The overriding and undeniable position in law is that when it comes to children matters, the best interests of the child will always trump over all other rights that come into contact and or conflict with these interests. However, where a court of law is called upon to balance the best interest of the child and parental rights and responsibilities in view of conflicting claims by both parents;

  1. Are there certain key points of reference that can be used in making a decision that will impact the child?
  2. Is there a point, based on the parent’s conduct that the rights of a parent can be extinguished permanently?
  3. And where there is a Parental Responsibility Agreement, how can the same be vacated?

The Supreme Court, on the 24th of February, 2023 rendered a decision in Petition No. 2 (E003) of 2022 Mutheu Agatha Khimulu vs Raheem Mehdi Aziz Azad that addressed these questions. In this piece, we look at the Courts position on each of the questions posed above.

Whether parental rights and responsibilities can be extinguished.

The Court was called upon to determine whether or not, the character and conduct of a parent can be used to extinguish parental rights. It was the contention of the Petitioner that the rights of a child to parental care are innate and cannot be extinguished unless it is proven that the conduct of the parent is against the best interests of the child. The Appellate Court, in deciding on this matter, had determined that it was not in the best interests of the child to be left in the care of a parent who causes him physical and mental harm. The Apex Court rejected this finding by the Court of Appellate for want of cogent and sufficient evidence demonstrating that a parent presented a continuous threat to the child. The Court further observed that there was no demonstration that the parent posed a continuous danger to the child.

In finding that parental rights and responsibilities cannot be extinguished in the absence of strong evidence of a continuous threat to the best interest of the child, the Court examined the rights of the child as enumerated under Article 53 of the Constitution of Kenya, 2010. These include the right to a name and nationality from birth; the right of protection as well as the right to parental care and protection including equal responsibility of the mother and father to provide for the child. The Court then examined the rights of the Parents under Section 23 (c) of the Children Act(repealed) (now under Part II of the Children Act No. 19 of 2022) which enumerated the rights of the parent and parental responsibility to include the right to determine the name of child and give general parental guidance in religious, moral, social, cultural and other values. As such, for parental rights to be extinguished, i.e. where a parent is to have zero direct contact of the child, there has to be adduced sufficient cogent evidence to warrant the extinction of the parental rights.

The Court observed that a child’s constitutional rights to nationality, parental care, and responsibility which includes equal responsibility of the mother and father to provide for the child had been infringed through the prohibition of the mother from initiating and/or having any contact with the child. The Court held that parental responsibility is a mandatory ongoing obligation that attaches to the right of the child as it is the parent who has the responsibility to ensure that the needs of the child are catered for. The Child having a right to parental care, it would be in his/her best interests that he/she is brought up and cared for by his or her parent. This right can only be denied if it is proved with cogent evidence and valid grounds that a parent is not suitable or is incapable of taking care of the child.

Factors to be considered when balancing a child’s best interests and parental rights and responsibility.

The Court in setting down the factors that are to be considered when balancing a child’s best interests and parental rights and responsibility, underscored the meaning of the best interests of a child, observing that ‘the best interests of the child is a dynamic concept that encompasses various issues which are continuously evolving.’ This is to mean therefore that the best of interests of the child are flexible and adaptable requiring an interpretation based on individual circumstances, personal context, situation and needs.

Whereas parental rights do not trump the best interests of the child, the same cannot be ignored if they are in the best interest of the child. The Court therefore generated the following guidelines to be considered by Courts when balancing a child’s best interest and parental rights and responsibility;

  • The Existence of a Parental Responsibility Agreement between the parties;
  • The past performance of each parent;
  • Each Parent’s presence including his or her ability to guide the child and provide for the child’s overall well-being;
  • The ascertainable wishes of a child who is capable of giving/expressing his/her opinion;
  • The financial status of each parent;
  • The individual needs of each child;
  • The quality of the available home environment;
  • Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted;
  • Need to ensure that children are not placed in alternative care unnecessarily;
  • The mental health of the parents; and
  • The totality of the circumstances.

Procedure for vacating a parental responsibility agreement.

The Supreme Court also pronounced itself on the process to be followed in vacating a Parental Responsibility Agreement (PRA) particularly one that has been adopted as an order of the Court. An important pre-condition to the validity of a PRA is that it must a result of voluntary engagement between both parties. No party can be compelled to enter into a PRA. The Court held that a PRA, once adopted as an order of the Court, remained valid and a claim for its breach by one party only availed the remedy of legal proceedings to the offended party. The Court noted further that the breach of the PRA by one party, does not in any way result in the automatic termination of the Agreement but instead entitles the offended party to commence legal proceedings against the offending party as one would in a regular contract.


The decision of the Supreme Court is helpful particularly on the delicate question of balancing the best interests of the child vis-à-vis parental rights and responsibilities particularly where those parental rights and responsibilities are in the best interests of the child. The Court underscores the fact that there can be no binary definition of the best interests of the child, but instead, the same remains flexible and adaptable based on the prevailing circumstances. The guidelines formulated by the Supreme Court to help in achieving this balance will be useful in helping parties and even Courts of law navigate a very delicate situation.

By B. Malowa

This Article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact us on

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