JKP v KSC (Civil Appeal E223 of 2024) [2026] KECA 786 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a mother's bid to move her two children to the UK, setting out a nine-principle test courts will now use in relocation cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Does this court have jurisdiction to entertain the appeal under section 99 of the Children's Act, 2022, given that it is a second appeal and lies only on points of law?
- 2.If jurisdiction exists, did the High Court err in law in refusing relocation?
Key legal issues
#Jurisdiction of the Court of Appeal on a second appeal in a fact-intensive relocation dispute
Jurisdiction existed because the complaint was directed at the legal test, methodology and constitutional structure, not at facts.
Although relocation disputes are fact-intensive and concurrent findings of fact are not disturbed on second appeal, a dispute may still raise a question of law where the complaint targets the legal test applied or the constitutional structure disciplining discretion. The appellant's challenge to the High Court's unstructured welfare inquiry and the proper place of comparative guidance under article 53(2) constituted genuine questions of law sufficient to found jurisdiction.
Whether the High Court erred in law in refusing relocation
No error of law; the refusal was a proportionate, child-centred outcome supported by concurrent findings.
Applying the nine-principle framework, the court found no presumption either way; the relocation plan lacked concreteness on accommodation, schooling and caregiving; benefits were aspirational; detriments to settled routines and the paternal relationship were concrete; the mother's caregiving hardships were acknowledged but not shown to undermine her capacity to parent; proportionality favoured refusal on the material then before the courts, with liberty to apply afresh on material change.
The proper Kenyan framework for parental relocation disputes
A nine-principle relocation framework was articulated to discipline discretion without dictating outcomes.
The framework comprises: no presumption for or against relocation; evidential burden on the relocating parent; bona fides inquiry; assessment of likely benefits; assessment of likely detriments including impact on the non-relocating parent relationship; feasibility of preserving meaningful contact; caregiving realities assessed with a consciously feminist sensibility; structured constitutional proportionality balancing; and flexibility/revisability of relocation decisions. These principles are not a mechanical checklist but ensure transparent, child-centred reasoning consistent with article 53(2).
Legal principles established
#- There is no presumption either for or against relocation in Kenyan children matters; the court must begin and end with the child's welfare.
- The applicant parent bears the evidential burden of placing before the court a clear, coherent and concrete relocation plan, including immigration status, accommodation, schooling, healthcare and realistic timelines.
- The best interests of the child is a normative constitutional standard, not a mechanical or presumptive rule, and the tender years doctrine has given way to a child-centred inquiry.
- Parental rights and freedoms are relevant in children matters only to the extent they bear upon the child's welfare and form part of the constitutional setting in which best interests is determined.
- Relocation decisions are not immutable; courts may issue tailored orders and parties may apply afresh upon a material change of circumstances.
- On a second appeal the court confines itself to matters of law unless the decision below was reached on matters it should not have considered, omitted matters it should have considered, or is perverse.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
- 3.Appellant remains at liberty to apply afresh to the trial court for relocation upon a material change of circumstances
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held the second appeal raised a bona fide question of law on the applicable relocation framework, articulated a nine-principle Kenyan relocation framework under article 53(2) of the Constitution, applied it, and concluded the appeal should be dismissed with no order as to costs.
I glean the following as the Kenyan relocation framework, to be applied in children matters where a parent seeks to relocate a child out of the jurisdiction or to a place that would substantially disrupt existing parenting arrangementsp. 8
Wrote the judgment
Concurred fully with Ngugi JA. Added that first instance courts should as far as possible ascertain children's wishes; endorsed the global holistic evaluation approach and the requirement that parents' relocation plans be scrutinised for proportionality.
I have had the advantage of reading in draft the erudite judgment of my learned brother Joel Ngugi, JA with which I am in full agreement.p. 15
Wrote the judgment
Wholly endorsed the leading judgment and the relocation framework, adding comments on the flexibility and revocability of relocation decisions anchored in section 107 of the Children's Act and suggesting the Alternative Justice System as a route to revision.
I wholly endorse the comprehensive relocation framework worked out in the decision and make very limited comments regarding one principle; the fiexibility and revocability of relocation decisions.p. 18
- On appeal from
- High Court of Kenya
- Children's Appeal Case E059 of 2022
- Jurisdiction invoked
- Section 99 of the Children's Act, 2022 (second appeal lying on points of law only)
Relief refused
#Leave to permanently relocate the two minors with the appellant to the United Kingdom
The relocation plan was marked by material uncertainty; benefits were aspirational rather than demonstrated; detriments to the children's settled life in Kenya and relationship with the father were concrete and immediate
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would, accordingly, propose that the appeal be dismissed. In view of the family-law nature of this dispute, I propose that there be no order as to costs.
First, there is no presumption either for or against relocation. The court must begin and end with the child's welfare, not with parental status or parental preference.
Second, the applicant parent bears the evidential burden to place before the court a clear, coherent, and concrete relocation plan
A caregiver is not merely a vessel for parenting outcomes; they are a rights-bearing individual whose dignity, autonomy, and life chances matter
Relocation disputes are definitionally dynamic. A proposal that is speculative today may become concrete tomorrow.
In my view, therefore, the appeal raises a bona fide question of law suficient to found this court's jurisdiction. I, therefore, hold that this court has jurisdiction to entertain the appeal.
Issues in the judgment
#CitationTreatment ambiguity: Payne v Payne is relied on by both parties and is treated by the court as clarified comparative guidance rather than followed as a binding template
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JKP v KSC (Civil Appeal E223 of 2024) [2026] KECA 786 (KLR)", Case Analysis (2026). Second appeal from Nairobi Children's Court Civil Case No. E518 of 2021, via Children's Appeal Case E059 of 2022 (High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/786/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.