (Musyoka J), applied in [name withheld] v [name withheld], Children’s Appeal Case 58 of 2023, [2023] eKLR.

5. Children in Conflict with the Law

5.1 Age of Criminal Responsibility

Section 221 of the Children Act, 2022 has materially altered the criminal responsibility of children, superseding section 14(1) of the Penal Code (Cap. 63), which had fixed the age of absolute criminal incapacity at 8 years. Under the current regime:

• A child under 12 years cannot, in any circumstances, be held criminally responsible for an act or omission (Children Act, 2022, ss 2 and 221(1));
• A child aged 12 to 13 is presumed incapable of distinguishing right from wrong (the doli incapax presumption) unless the prosecution satisfies the court to the contrary (s 221(2));
• From age 14, the presumption of incapacity falls away and the child may be held fully responsible, subject to the special procedural protections discussed below.

Children charged with petty or minor offences are, under the 2022 reforms, diverted to community-based systems rather than processed through the formal court system, and the Inspector-General of Police is required to establish Child Protection Units in every police station.

5.2 Procedural Safeguards for the Child Offender

Where a child does appear before the court as an offender, the court is required, among other things, to: ascertain or order an assessment of the child’s age where it is in doubt; grant the most favourable bail terms available for bailable offences; remand the child only at a children’s remand home, never an adult facility; secure the attendance of the child’s parents; order legal representation under the Act; conduct proceedings in a language the child understands; protect the child’s privacy, including by hearing the matter in chambers where possible; and avoid the language of “conviction” and “sentence”, entering instead a finding of guilt.

5.3 Treatment, Not Punishment

In sentencing (or, more precisely, disposing of) a child offender, the guiding principle is rehabilitation rather than punishment, reflected in the range of non-custodial orders available to the court — probation supervision, committal to the care of a fit person or charitable children’s institution, referral to a rehabilitation school (for children aged 10–15) or a Borstal institution (from age 16, on a probation officer’s report), counselling orders, educational or vocational placement, and community service. No child may be subjected to the death penalty, corporal punishment, or detention in an adult facility. A social inquiry report from a probation officer and a children’s officer remains, in most cases, a mandatory precondition to a non-custodial or probation order.

6. Children in Need of Care and Protection

A separate and equally significant category concerns children who come before the court not as offenders but as children requiring the law’s protection — including children living on the streets, lost children, and children whose parents are imprisoned or absent. The Act empowers the court, on the basis of reports from children’s officers, probation officers, or other experts, to return the child to the parents (with or without a supervision bond), commit the child to a rehabilitation school, or place the child under the supervision of a specified officer or authority. The overriding principle — consistently affirmed in Kenyan case law — is that such children are not offenders but victims of circumstance, and the court’s role is protective rather than adjudicative in the punitive sense.

7. Alternative Care, Guardianship and Adoption

Where a child cannot remain with their family, the Act provides a hierarchy of alternative care — fostering, kinship care, guardianship and adoption — with institutionalisation as a measure of last resort. Adoption remains within the exclusive jurisdiction of the High Court, now subject to oversight by the Children’s Council and, in most cases, mandatory consent of a child above ten years. The 2022 Act narrowed eligibility for guardianship of a child born in or resident in Kenya to Kenyan nationals, a departure from the position under the repealed 2001 Act, and reformed inter-country adoption safeguards in the wake of well-documented concerns about the regulation of foreign adoptions.

8. Harmonisation with Related Legislation

A recurring criticism of the 2001 regime was the existence of inconsistent statutory definitions of “child” across Kenyan law — for example, the age of 16 previously referenced in employment and marriage contexts, against the Children Act’s threshold of 18. This inconsistency has since been substantially resolved: the Marriage Act, 2014, section 4, now fixes a uniform minimum marriage age of 18 years for both sexes and for all forms of marriage — civil, customary, Christian, Hindu and Islamic — with contravention constituting a criminal offence carrying a custodial penalty of up to five years or a fine of up to KSh 1,000,000, or both. Firms advising on family or child-protection matters should therefore treat any reference to a lower statutory marriage age as reflecting the pre-2014 legal position, now superseded.

9. Implementation Challenges

Notwithstanding the statutory advances of the past two decades, courts, practitioners and commentators continue to identify recurring implementation gaps, including:

• Persistently technical procedural rules causing delay in the disposal of children’s matters, in tension with the statutory expectation of expeditious resolution;
• Limited access to legal representation for children and their families, absent a comprehensive government legal-aid scheme dedicated to children’s matters;
• Insufficient dedicated infrastructure — children’s court buildings, remand facilities and rehabilitation schools remain concentrated in a small number of counties;
• Inadequate provision of psychosocial support (counsellors and social workers) attached to children’s courts;
• Continuing tension between statutory child-protection norms and entrenched cultural or customary practices in parts of the country.

10. Conclusion

The Children Act, 2022, read together with Article 53 of the Constitution and a growing body of appellate authority — most notably the Supreme Court’s decisions in Macharia v Standard Group and MAK v RMA — has materially strengthened the legal architecture for the protection of children before the Kenyan courts. The courts remain the ultimate custodians of the rights the Act confers, and the best-interests principle now operates not as an aspirational standard but as an enforceable constitutional norm capable of overriding competing rights, including media freedom. Continuing challenges of implementation, resourcing and procedural delay notwithstanding, the trajectory of both statute and precedent since 2010 has been consistently toward treating the child as an autonomous rights-holder, rather than an object of parental or state discretion.

Select Statutes and Authorities

Statutes

• Constitution of Kenya, 2010, arts 24, 31(c), 50(8), 53
• Children Act, 2022 (No. 29 of 2022)
• Children Act, 2001 (Act No. 8 of 2001, Cap. 141) (repealed 26 July 2022)
• Marriage Act, 2014 (No. 4 of 2014), s 4
• Penal Code (Cap. 63), s 14(1) (superseded, as to children, by Children Act 2022, s 221)
• Sexual Offences Act, 2006 (No. 3 of 2006)
• United Nations Convention on the Rights of the Child, 1989
• African Charter on the Rights and Welfare of the Child, 1990

Case Law

• Macharia & 6 others v Standard Group Limited & 4 others, SC Petition No. 13 (E015 of 2022) [2023] KESC (8 September 2023)
• MAK v RMA & 4 others, Petition No. 2 (E003) of 2022 [2023] KESC 21 (KLR)
• ZM v EIM [2013] eKLR
• SI v AS & another, Children’s Appeal Case E011 of 2020 [2024] KEHC 14122 (KLR)
• EWM v VS, Children’s Case 746 of 2019 [2024] KEMC 82 (KLR)
• In re SB & AB (Minors), Civil Appeal E037 of 2021 [2023] KEHC 24284 (KLR)

This publication is provided for general informational purposes and does not constitute legal advice. Readers should seek specific advice on their particular circumstances.