High Court ruling should make all deadbeat fathers very afraid

A father nurses his sick child. A recent court ruling has discouraged fathers from abandoning their children. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • In the past, many men have been cohabiting with women and then refusing to bear responsibility for any issues obtaining.
  • What will pain such deadbeat fathers most is that such children will have an automatic right to their property.

Were Kenyan men not so obsessed with handshakes, dams built on air and all matters corruption, they would be a very worried lot by now.

And if women were not busy fretting over fake imported sanitary pads and poor mothers giving birth in public parks, they would be celebrating a ground-breaking court ruling that will do more for women than achieving the elusive two-thirds gender rule.

However, everything has its own time and place, and maybe, just maybe, the ruling delivered by High Court judge Jesse Njagi earlier this week will create a precedent, and men will never again go around making babies and then nonchalantly walking away.

His finding that certain sections of the Children and Succession Acts are unconstitutional may not have, at face value, fully registered in the minds of many men, but if they had paused to examine its ramifications, they would have understood that it was addressing them individually.


If my understanding is correct, Justice Njagi effectively sealed the loopholes used by men to deny the paternity of children born out of wedlock, ruling that such children not only do have a right to bear their fathers’ name, they also have a right to inherit property.

In the past, many men have been cohabiting with women and then refusing to bear responsibility for any issues obtaining. As a result, women have had to nurse, shelter, clothe and educate such children on their own.

Unless the ruling is challenged in a higher court, what will pain such deadbeat fathers most is that such children will have an automatic right to their property.

A section of the Children Act 2017 gives the father the discretion to decide whether to acknowledge the child or not.


If he chooses not to, then the child remains illegitimate and disinherited. This, the judge ruled, is discriminatory and therefore unconstitutional.

It is also a nightmare for serial fornicators who have no qualms about abandoning both mother and child.

Unfortunately, there is a downside to this ruling, for it will not only open the floodgates to endless litigation, it will also raise the spectre that men fear most — extortion from gold-diggers.

After all, it is not as though, in this day and age, mature women do not have any idea of how to take care of their own bodies and decide whether to conceive or not, unless the pregnancy was truly accidental, which actually does happen now and then.

The other problem with the ruling is rather fundamental: Is it meant to be retroactive? Many men will be worried because their wriggle room has shrunk, and so they will want to know whether, if they sired a child, say, 30 years ago and their lovers then went ahead to marry someone else, they still bear a responsibility for the child who was accepted and brought up in that family.


Perhaps family lawyers should elucidate on this point. After all, if a mother has accepted and moved on, there should not be room for any sort of interference in the domestic affairs of her nuclear family by any outsider.

If the mother remained single, that is another issue altogether. A more comprehensive interpretation of this ruling would be quite helpful in this regard.

But on another note, it is quite obvious that this is one law that will favour the poor.

Most cases of grown “children” seeking justice have been lodged in situations where the father is wealthy and they want a slice of that wealth.

I have not heard of a court case in which a grown man wants to inherit anything from a pauper due to filial love. It doesn’t work that way in Kenya or anywhere else in the world.

* * * *

This is unsolicited advice to Transport minister James Macharia: Sir, there is a saying that it is always unwise to start a journey you cannot finish.

The idea of regulating fares charged by PSV operators is a non-starter, its universal appeal notwithstanding.

Should it perchance succeed, it would be wildly popular, for commuters have for long suffered from the greed of these operators. But it won’t, which is why it should be shelved permanently.

The Transport ministry has been singularly incapable of implementing any policy decision it moots. If it has failed to enforce the Michuki rules reintroduced with great fanfare just three months ago, who will police standardised fares countrywide?


Secondly, since as a country we long ago opted for unabashed capitalism, is it possible now to decide that market forces are inadequate to protect the poor?

Unless there are plans for subsidised travel, then the idea must have been conceived by people living in Cloud cuckoo land.

What could work is to persuade PSV saccos to keep fares within reasonable bound, rain or shine. In a free-market economy, placing caps on prices has never worked.

Do not confuse populist declarations with realistic policies. This nonsense has all the ingredients of the stillborn car-free days in Nairobi mooted by the same ministry in January.

Mr Ngwiri is a consultant editor; [email protected]