Authored By: Gibran Akidah Wanje
University of Nairobi
Abstract
The Children Act 2022 modernizes Kenya’s “Best Interests of the Child” principle yet its application remains hindered by normative vagueness and judicial subjectivity. This article argues that despite the First Schedule provisions of essential “ingredients” for welfare decisions, it lacks a “recipe” for weighting and balancing them. Such ambiguity creates a “judicial lottery,” compromising legal certainty and equality. This article critiques the “illusory” statutory guidelines through analytical and doctrinal analysis of the legislative rules and the legal arenas where the principle is applied, including custody, juvenile justice and succession. To facilitate Jurisdictional consistency, it proposes a structured discretion model incorporating mandatory fact-finding, proportionality justification, and multi-disciplinary assessment tools to transform the principle from a subjective gamble into an objective legal shield.
Key Words: Best Interests of the Child, Children Act 2022, Judicial Subjectivity, Legal Certainty, Welfare Checklist, Normative Vagueness, Structured Discretion, Jurisdictional Consistency.
Introduction
Children are a vital component of a thriving civilization as the living bridge between our history and future. By embodying the goals and ambitions of the setting in which they are raised, they guarantee the continuance of descents and heritage. It is thus imperative that their welfare is prioritized, even when they are comparatively unable to defend their rights.[1] This is where the ‘Best Interests of the Child’ Principle is operationalized, a principle that can be said to be a globally enshrined standard. In Kenya, while the recent Children Act 2022 modernizes and fleshes out the principle, continuous Vagueness and Ambiguity of the Principle continue to perpetuate Judicial subjectivity and Legal Indeterminacy across Kenyan Courts. The Provision of Consideration factors under the Act is a partial safeguard due to lack of a weighing basis. While the recent reforms signify a necessary step towards effectively championing and prioritizing the best interests of the child, this article contends that the current provisions in determining the best interests of the child reduce the margin of error without ensuring total consistency. They provide the ‘ingredients’ but lack a ‘recipe’ necessitating a Structured Discretion model to ensure uniformity in judicial outcomes.
Codification and Main Legal Analysis
As evident in the legal provisions applicable in Kenya, what is of the best interests of the Child has not been defined by law, there is no clarity on what elements constitute the notion of the best interests of the child. [2] This is manifested in both domestic laws and international instruments incorporated and forming part of the law in Kenya.[3]
Domestic Provisions
The Constitution – The Best Interests of the Child doctrine is a constitutional imperative under Article 53 which states that a child’s best interests are of paramount importance in every matter concerning the child.[4]
The Children Act 2022 – The Act affirms the constitutional position by providing:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a)the best interests of the child shall be the primary consideration;
(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.[5]
International provisions
The spirit of the international standards mandated by international provisions is what is reflected in the national provisions.
The United Nations Convention on the Rights of the Child – provides that 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.[6]
African Charter on the Rights and Welfare of the Child – provides that the best interests of the child shall be the primary consideration in all actions concerning the child undertaken by any person or authority. [7]
This illustrates that domestic instruments are congruent with the global mandates.
Analysis: Navigating Normative Vagueness: The Interplay of Judicial Flexibility and Discretionary Limitations
Vagueness manifests itself in that the laws establish the principle of the best interests of the child as the primary consideration but fail to provide a concise legal construction of what the principle entails. The lack of a definite definition presents a substantial obstacle.[8] It is acknowledged that this ambiguity creates flexibility which is seen to be crucial as each child’s interests will vary depending on the specifics of each instance.[9] Hence the argument that the principle should be afforded a broad and flexible meaning to account for specific variables.[10]
The requirement of this flexibility is not contended in this article, rather it interrogates the expansive judicial latitude that develops from it. The contention lies in balancing the outlined factors in determining a child’s best interests.[11] This process should be subject to prescribed limitations and not be left to the subjectivity or voluntarism of the presiding judges. While the various statutory considerations provided already enshrine flexibility, grey areas inevitably arise when balancing these competing factors. It is maintained that to foster jurisdictional consistency, the discretion applied to these factors must be limited by predetermined regulations.
The “Elastic” Application: Mapping the Principle in Kenyan Law
To understand the impact of judicial subjectivity, one must first map the diverse legal landscapes where the principle is frequently applied. The following section elaborates on the primary spheres of Kenyan law where the “best interests” principle is the determinative power.
