Parental Responsibilities and the Rights of a Child of Unmarried Parents Under Kenyan Law

In Kenya, every child is entitled to equal rights and protection, regardless of the marital status of their parents. Whether born in or out of wedlock, the law requires every child to be treated with dignity, fairness, and equality. However, children of unmarried parents often face legal, emotional, and social challenges that more often than not affect their overall well-being.

This article explores the legal rights of a child born to unmarried parents in Kenya, based on the Constitution, the Children Act, and other relevant legislation.

✅ Legal Framework Protecting Children’s Rights in Kenya

The key laws that govern the rights of all children in Kenya include:

• The Constitution of Kenya, 2010
• The Children Act No. 29 of 2022
• The Law of Succession Act (Cap 160 Laws of Kenya)

These laws emphasize that all children are equal before the law and must not be discriminated against based on the marital status of their parents.

👶 1. Right to Parental Care and Responsibility

Under Article 53(1)(e) of the Constitution, every child has the right to parental care and protection, even when the parents are not married or living together.

What this means:

• Both the mother and father are equally responsible for the child’s upbringing whether or not the two are married/live together.
• Parental responsibility includes providing shelter, food, education, medical care, and emotional support.
• The Children Act explicitly states that both parents share parental responsibility regardless of marital status.

Where either the father or the mother refuse or neglect to contribute in the growth and development of the child, either parent can file a case in court and request for the court’s assistance in compelling the non-compliant parent where all the attempts at reaching an out of court settlement have borne no fruits.

👶 2. Child Custody and Guardianship

When unmarried parents separate or cannot live together, custody arrangements must prioritize the best interests of the child — not the preferences of the parents.

• Custody often goes to the mother unless proven unfit
• Visitation rights for the non-custodial parent (often the father) are protected by law
• Either parent may apply for joint or sole custody, depending on circumstances

Courts in Kenya are increasingly leaning toward shared parental responsibility, unless there is evidence of harm or neglect.

💰 2. Right to Child Maintenance and Financial Support

Children of unmarried parents are entitled to financial support from both parents. The common expenses which each of the parents are required to contribute to include, without limitation:

• School fees and school-related expenses;
• Clothing and housing;
• Medical expenses;
• Daily upkeep; and
• Emotional support.

What Kenyan law says:

Under the Children Act, either parent may file a child maintenance case. If one parent fails to provide support, the court can issue a maintenance order, and failure to comply can lead to legal penalties.

👨‍👩‍👧 3. Right to Custody, Care, and Access

Custody and care of the child must be guided by the best interests of the child, as per Section 8 of the Children Act, 2022.

Key facts:

• Custody does not automatically go to the mother or father.
• The court evaluates who is best suited to provide a stable, loving, and safe environment.
• The non-custodial parent has a right to reasonable access and visitation, unless it endangers the child.

If unmarried parents can co-parent amicably, they can agree on joint custody arrangements, which courts usually encourage.

📜 4. Inheritance and Succession Rights

One of the most misunderstood areas in Kenya is whether children born out of wedlock can inherit from their father. The answer is yes.

According to the Law of Succession Act:

• All children, whether born in marriage or outside of it, have equal inheritance rights.
• Once paternity is established, a child has the legal right to inherit from either parent’s estate.
• The courts have consistently ruled that discrimination based on legitimacy is unconstitutional.

🤝 5. Right to Identity and Relationship with Both Parents

Children have the right to know, bond, and form a relationship with both parents, unless doing so would be harmful. This emotional connection plays a vital role in the child’s identity, self-esteem, and psychological health.

Courts often encourage unmarried parents to practice co-parenting and avoid using the child as a tool for revenge or manipulation.

🛡️ 6. Protection from Discrimination and Harm

Under the Kenyan Constitution and Children Act, no child should suffer discrimination on the basis of:

• Parent’s marital status
• Parent’s income, tribe, religion, or nationality
• Whether the child was born in or out of marriage

Children are also entitled to protection from abuse, neglect, harmful cultural practices, and child labour.

📌 Conclusion: Equal Rights for Every Child

The rights of a child of unmarried parents in Kenya are protected by strong legal frameworks that emphasize equality, dignity, and non-discrimination. Whether you’re a single mother seeking support or a father wishing to be part of your child’s life, Kenyan law is on the side of the child — ensuring that their best interests are always the top priority.

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Disclaimer!

This article provides general information for educational purposes only and should not be construed as legal advice.