High Court 5142 of 2026

4. The matter proceed by viva-voce evidence. Both the appellant and the respondent testified. The respondent confirmed that she was voluntarily relinquishing her parental rights and had no Objection to the application. 5. In the impugned judgment the trial Court observed that there was a glaring legal lacuna, as parliament was yet to legislate the relevant legislation notwithstanding a court decision in this regard in 2014 requiring that parliament provide for a legal framework to govern Surrogacy in Kenya. 6. As the court observed then Surrogacy is a reality in kenya and therefore pending the legislation it fell on Courts to provide a solution to parties such as the appellant who elected to extend their family in this manner. The court then proceeded to observe, correctly, that in the circumstances the Court would be guided by the best interests of the child as required by Article 53 of the Constitution of Kenya and Section 8 of the Children Act. Having laid this basis the Court then also weighed this against the ‘tender year principle’ and found that given the age of the Child, it was in the minor’s interest to be in the care of a mother and directed that the Child be handed over to the surrogate mother. Further that if the surrogate mother declined “suitable placement be found as the court ask’s parliament to ‘speak’ on the issue”. 7. The appeal was canvassed via written submissions the respondent did not participate in the appeal . In submissions dated 4th february 2026 the appellant submits that the decision of the trial Court was draconian, indifferent and not in the interests of the minor. It is urged that the Court in applying the tender year principle confined itself to the traditional gender roles and failed to appreciate in the circumstances if was in the best interests of the minor that the father be granted custody as opposed to placing the child in an institution. 8. Further it is Submitted that the court discriminated against the appellant who is male and single and this violates Article 27 ofthe Constitution. Analysis and Determination 9. Since this is the first appeal, this court is enjoined by the provisions of section 78 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya)to evaluate and examine the trial court’s record and the evidence presented before it in order to arrive at its own conclusion. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 where the Court of Appeal outlined the duties of a first appellate court as follows: [An appellate court] is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. 10. I have summarised the proceedings of the trial Court. The facts can be summarised as follows, the appellant, an American Citizen entered into a gestational surrogacy agreement with the respondent u Kenyan Citizen. After the birth of the Child with the consent of the respondent he proceeded to Court seeking the Conferment of parental rights and legal custody as an essential step to secure legal recognition of his relationship with the minor and enable him return to the USA with the minor. His application was denied by the Court on account of the ‘tender years’ principle. The court vested legal custody in the respondent. The respondent had earlier indicated that she had relinquished her parental rights, the consequence of the dismissal of the appellant’s prayer therefore was that the Child would https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5142/eng@2026-04-24 2

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be committed to an institution. It was not contested that the appellant is the biological father of the minor. 11. Having Considered the pleadings Submissions filed and the relevant I surmise the issues for determination to be:a. whether the appeal has merit? b. Arising from (a) above what it any are the consequential orders? The Article 53 of the Constitution requires that in all matters touching on Children the “ best interests” of the Child be the paramount consideration. The implication of the paramountcy principle on the application of the ‘tender years’ principle was well and conclusively articulated in the case of SMM v ANK [2022] KEHC 1043 (KLR) Where the court Stated – 76. 12. However, it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. This is not to say that the substance of the rule has dissipated completely; it is to say that its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases. The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child. In almost Similar circumstances except that the applicant was a mother the court in the case of Re Baby JLW (Minor) [2025] KEHC 5378 (KLR) observed as follows, (17) In evaluating the Child’s best interests, as mandated by the Constitution, it is crucial to consider the potential consequences of the Court denying the current application due to a lack of legislative framework. Considering the existence of an explicit agreement and the verification from both the Directorate of Children Services and the Adoption Agency that the surrogacy process, as well as the subsequent adoption application, are undertaken in good faith, and noting that there are no indications of circumstances that could jeopardize the Child’s welfare, this court prioritizes the Child’s well-being and hereby permits the adoption. This process will enable the biological parent to adopt the Child and thus acquire parental rights and responsibilities. 13. It is unfortunate that Kenya is yet to put in place the legislative framework that would govern surrogacy arrangements. Until then the responsibility will rest with the Courts to ensure that no person (male or female), (married or single) who desires to be a parent will be denied that right which technology has expanded. 14. There is nothing on record to show that the appellant poses any risk to the minor. In fact the the report of the Directorate of Children Services recommended that he be awarded legal custody. I am persuaded that it is in the the best interests of the child the appeal herein is allowed. 15. On account of the foregoing these are the final ordersa. The appeal is allowed in its entirety. b. The respondent is deemed to have relinquished her parental rights. c. The appellant is granted sole parental authority and legal custody in respect of the minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5142/eng@2026-04-24 3

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d. 16. The Registrar of persons is directed to issue the child with a birth certificate that reflects the appellant as the father of the Child. As the respondent did not participate or challenge the appeal there shall be no order as to costs. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF APRIL, 2026. P. M. NYAUNDI JUDGE In the presence of; Fardosa - Court Assistant. Ms. Nyabanda holding brief Gomba for the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5142/eng@2026-04-24 4

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