- Family Context
The principle is widely relevant in the realm of family disputes such as Custody, Maintenance and Parental responsibility. Custody constitutes parental rights and responsibilities to make major decisions about a child’s upbringing and the physical possession, care and control over a child in its ‘actual’ form.[12] It is to be decided on the primary consideration of the best interests of the child as established in the celebrated case of Wambwa v Okumu [13]upon consideration of several factors under section 103 of the Children Act.
Maintenance is the legal obligation of meeting a child’s daily needs including shelter, education, medical care, food and clothing ensuring the child’s welfare,[14] Parental responsibility subsists in the duties, rights, powers and authority by law of the parent with regard to his child. Both must be assessed fairly with the best interests of the child being the paramount consideration.[15] Parental responsibility can also be acquired through other ways provided under the Children Act including Adoption, Guardianship and foster care, all of which are to be decided with the principle as the determinative power.
- Child Protection
This encompasses the state’s power to intervene through judicial intervention provided for under Part XI of the Children Act which provides powers to make court orders to ensure the welfare of the children, particularly those in need of care and protection under sections 142 and 144 including those subjected to abuse, neglect and other necessitating circumstances. These measures are predicated on the paramountcy of the child’s best interests.
- Children in conflict with the law and Juvenile Justice
The principle is also manifested within the juvenile justice system which focuses on rehabilitation rather than retribution and in handling children in conflict with the law. This is demonstrated by the provisions of mitigating factors and specific legal frameworks for minors which recognize their greater capacity for rehabilitation than adults and their physiological and physical vulnerability.[16] Part XV of the Children Act provides special provisions for ensuring the welfare of children including diversion, which purports to make use of alternative methods of holding children accountable for their unlawful actions, [17] detention as a measure of last resort subject to Section 223 and defenses based on the age of a child to establish the child’s incapability of the requirement of mens rea as explained in the recent case of Republic v NAS[18]. Additionally, the establishment of separate facilities for handling minors including protection units in police stations and rehabilitation schools and Centres. The act has gone so far as to limit procedures including the words that should be used and those restricted.[19] This demonstrates the principle’s broad applicability in this arena.
- Succession and inheritance
When it comes to inheritance, the principle prioritizes the welfare and future security of each child by ensuring a fair distribution among them. Conflicting cultural or religious norms that may deny a child this right are superseded by this principle. This is consistent with the Constitution’s Article 27 which champions equality and prohibits any discrimination on the grounds of inter alia, religion and belief. The law of succession also requires equitable division or interest in the deceased estate among the children whether there is a surviving spouse or not.[20] This is reinforced by Section 17 of the Children Act 2022 which provides that every child shall have the right to inherit property and shall not be disinherited on several grounds including religion, origin, custom, pregnancy, opinion and birth. The recent landmark ruling in the Supreme Court case of Faraj v Mwawasi & 2 others [21] upheld this, holding that children born out of wedlock to a Muslim father have an equal right to inherit from his estate dictating that the constitutional protections and best interests of the child override traditional Islamic law interpretations.
The Critical Nexus: Why Wide Application Necessitates Rigorous Structure.
The pervasive reach of the principle across these critical legal arenas signifies its transformative power yet its ambiguity exposes legal vulnerability. Having mapped the principle’s application, it becomes imperative to interrogate the judicial latitude it is exposed to with the current legislative framework merely listing factors under the first schedule without providing framework for their balancing necessitating a critical look at the ‘illusory’ nature of these statutory guidelines.
The “First Schedule” as an Illusory Solution
The “First Schedule” is seen as an “illusory solution” lacking the specificity required to prevent judicial subjectivity and “standardless discretion” when applying the principle. Under the Children Act 2022, Section 8 (1) b provides that, the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
The Checklist Analysis: Ingredients Lacking a Recipe
The schedule provides a number of factors which serve as the welfare checklist in determining the child’s best interests including: Age, gender, background, special needs, child’s relationship with the parent, child’s wishes, parental capacity to cooperate, existence of domestic abuse and persons living with the parents.[22] The Act fails to provide a hierarchy for these factors thus the argument that it lists the ingredients for a decision but fails to provide the recipe, how the factors are to be weighed and balanced in reaching that decision.
