BKR (Suing as Father and Next Friend to the Minors DCR & LKR) v FNM (Children's Case E119 of 2023) [2026] KEMC 255 (KLR)
The bottom line
#A Nakuru court gave a father physical custody of his young children, ruling that the children's stability matters more than the assumption mothers always win custody.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff (BKR) has proved that he should be granted legal, actual and physical custody of the minors.
- 2.Whether the Defendant (FNM), in her counterclaim, has proved that she is entitled to legal and actual physical custody of the minors.
- 3.Whether there exist exceptional circumstances to justify departing from the general principle that children of tender years should be in the custody of their mother.
- 4.What orders regarding access and parental responsibility should be made in the best interests of the minors.
- 5.Who should bear the costs of this suit.
Key legal issues
#Which parent should be granted legal, actual and physical custody of the minors
Legal custody jointly vested in both parents; actual and physical custody awarded to the Plaintiff as the current arrangement better serves the children's best interests.
The court applied Article 53(2) of the Constitution and Section 8(1) of the Children Act, 2022, which make the best interests of the child paramount. It considered the Khimilu guidelines, finding the minors had stability and continuity with the Plaintiff in Molo, that the Plaintiff had been the consistent day-to-day caregiver, that delegation to grandparents is acceptable in the African context absent harm, that the minor's views were nuanced, and that both parents were financially and morally capable. The status quo best promoted the minors' welfare.
Whether exceptional circumstances exist to depart from the tender years doctrine favouring maternal custody
Yes - the settled environment, continuity of care and absence of adverse evidence against the Plaintiff displaced the presumption.
The court held the tender years doctrine is no longer inflexible and yields to Article 53(2). Adopting a holistic, fact-sensitive inquiry, it found: (1) the minors are settled in a defined educational and social environment with the Plaintiff; (2) the Plaintiff has exercised primary and consistent care; (3) no evidence showed the Plaintiff unfit; and (4) sudden disruption would cause unnecessary instability to the minors' emotional and educational development.
Access and parental responsibility for the non-custodial parent
The Defendant granted reasonable, structured access, and both parents retain equal parental responsibility.
Under Article 53(1)(e) and Section 24(1) of the Children Act, 2022, parental responsibility is joint and continuous, and custody does not extinguish the non-custodial parent's role. There was no evidence the Defendant was unfit or that access would harm the minors. The court therefore ordered access during school holidays, alternate weekends where practicable, and unrestricted telephone communication, together with an order against interference with access.
Costs of the suit
Each party to bear their own costs, given the matter concerns children.
The court noted that in matters concerning children costs must be approached with caution, and family courts generally order that each party bear their own costs to avoid exacerbating familial conflict. Applying ZAK v MA and considering that both parties are parents of the minors, the court declined to award costs to either side notwithstanding the Plaintiff's success.
Legal principles established
#- The best interests of the child are paramount in every matter concerning a child, and the dispute is not about the competing rights of parents but the welfare of the minors.
- The tender years doctrine is persuasive but not a rigid or inflexible rule; it is subordinate to the constitutional best-interests principle under Article 53(2).
- A stable and well-functioning custodial arrangement may itself constitute an exceptional circumstance justifying departure from maternal custody for children of tender years.
- Custody does not extinguish the parental role of the non-custodial parent; the child's right to parental care by both parents is joint and continuous.
- In matters concerning children, it is appropriate that each party bears their own costs.
Court orders
#- 1.Legal custody of the minors, DCR and LKR, jointly vested in both parents, BKR and FNM.
- 2.Actual and physical custody of the minors awarded to the Plaintiff, BKR.
- 3.The Defendant, FNM, granted reasonable and structured access: on school holidays; alternate weekends where practicable with due regard to the minors' schooling and welfare; and unrestricted communication by telephone or other appropriate means at reasonable times.
- 4.Both parents to continue to exercise equal parental responsibility in accordance with Article 53(1)(e) of the Constitution and the Children Act.
- 5.The Plaintiff to continue providing for the minors' day-to-day needs, including education, shelter and upkeep.
- 6.Both parties to jointly cater for the minors' medical needs, including enrolling the minors in a suitable medical insurance scheme.
- 7.Each parent to ensure the minors maintain a good relationship with the other parent and not to interfere with or obstruct access.
- 8.Liberty to apply in the event of difficulty in implementing the orders or upon a change of circumstances affecting the welfare of the minors.
- 9.Each party to bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Children Act, 2022 and Article 53 of the Constitution of Kenya, 2010 (custody, care and control of minors)
Relief refused
#The Defendant's counterclaim for legal, actual and physical custody of the minors
The tender years presumption in favour of the mother was displaced by exceptional circumstances: the minors' settled environment and the Plaintiff's consistent primary care served their best interests.
Costs for either party
Matters concerning children require caution on costs; each party bears their own.
Costs
Given that this is a matter concerning the welfare of children, each party shall bear their own 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.
The import of these provisions is that the dispute before this Court is not about the competing rights of the parents, but about the welfare, development, and well-being of the minors.
the tender years doctrine, though persuasive, is not a rigid or infiexible rule of law.
Where children have settled in a particular environment and are well taken care of, that in itself may constitute an exceptional circumstance.
Custody, therefore, does not operate to extinguish or diminish the parental role of the non-custodial parent.
Legal custody of the minors, DCR and LKR, shall be jointly vested in both parents, namely BKR and FNM. However, actual and physical custody of the minors is hereby awarded to the Plaintifi, BKR.
Given that this is a matter concerning the welfare of children, each party shall bear their own costs.
Issues in the judgment
#The list of issues for determination contains duplicated/irregular numbering (two issues numbered '1' and items numbered up to '4' where five issues appear to be intended).
The judgment heading and coram do not state the case number, file number, or the exact court name; the court is identified only from the signature block and delivery at Nakuru.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BKR (Suing as Father and Next Friend to the Minors DCR & LKR) v FNM (Children's Case E119 of 2023) [2026] KEMC 255 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/255/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.