The Meaning of Legal and Actual of a Minor under the Kenyan Law


In the family setting, the issue of child custody may come up where there is a divorce or where the parents of a child are unmarried. If a person is going through a divorce they would like to know if they will have primary custody and whether they will be entitled to have a say of how the child will be raised or whether there would be joint custody and decisions instead. In addition to the above, unless an individual has legal and actual custody of a minor, then they will not be allowed to remove the child out of the jurisdiction. Therefore, the issues of custody and visitation need to be resolved either through an agreement between the child’s parents or by a family court judge’s decision.

Joint Custody v Sole Custody

Joint custody is a form of child custody pursuant to which custody rights are awarded to both parents. Joint custody may refer to joint physical custody, joint legal custody, or both combined.  Parents can agree on joint custody, but there are times where a parent may want sole custody of children, for example, where a parent has never been involved in a child’s life, is unable to parent, or has moved out of the country or is unknown. If they fail to reach to an amicable solution, court will determine the suitable parent to give the custody in form of legal and actual custody. Sole custody will only be given in cases where the court determines that the other party is incapable or unfit to look after the child. In most cases, the court normally awards custody to the mother for she is considered best able to take care of very young children for they know their interests and needs. Where custody is bestowed on the mother, she is entitled to maintenance from the father until the child attains the age of majority.

In making such decisions the court is guided by Article 53 (2) of the Constitution which states that the welfare of the child is of paramount consideration in every matter and thus, court should consider which parent will be able to provide the best shelter, health, education and upbringing. In Karanu vs Karanu (1975) E.A 18, it was held that the first guiding principle provides that whenever the state, a court, a local authority or any person determines any question with respect to upbringing of the child, the child’s welfare shall be the paramount consideration and that is the position of the law.

Child as a Ward of the Court

In some instances when the parties are still battling in Court over custody, either party may make an Application seeking to have the Child made a Ward of the Court. The Simple meaning and effect of the order of making a child a ward of the court is that they are placed under the protection of the court and their status; physical and/or legal; was not to be disturbed, interfered with or altered in any manner except with the prior permission of the court. See the case of Marie Elizabeth & Another vs The Attorney General [2007]eKLR.

So What is the meaning of the Phrase “legal” and “actual” Custody

Section 81 (1) of the Children’s Act No. 8 of 2001 (hereinafter referred to as the Act) defines Custody with respect to a child to mean so much of the parental rights and duties as relating to the possession of the child as bestowed upon by a Court Order. The term “parental rights” is defined under section 23 (1) of the said Act and more specifically within the description of what “parental responsibility is.” The meaning of “parental responsibility” according to the said section refers to all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child. Therefore, where the Court issues a Custody Order to a parent or parents over a child, it means that the Court has bestowed upon them “parental responsibility” as defined in the Act.

 The Act continues to list the various rights that a parent has over a child in as far as “parental responsibility” is concerned. Section 23(2)(v) specifically states that a Parent has a right to arrange or restrict the emigration of the child from Kenya. The said section means that a parent with “parental responsibility” has the power to emigrate or to permanently remove a minor outside the jurisdiction of Kenya. 

This position was clarified in the case of, J.O. v R.M.M. Nakuru DC No.4/2004(2005) KLR, where the Court defined Actual and Legal Custody to include a right of a parent with parental rights over a child to determine the place and manner in which time is spent with the Child. In the said case,  Musinga J. stated as follows;

“….in regard to actual and legal custody: Actual custody is defined to mean the actual possession of the person of the child as opposed to legal custody which means as respects a child, so much of the parental rights and duties as relates to the person of the child including the place and manner in which time is spent.”


In conclusion, where Actual and Legal Custody Order is granted to an individual or to a parent; all the Parental responsibilities, duties and rights as enshrined under section 23(2) including the right to emigrate or permanently remove the child from the jurisdiction is vested on that parent/guardian. 

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