The Problem: Judges have unfettered discretion to decide which factor is most important to be applied and prevail in the matter before them, this can open doors for their cultural and religious backgrounds to come in leading to judicial subjectivity and conflicting interpretations of what is best for a child.
A good example is where in a custody issue, there is a materially advantaged father and a low-income mother, Judicial decisions might vary on the magistrate interpretation of a child’s best interests. One may prioritize economic security favoring the father who ensures all the tangible needs are met reflecting the schedule factor of parental capacity to provide despite his limited affective engagement. In contrast, another judge who views psychological attachment as the stronger factor may favor the lower income mother who demonstrates a higher degree of emotional availability and responsiveness applying the schedule factor of the Parental relationship with the child. It is therefore evident that without a clear “weighting system” and hierarchy the first schedule is a menu where judges can “cherry pick” factors to align with their own subjective biases.
The Contention: Legal Certainty vs. Discretion
Proponents might argue that every child is unique and a rigorous structure would prevent judges from tailoring solutions to specific circumstances, however when “best” is determined by an individual Judge’s lens, the law ceases to be an objective shield and becomes a lottery. Without predictable standards, similarly situated parties may be subjected to different treatment violating the core principle of equality under the rule of law doctrine[23].
Encouraging Court – Annexed mediation and out of court settlement as parties are more likely to settle when they know what the likely legal outcome would be. However, if the law is uncertain, parties would try their “luck” in litigation hoping for a discretionary win. This should not suggest that litigation is the way out as litigants also want some level of certainty in their suits. Increased legal certainty therefore also leads to reduced frivolous and unmeritorious cases reaching the court room as parties would be more certain of outcome and probable dismissal aiding reduced case backlog.
Accountability and procedural fairness – Certainty facilitates judicial accountability due to a clear ‘recipe’ for balancing factors making it easier for courts to make just and reasonable orders. When the provisions are limited on the factors alone, the threshold is so low that the decision only needs to point out a factor in the schedule that a judge can pick discretionarily lessening accountability for reasoning and balancing the factors. Judges will have to explain how they gave one consideration more weight than another under a systematic framework making the process open and clear.
This thus refutes the argument that total discretion is the only way to be child centered and address unique situations of different children. The law should provide a default starting point for the balancing of the determinants to aid a standard decision-making process.
Proposals for Harmonization: The Structural Approach
To solve the tension between discretion and predictability, a structured framework must be established to operationalize the principle. While a legislative amendment of the First schedule of the Children Act would be the most direct solution, such a process is often obstacle by procedural delays. A more efficient alternative is the Cabinet Secretary exercising delegated powers under Section 8 (4) of the Act to promulgate regulations to discipline judicial discretion through the following three-pronged approach:
Mandatory fact finding (Exhaustion) – this ought to be the starting point by making a judge consider every determinant in the schedule and other relevant factors unique to the child’s situation preventing a judge from narrowing their focus solely to factors they find personally relatable or culturally significant.
Proportionality Justification – If one factor is prioritized against another, the judge must provide a reasoned proportionality explanation to facilitate accountability and review of the decision ensuring that any deviation from established norms is justified by the unique exigencies of the case rather than judicial whim.
Multi-Disciplinary Weighted Assessment Tools – To achieve the uniformity and consistency sought for, there should be developed a standard weighted assessment tool to guide the balancing of the factors. This tool should be multi-disciplinary developed in collaboration with child psychologists, social workers and legal practitioners for it to be comprehensive of all factors grounded in child development rather than subjective morality. The tool can be adopted by the Kenya Judiciary Academy [24]to train judicial officers handling children matters to enhance its application in different legal landscapes for same interpretive rubric therefore reducing the “judicial lottery.”
Conclusion
The “Best Interests of the Child” remains the keystone of Kenyan Jurisprudence bridging between heritage and future aspirations. While the Children Act 2022 aligns with international standards to prioritize child welfare, the frameworks ail a “recipe-less” approach. By providing a checklist of ingredients in the First Schedule without a weighting hierarchy, the law inadvertently causes judicial subjectivity and indeterminacy. This transforms quest for justice into a “judicial lottery” where outcome may depend more on personal lenses than objective standards. While Flexibility is necessary to address the unique variables of every child, it should not be to the detriment of Legal certainty and accountability.
