AM v CAO (Appeal E034 of 2025) [2026] KEHC 5142 (KLR) (24 April 2026) (Judgment)

AM v CAO (Appeal E034 of 2025) [2026] KEHC 5142 (KLR) (24 April 2026) (Judgment)

The best interests of the child override the tender years doctrine. The appellant, as the biological father, poses no risk to the minor, and the respondent has voluntarily relinquished parental rights. The absence of a legislative framework on surrogacy does not justify denying the appellant custody. The appeal is allowed, and the appellant is granted sole parental authority and legal custody.

Citation
[2026] KEHC 5142 (KLR)
Parties
Appellant: AM; Respondent: CAO
Court
High Court
Jurisdiction
Kenya
Judgment Date
24 April 2026
Case Number
Appeal E034 of 2025
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed
Legal Topics
Surrogacy, Parental Rights, Custody, Best Interests of the Child, Tender Years Doctrine, Discrimination
Source Language
English
Family Law Children Law Constitutional Law Surrogacy Parental Rights Custody Best Interests of the Child Tender Years Doctrine +1 more

Case Brief

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Parties

AM

Appellant

CAO

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the appellant is entitled to sole parental rights and custody of the minor born through surrogacy
  2. 2 Whether the trial court erred in applying the tender years principle over the best interests of the child
  3. 3 Whether the appellant was discriminated against on the basis of gender and marital status

Ratio Decidendi

The best interests of the child override the tender years doctrine. The appellant, as the biological father, poses no risk to the minor, and the respondent has voluntarily relinquished parental rights. The absence of a legislative framework on surrogacy does not justify denying the appellant custody. The appeal is allowed, and the appellant is granted sole parental authority and legal custody.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed in its entirety.
  • The respondent is deemed to have relinquished her parental rights.