The High Court in Nairobi has upheld the principle of shared parental
responsibility, ruling that both parents must contribute fairly to the
upbringing and welfare of their children.
In a judgment delivered on December 5, 2025, Justice Helene Namisi partly
allowed an appeal by the father challenging maintenance orders issued by the
Children’s Court, while dismissing a cross-appeal by the mother seeking full
custody of their two children.
The case involved a separated couple, JNM and LGM, both medical
professionals, who are the biological parents of two minors aged six and five.
After their separation in November 2021, the dispute escalated into a
prolonged court battle over custody, access and financial responsibility.
The trial court had earlier granted joint legal custody, actual physical
custody to the mother, and ordered the father to pay school fees, transport
costs, medical cover and clothing.
The father appealed, arguing that the orders placed an unfair financial
burden on him despite both parents earning comparable incomes.
In her ruling, Justice Namisi emphasised that Article 53 of the Constitution
guarantees children the right to equal care and protection from both parents.
“Parental responsibility is shared and must be apportioned equitably, taking
into account the means and circumstances of each parent,” the judge stated.
The Judge also cited Article 53(1) which states that, “Every child has the
right to parental care and protection, which includes the equal responsibility
of the mother and father to provide for the child, whether they are married to
each other or not”.
The court noted that both parents earn similar monthly salaries and rejected
arrangements that effectively shifted nearly all monetary obligations to one
parent.
It found that the mother, who relocated with the children to Ongata Rongai,
should bear school transport costs as her contribution to the children’s
education, while the father continues to pay school fees and related expenses
directly to the school .
“The Appellant (JNM) shall pay the full school fees and school related
expenses, including lunch, activity fees and book fund, directly to the school
or service providers,” the judge ruled.
“The Respondent (LGM) shall pay for and organise the school transport for
the minors to and from school on a daily basis. The Appellant shall bear the
transport costs during his access period (picking and dropping the minors for
the weekends).”
The court clarified that “shared responsibility does not imply a 50:50
mathematical split, but a contribution proportionate to means”.
On custody, the court declined to apply the tender years’ doctrine
automatically, holding that it must give way to the constitutional requirement
of equality and the best interests of the child.
The judge maintained joint legal custody, granted physical custody to the
mother, and ordered that school holidays be shared equally on a 50–50 basis.
The parents will be required to agree on the specific dates seven days before
the closing of schools.
Further, they will have free access to the minors on alternate weekends from
Friday after school or at 4pm to Sunday at 4pm.
“The best interests of the child are served when both parents remain
actively involved, unless there is clear evidence to the contrary,” the court
ruled.
Each parent was also directed to provide clothing for the children during
their respective custody periods, and to maintain the children on their own
medical insurance.
The court ordered that each party bears their own costs of the appeal.
