Kenya Courtroom Guidelines Fathers Can Get Custody of Minors

Joel Samson, a father to two minors, recounts the day in December 2020 when his family broke up due to what he says were financial misunderstandings after losing his job.

Joel says the mother of his 6- and 12-year-old daughters sent him out of their house and will not let him return.

“My wife was working, she had a job, my job was gone with Covid, so I could not provide for my family,” Samson said.

An April 7 court ruling by Justice Joel Ngugi of the Nakuru law courts said fathers can be granted custody of young children.

The ruling up-ends decades of Kenyan law. Section 8 of the Children’s Act of 2001 says a child under the age of 10 is to be given to the mother unless there is good reason to do otherwise.

Justice Ngugi said that law is not necessarily in the best interest of children. In his ruling, he granted custody to a man who had been caring for his child for six years while the mother lived abroad.

Samson said the ruling will give fathers like him a chance to raise their children despite divorces.

“In most cases in the scenario, like in our country here, most fathers are losing custody of their children based on gender considerations,” Justice Ngugi said.

VOA reached out by phone to the mother of Samson’s children, Linda Njuki, for comment. Njuki declined to be recorded but said, quote, “I believe in myself. I can take care of my kids.”

She also expressed concern that children might suffer in case a divorced man remarries.

Advocacy groups like the Kenya Men Engage Alliance say the Children’s Act is keeping some children under the care of incapable parents.

Michael Onyango is the alliance’s manager.

“There are so many men who are capable of doing the role and actually doing it in a way that the child will not feel left out or abandoned in a case where the family has broken up,” Onyango said.

The Federation of Female Lawyers (FIDA Kenya) told VOA that the best interest of a child is key in custody matters, regardless of gender. Brenda Yambo, a legal counsel at FIDA Kenya explains why.

“Since time immemorial, mothers have been known to be the best caregivers to their children,” Yambo said. “This may not be true in all circumstances. That’s why for each and every case it’s done on merit. Each case is different.”

Meanwhile, Joel Samson hopes the landmark court ruling will help men like him change their own situation and win at least partial custody of their young children.

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