A child can inherit from foster father – Lawyer Melisa Achieng

A child can inherit from a foster father if paternity is acknowledged either expressly or through conduct, a legal expert has opined.

Advocate of the High Court of Kenya, Ms Melisa Achieng, in an interview with AVDelta News, said that in a scenario where a child is born before marriage and the mother later marries a different man, such a child can inherit from the foster father.

“Such a child can inherit from the man who later marries his or her mother if paternity is acknowledged either expressly or through conduct,” she said.

Ms Achieng added that under the Law of Succession Act and the Children Act, every child born within or outside marriage has equal inheritance rights once paternity is established.

“Marriage to the mother further strengthens that relationship legally,” she added.

Her comments followed a raging debate on social media regarding the late gospel artiste Betty Bayo’s children and whether they stood any chance of inheriting from their foster father.

Regarding child custody, Ms Achieng said custody and child support are governed by the Children Act, 2022.

The paramount consideration is always the best interests of the child, she said.

“Courts usually grant actual custody to the parent best placed to provide daily care--often the mother for young children--while the other parent enjoys reasonable access and is ordered to contribute to maintenance.

”She pointed out that child support is calculated based on each parent’s financial capacity and the child’s needs, such as covering school fees, medical care, housing, and general upkeep.

Ms Achieng said Kenyan law does not recognise “come-we-stay” relationships beyond six months unless registered as a customary or statutory marriage.

She added that unmarried partners therefore have limited rights, especially in property matters.However, courts sometimes apply constructive trust or resulting trust principles to prevent one partner from being unfairly enriched at the other’s expense, especially where there is proof of financial or substantial contribution, she observed.

“In such disputes, evidence of contribution – including receipts, witness statements, or joint accounts – is key,” said the legal expert.

It is worth noting that Kadhi’s courts apply Islamic law in matters of inheritance for Muslims.