Court of Appeal Issues Precedent-Setting Decision in Child Relocation Disputes

Background
The matter arose from a custody and relocation dispute before the Children’s Court. While the Court determined matters relating to the custody of the children, it declined to grant permission to the Appellant to relocate with the children from Kenya to the United Kingdom. The Appellant’s appeal to the High Court against the judgment of the Children’s Court was dismissed. The Appellant lodged a further appeal to the Court of Appeal of Kenya. The Court of Appeal ultimately dismissed the Appellant’s appeal and upheld the decisions of the Children’s Court and the High Court.

At the core of the judgment was Article 53(2) of the Constitution of Kenya, which requires that the best interests of a child be of paramount importance in any decision. The Court emphasised that while parental rights such as movement, dignity, and family life are relevant, they do not and cannot override a child’s welfare.

The Court’s Findings
The Court cautioned against two common but opposing errors in relocation cases. On the one hand, it was held that the courts must avoid treating the primary caregiver’s preference as decisive, as this shifts focus away from the child. On the other hand, courts must not ignore the caregiver’s well-being and lived realities, as this risks reducing the caregiver, often a woman, to a passive bearer of caregiving responsibilities without regard to their dignity or practical constraints.

Against this backdrop, the Court laid down the following guiding principles to structure how courts should assess relocation applications.

1. No presumption for or against relocation
   A court must begin with the child’s welfare and not with the parental status or preference.
2. Evidential burden is on the relocating parent
   The applicant must provide a clear and practical relocation plan. This includes immigration status, housing, schooling, healthcare, and timelines. Courts will reject vague or speculative proposals.
3. Bona fides of the relocation proposal
   The Court should examine whether the move is made in good faith or intended to weaken the child’s relationship with the other parent.
4. Likely benefits of relocation for the child
   Courts should assess whether relocation improves the child’s life across education, health, safety, emotional well-being, and exposure.
5. Likely detriments of relocation for the child (substantive impact)
   Courts should consider disruption to the child’s routine, social environment, and relationship with the non-relocating parent.
6. Feasibility of preserving a meaningful relationship with the non-relocating parent (mitigation analysis)
   Any proposed contact arrangements with the left-behind parent must be realistic, affordable, and sustainable. Courts will not accept arrangements that exist only on paper.
7. Caregiving realities and gendered burdens
   Courts must consider how the decision affects the caregiver’s well-being and ability to parent.
8. Structured constitutional balancing and proportionality
   Courts must apply a structured balancing consistent with constitutional proportionality and explain how competing interests, including parental rights under Articles 27, 39, and 45 of the Constitution, have been weighed and why the chosen outcome best vindicates the child’s welfare within the constitutional context.
9. Flexibility and revisability of relocation decisions
   Since the decision to relocate is inherently dynamic and circumstances may evolve, the Court of Appeal held that relocation decisions are not cast in stone and a party has the liberty to apply if circumstances change.

Implications
This judgment sets a clear evidentiary and analytical standard. Relocation applications must be supported by concrete evidence and a practical, documented proposal, not stated intentions or speculation. Particular focus ought to be placed on workable contact arrangements for the non-relocating parent (including cost, frequency, and enforceability). The decision marks a shift away from broad judicial discretion toward structured reasoning, with courts now required to demonstrate how each principle has been assessed in arriving at a determination.

Therefore, relocation is not determined by what a parent wants but by what serves the best interests of the child. Primary caregiver status is relevant but not determinative; the court must assess the child’s overall circumstances, including relationships, stability, and future well-being.

The judgment is thus a significant development in Kenyan family law and will serve as the definitive reference point for relocation disputes across all levels of the judiciary.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Abbas Esmail or Georgina Amayo.

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Contributor

Alice Kamau – Principal Associate