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Supreme CourtAllowedPetition 2 (E003) of 2022

MAK v RMAA & 4 others

Supreme Court of Kenya
24 February 2023
Philomena Mbete MwiluP.M MwiluMohammed Khadhar IbrahimM.K IbrahimSmokin Charles WanjalaS.C WanjalaNjoki Susanna NdunguNjoki NdunguWilliam OukoW. Ouko
10,178 words in judgment
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AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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Kenyan courts must independently decide child custody cases and cannot simply adopt foreign court rulings.

What this practically means

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The Supreme Court ruled that Kenyan courts must independently assess evidence in child custody cases, even when a foreign court has already made a decision. A Parental Responsibility Agreement (PRA) signed by parents and adopted by a Kenyan court remains binding until a Kenyan court formally ends it. The court also found that a parent's rights cannot be completely taken away without strong proof that they are unfit. The mother in this case was wrongly denied all contact with her child.

Executive summary

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This appeal arose from a protracted custody dispute between the appellant (mother) and the 1st respondent (father) over their son, born in 2004. The parties had entered into a Parental Responsibility Agreement (PRA) in 2008, which was later adopted as an order of the High Court. After the mother moved to the UK with the child, the UK Family Court made findings of physical abuse by the mother and issued orders including wardship and prohibiting direct contact. The mother then filed a constitutional petition in Kenya, which was dismissed by the High Court and affirmed by the Court of Appeal, both courts relying heavily on the UK court's findings. The Supreme Court allowed the appeal, holding that it had jurisdiction under Article 163(4)(a) because the case involved constitutional interpretation of Article 53 on children's rights. The Court found that the superior courts erred by deferring to the UK court's judgment without independently evaluating evidence or considering the binding Kenyan legal regime. Specifically, the PRA remained a binding order of the High Court as it had not been vacated under section 26(2) of the Children Act. The Court also held that parental rights and responsibilities cannot be extinguished without cogent evidence, which was lacking here, as medical reports showed no abuse and the UK court itself could not form a precise view. The Court set aside the Court of Appeal judgment, allowed the appeal, and ordered each party to bear their own costs, noting that the child had since turned 18 and was at liberty to choose contact with the mother.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction under article 163(4)(a) of the Constitution to hear and determine this appeal?
  2. 2.Whether the High Court and Court of Appeal properly applied the decisions issued by the Family Court in the United Kingdom in arriving at their determination?
  3. 3.What is the status of the PRA?
  4. 4.Whether parental rights and responsibilities could be extinguished in this case?

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear the appeal.

Holding

The Supreme Court has jurisdiction because the appeal raises questions of constitutional interpretation and application, specifically regarding Article 53 (rights of children) and the appellant's right to a fair hearing, which were canvassed in the superior courts.

Reasoning

The court applied the test from Rutongot Farm Ltd v Kenya Forest Service, asking whether the superior courts disposed of the matter after interpreting or applying the Constitution. The High Court and Court of Appeal both considered Article 53(2) on the best interests of the child, and the appellant consistently raised constitutional issues including fair hearing. Therefore, the appeal falls within Article 163(4)(a).

p. 15
02

Whether the High Court and Court of Appeal properly applied the decisions of the UK Family Court.

Holding

The superior courts erred by deferring to the UK court's judgment without independently evaluating the evidence or considering the binding Kenyan legal regime, including the PRA and the Constitution.

Reasoning

The UK court declared the PRA no longer reflective of the child's position without reference to Kenyan law, the Children Act, or the CRC. The superior courts adopted this finding without interrogating the status of the PRA, which had been adopted as an order of the High Court. The Supreme Court held that the UK court's orders did not supersede the PRA and that the superior courts should have applied section 26(2) of the Children Act, which requires a court order to terminate a PRA.

p. 16
03

What is the status of the Parental Responsibility Agreement (PRA)?

Holding

The PRA remained a binding order of the High Court until the child attained 18 years, as it had not been vacated in accordance with section 26(2) of the Children Act (repealed).

Reasoning

The PRA was voluntarily entered into and adopted as a court order by Muigai, J. The UK court's declaration that it was no longer reflective of the child's position was improper because it disregarded Kenyan sovereignty and the legal regime. The superior courts erred by accepting this declaration without requiring a formal application to vacate the PRA under section 26(2).

p. 18
04

Whether parental rights and responsibilities could be extinguished in this case.

Holding

Parental rights and responsibilities cannot be extinguished without cogent evidence proving the parent is unsuitable; the superior courts erred in extinguishing the appellant's rights based on insufficient evidence.

