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What would make a court grant a child’s custody to their stepfather over their biological father after the death of their mother?
In 2024, the High Court in Bungoma ruled that two minors would remain in the physical custody of their late mother’s partner, a man with no biological ties to them, instead of their biological father.
The case highlights the growing tension between traditional interpretations of family law and the evolving reality of modern parenthood.
Marriage and separation
In his testimony, the biological father stated that he married the children’s mother on August 13, 2005, at Amagoro Church.
They lived together in various locations, starting with Kangemi in Nairobi from 2004 to 2007, then moving to Uthiru between 2007 and 2009.
In 2010, he relocated to Kocholia in Teso North within Busia County but continued to live with JEO in Amagoro.
However, in 2018, they separated, and the minors stayed with their mother. He testified that he regularly visited the children, supported them financially by paying their school fees, and took out medical insurance for them.
He also mentioned that he had purchased an education insurance policy for the minors, which was set to mature in August 2021.
After separation, their mother got involved with another man, MKC, and moved in together, raising the children as their stepfather.
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Mother’s death
The children, identified as ZAO and JIO, lost their mother in 2021. What followed was a fierce legal battle over who would raise them.
Their biological father, DOI, whom the mother had never legally divorced, went to court seeking full custody.
On paper, he had everything: a marriage certificate, the children's birth certificates listing him as their father, and an educational insurance plan set up in their names.
But in the courtroom, the children had the ultimate say over their future.
“The children testified that they did not know who the appellant was as they had not seen him before. Their preference was to be in the custody of the respondent,” the judgment reads.
The stepfather, MKC, had lived with the children and their mother for nearly a decade. He was not their biological father, but in the eyes of the children, he was dad.
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The Court’s Verdict
Justice D. Kemei acknowledged DOI's biological and legal ties to the children but made it clear that biology alone is not enough to uproot children from the only home they’ve known.
“It would be a travesty and an injustice to uproot the minors from the place they have known to be their home and be forced to go and live with the appellant,” the judge said.
While both men were given joint legal custody, the court granted physical custody solely to MKC, allowing the biological father only supervised day visits in Nairobi until the children become more familiar with him.
Each parent was assigned specific responsibilities: The biological father would provide medical cover and share school fees equally with their stepfather, who would continue to provide housing, food, and daily care.
A New Lens on Parenthood
The case sets a bold precedent in Kenya, where custody decisions often favour biological parents.
The court made it clear that “the best interests of the child”, a principle enshrined in Article 53 of the Constitution and Section 4 of the Children Act, must override parental claims rooted solely in biology or legal status.
What This Means
This judgment could open doors for other non-biological caregivers, stepparents, guardians, or even close relatives to seek recognition of their roles in children's lives, especially in blended families or cases where one parent is deceased or absent.
It also raises deeper questions. What defines a parent? Is it DNA, a name on a certificate, or years of bedtime stories, scraped knees, and school runs?
For ZAO and JIO, the answer is simple. As they begin a new chapter with the man who raised them, the law has finally caught up with their truth: family isn’t just about blood, it’s about being there.