Both parents would now be required to take equal child-care responsibility for children born out of wedlock, Kenya High Court has ruled.
The court declared unconstitutional section of the law which allowed absentee Kenyan dads to either accept or decline to take responsibility for children they sired outside marriage.
While delivering the landmark ruling on Tuesday, March 12, Justice Jesse Njagi said the runaway fathers, also infamously referred to as deadbeat dads, must be consulted in case of adoption or when making any other parental decisions touching on the child.
“Parental responsibility is automatic and self-activating on parents upon the birth of a child. Fathers cannot have discretion of either rejecting or accepting that responsibility.
The automation of parental responsibility upon the birth of a child, and the responsibility is not left to the discretion of either the father or mother,” he ruled.
Njagi clarified Article 53 of the Children Act accorded parents equal parental responsibility and that unemployment on the side of the father does not negate the said responsibility. He declared unconstitutional, null and void, Section 2 (b) of the the Children Act which gave men room to decide whether to take responsibility for a child the sired outside wedlock or not.
According to the invalidated Section 2 (b), a father who did not contribute to the upbringing of a child of accept paternity of the child could not be recognised as the child’s father under the law and therefore cannot inherit his property.
“This violates the right of equal treatment before the law to children born out of wedlock. It is in the best interest of a child for the child to be recognised as a relative of his father’s relatives whether the parents are married or not,” the judge ruled.
Njagi was ruling on a case that was filed by Federation of Women Lawyers (FIDA) and a single mother of two who had sued man she claimed to be the father of her children and who declined to accept the children.
In 2014 HomaBay Mp Peter Kaluma proposed an amendment to the children’s Act to have men who sire children out of wedlock take part in parental responsibility of that child.