Court Rules Dowry‑Based Customs Cannot Block Fathers from Their Children

The Court of Appeal has ruled that families cannot use dowry‑related customs to keep a child away from a biological parent who is able and willing to provide care, saying a child’s right to be raised by a parent comes first.

In a judgment delivered at the Court of Appeal in Nyeri, the judges said parental rights, especially those of a surviving natural parent, cannot be displaced by cultural demands unless exceptional circumstances prove the parent is unfit.

Dowry Demands Rejected as Court Sides With Fit Biological Parent

The court was hearing an appeal arising from a custody dispute between a biological father and the child’s maternal grandparents following the death of the child’s mother shortly after birth.

The grandparents had taken custody of the child but later refused to release her to the father, insisting that cultural requirements, including the payment of dowry, had not been met.

Evidence before the court showed that the father had consistently expressed his desire to raise the child and had demonstrated his ability and commitment to do so.

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The father provided financial support, maintained contact with the child, and decided on her schooling and upbringing in a stable family environment. No evidence was presented that he posed any risk to the child or lacked the capacity to provide proper care.

The judges found that the grandparents’ refusal to hand over the child was largely driven by customary expectations rather than the welfare of the child.

They held that such practices could not override the Constitution or the best interests of the child.

Court  of Appeal  Places Child’s Right to Parental Care Above Custom

In its decision, the court emphasized that a child has a clear constitutional right to parental care and protection, and that right ranks above all other considerations.

While acknowledging that grandparents and extended family members may play an important role in a child’s life, the court stressed that the law gives priority to a biological parent who is willing and able to take full responsibility.

The court also made it clear that denying a child access to a fit parent amounts to a violation of both the parent’s rights and the child’s right to love, care, and guidance.

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Custody by non‑parents, the judges said, is only justified where there is proof of neglect, abuse, or inability on the part of the parent.

Although the grandparents had cared for the child following the mother’s death, the court ruled that prior care alone does not outweigh the legal and constitutional position that a natural parent comes first.

Dismissing the appeal, the Court of Appeal stated that cultural traditions, including dowry‑related demands, must give way when they conflict with the Constitution and a child’s welfare.

Keeping a child away from a capable parent based on custom, the court added, is not only unfair but unlawful.

It is not only morally wrong but unlawful to deny a parent custody of a living child who is willing and able to provide care, the court said, adding that there was “no reason why a child should be denied parental love and care.”