To harmonize discretion with predictability, a structured framework is fundamental. The Cabinet Secretary through delegated powers can implement a three-pronged approach: Mandatory fact-finding, proportionality justification, and a multi-disciplinary weighted system. These reforms complemented by training via the Kenya Judiciary Academy will ensure the principle operates as an objective shield rather than a discretionary gamble.
Bibliography
Table of Cases
Kenya
Faraj v Mwawasi & 2 others [2024] KESC 61 (KLR)
MAK v RMAA & 4 others [2023] KESC 21 (KLR)
Republic v NAS [2024] KEHC 6752 (KLR)
Wambwa v Okumu [1970] EA 578
Other Jurisdictions
Centre for Child Law v Minister for Justice and Constitutional Development [2009] ZACC 18
Table of Legislations
Kenya
Children Act 2022
Constitution of Kenya 2010
Law of Succession Act (Cap 160)
International Instruments
African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49
United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
Secondary Sources
Alston P, ‘The Best Interest Principle: Towards a Reconciliation of Culture and Human Rights’ (1994) 8(1) International Journal of Law, Policy and the Family 1
Degol A and Dinku S, ‘Notes on the Principle “Best Interest of the Child”: Meaning, History and its Place under Ethiopian Law’ (2011) 5(2) Mizan Law Review 319
Gichuru D and Walubengo N, ‘Custody & Maintenance, Parental Responsibility & Child’s best interest considerations, the Children’s Act 2022’ (CM Advocates LLP, 15 February 2023) www.cmadvocates.com accessed 6 February 2026
Kachero D, ‘Principle of Best Interest of a Child: Insights’ (MMS Advocates, 19 April 2023) https://mmsadvocates.co.ke/principle-of-best-interest-of-a-child-insights/ accessed 6 February 2026
Kenya Judiciary Academy, ‘About KJA’ <www.kja.go.ke> accessed 7 February 2024
Moraa T and Gor G, ‘The Nexus Between the Best Interests of the Child and Detention of Children in Conflict with the Law’ (2024) 7(1) Kabarak Journal of Law and Ethics 25
[1] Terry Moraa and George Gor, ‘The Nexus Between the Best Interests of the Child and Detention of Children in Conflict with the Law’ (2024) 7(1) Kabarak Journal of Law and Ethics 25
[2] Dennis Kachero, ‘Principle of Best Interest of a Child: Insights’ (MMS Advocates, 19 April 2023) <https://mmsadvocates.co.ke/principle-of-best-interest-of-a-child-insights/> accessed 6 February 2026
[3] Constitution of Kenya 2010, art 2(5)– (6)
[4] Constitution of Kenya 2010, art 53(2)
[5] Children Act 2022, s 8
[6] UN Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 3
[7] African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49 art 4
[8] Aron Degol and Shimelis Dinku, ‘Notes on the Principle “Best Interest of the Child”: Meaning, History and its Place under Ethiopian Law’ (2011) 5(2) Mizan Law Review 319
[9] Kachero (n 2)
[10] Philip Alston, ‘The Best Interest Principle: Towards a Reconciliation of Culture and Human Rights’ (1994) 8(1) International Journal of Law, Policy and the Family 1
[11] Children Act 2022, sch 1
[12] Children Act 2022, s 2
[13] Wambwa v Okumu [1970] EA 578
[14] Dianah Gichuru and Nelima Walubengo, ‘Custody & Maintenance, Parental Responsibility & Child’s best interest considerations, the Children’s Act 2022’ (CM Advocates LLP, 15 February 2023) cmadvocates.com accessed 6 February 2026
[15] MAK v RMAA & 4 others [2023] KESC 21 (KLR)
[16] Centre for Child Law v Minister for Justice and Constitutional Development [2009] ZACC 18 [29]
[17] Children Act 2022, s 226
[18] Republic v NAS [2024] KEHC 6752 (KLR)
[19] Children Act 2022, s 237
[20] Law of Succession Act (Cap 160) ss 35 and 38
[21] Faraj v Mwawasi & 2 others [2024] KESC 61 (KLR)
[22] Children Act 2022, sch 1
[23] Constitution of Kenya 2010, art 10
[24] Kenya Judiciary Academy, ‘About KJA’ www.kja.go.ke accessed 7 February 2024.
