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Children’s rights in Kenya are guaranteed in the Constitution of Kenya 2010. These
rights are also protected by a substantive and procedural statute: The Children’s Act
2022. However, the realization of these rights is impaired by various complexities, such
as the push and pull between private rights and state intervention in the family unit. The
right to child maintenance is similarly plagued. This study set out to identify and
analyse key theoretical concepts on the state’s responsibility towards child maintenance
and the legal framework governing it, interrogates the legal framework governing child
maintenance in Kenya, explore the existing barriers that hinder state realization of child
maintenance through a comparative analysis of South Africa and to come up with
recommendations based on these findings. In doing so, this thesis, therefore,
interrogates the nature and content of these rights and brings out the core obligations of
the state as well as the parents or guardians of a child. The research was based on the
assumption that child maintenance is a socio-economic right, and the barriers to their
enforcement, such as progressive realization and minimum core obligations, are also
stipulated. The right to child maintenance is reviewed in light of the best interests of
the child principle, the principle of subsidiarity, and the doctrine of private ordering. In
addition, this research explores the burden of child support in Kenya. The study further
investigates the relationship between the parents/guardians and the state concerning
child support. Finally, there is a review of child maintenance enforcement mechanisms
in which a comparison is made between judicial, administrative, and mixed systems for
child maintenance enforcement. Under each system, state obligations and public policy
measures are reviewed. This study adopted a doctrinal legal research methodology, also
called "black letter" methodology that focuses on the letter of the law rather than the
law in action as a means of synthesising legal facts. This study found that Kenyan laws
align with international instruments touching on child Maintenance. However, we noted
a difference in the enforcement mechanism. We also noted that both the state and the
parents play a crucial role in contributions toward child maintenance through a hybrid
system. Finally, family formation and poverty were the barriers identified during the
study. This study concludes that though parents’ primary responsibility for child
maintenance is vested, the state must come in when parents fail or cannot provide for
their children. The study recommends a review of the Children's Act 2022 to bring it in
line with constitutional principles to cover the obligations of the state in the
maintenance of children whose parents or primary caregivers are unable or unwilling
to do so and also the enactment of legislation to provide material support for those
children. The findings will add to the scholarly literature on child maintenance in
general and the scope of child maintenance in Kenya in particular. It is an increasingly
contentious but little-studied field in Kenya today |
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