Reasoning

The court reviewed the evidence, including medical reports showing no physical abuse and an email from the 1st respondent praising the appellant's mothering. The UK court itself could not form a precise view of what happened. The superior courts did not test the evidence or consider the totality of circumstances. The court held that the child's right to parental care under Article 53(1)(e) and section 24(5) of the Children Act means parental responsibility is a mandatory ongoing obligation that can only be denied with valid grounds.

p. 21

Legal principles established

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  • A Parental Responsibility Agreement adopted as a Kenyan court order can only be terminated by a formal application to a Kenyan court.
  • Kenyan superior courts must independently evaluate evidence and apply Kenyan law rather than deferring to foreign judgments.
  • Parental rights under Article 53 of the Constitution cannot be extinguished without cogent evidence proving the parent is unsuitable.
  • The best interests of the child require balancing parental rights with welfare; supervised access should be considered before denying contact.
  • The Supreme Court has jurisdiction under Article 163(4)(a) when an appeal raises substantial questions of constitutional interpretation like Article 53.

Court orders

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  1. 1.The appeal is hereby allowed.
  2. 2.The Judgment of the Court of Appeal dated June 4, 2021 is hereby set aside.
  3. 3.Each party shall bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal E445 of 2020
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are therefore constrained to fault the learned judges of the Court of Appeal in placing credence on the findings of the family court in English Court which largely disregarded the PRA; an agreement that could not be violated without consequence.
p. 16 Deference to foreign judgments
Not being vacated, we are of the view that the PRA remained a binding order of the High Court until the child attained eighteen years of age.
p. 18 Status of Parental Responsibility Agreement
Accordingly, we do not find sufficient cogent evidence on record to lead to the finding that the appellant is an unfit mother liable to zero direct contact with the child.
p. 21 Extinguishment of parental rights
A child's best interests are of paramount importance in every matter concerning the child.
p. 19 Best interests of the child
It is evident that the running theme in both superior courts was the enforcement of parental rights vis a vis children's rights.
p. 15 Jurisdiction under Article 163(4)(a)

Key timeline

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2004
Child is born to the appellant (mother) and 1st respondent (father).
2008
Parties enter into a Parental Responsibility Agreement (PRA).
After 2008
PRA is adopted as an order of the High Court by Muigai, J.
Undated
Mother moves to the United Kingdom with the child.
Undated
UK Family Court finds physical abuse by mother, issues wardship, and prohibits direct contact.
Undated
Mother files a constitutional petition in the High Court of Kenya.
Undated
High Court dismisses the petition, relying heavily on the UK court's findings.
2021-06-04
Court of Appeal affirms the High Court decision.
2023
Supreme Court allows the appeal, setting aside the Court of Appeal judgment.

Practical implications

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For lawyers

Challenging Foreign Custody Orders

When a foreign court issues orders conflicting with a Kenyan court order like a PRA, argue that the Kenyan order remains binding until formally vacated under Kenyan law. The Supreme Court made clear that deference to foreign findings is not a substitute for independent judicial evaluation of evidence under the Children Act and Constitution.

For businesses

Cross-Border Employee Family Issues

For businesses with employees in cross-border family disputes, this ruling confirms that Kenyan court orders regarding parental responsibility are not easily overridden by foreign judgments. If an employee has a PRA or custody order in Kenya, it remains enforceable in Kenya regardless of foreign proceedings, impacting relocation and international assignment planning.

For individuals

Protecting Your Parental Rights

If you have a Parental Responsibility Agreement or custody order in Kenya, a foreign court cannot simply cancel it. The Supreme Court ruled that your parental rights cannot be taken away without strong evidence that you are unfit. If you are denied contact with your child, you have the right to a fair hearing in Kenya where the court must independently weigh the evidence.

Frequently asked questions

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Can a UK court cancel a Parental Responsibility Agreement made in Kenya?+

No. The Supreme Court ruled that a Parental Responsibility Agreement adopted as a Kenyan High Court order remains binding until a Kenyan court formally ends it. A foreign court cannot simply disregard it.

What does the FKA v FKO case mean for parental rights in Kenya?+

It means parental rights under Article 53 of the Constitution are strong. A court cannot completely cut off a parent's contact with their child without very strong, clear evidence that the parent is unfit. Supervised access should be tried first.

Can the Supreme Court of Kenya hear appeals on child custody cases?+

Yes, if the case involves the interpretation or application of the Constitution, specifically Article 53 on children's rights. The Supreme Court confirmed it has jurisdiction under Article 163(4)(a) for such constitutional questions.

What is a Parental Responsibility Agreement (PRA) in Kenya?+

A PRA is a voluntary agreement between parents that gives both of them full parental responsibility for their child. If adopted by a court, it becomes a binding court order that can only be ended by a formal application to the same court.

Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "MAK v RMAA & 4 others", Case Analysis (2023). Petition 2 (E003) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/21/eng@2023-03-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.