Dear Wakili,

My cousins are now adults, but grew up abandoned by their mother who remarried and started a new family. They never went to school while their mother’s new children did. At a recent family burial, she publicly denied being their mother in front of relatives. Do these adult children have any legal recourse for the emotional torture, neglect and loss of educational opportunity they suffered as children?

Dear Concerned Cousin,

The law is concise in expression yet fierce in protection, especially when children are its centerpiece. Article 53 of the Constitution is clear about this, and several other international statutes alongside regional instruments speak to this as well. The option to seek remedy for any misdeeds is an individual’s right. This can either be through the formal court system, or by applying the Alternative Justice System, as provided for in Articles 159 (2-c) of the Constitution. As for the courts, Article 22(1) of the Constitution grants every individual the right to sue for any interference with their wellbeing. This is significant because it directly addresses threats or infringements of the Bill of Rights. The case of PAN v EN (Civil Appeal 63 of 2019) confirms this right, where a child sued a parent for a poorly lived past.

Your cousins, therefore, have the constitutional right to take their mother to court, alleging that their present state of life, especially the struggles, stem from her past negligence. This claim must be supported by tangible evidence as demanded by Sections 107–109 of the Evidence Act. The law demands that the person makes an allegation to prove it. In a civil case scenario, the proof is based on a standard of probabilities.

A petition must demonstrate an understanding of the legal concept of capacity. At the time of the alleged wrongs, your cousins were minors and therefore required a “Next Friend” to represent them. They could argue that such representation was not possible then. In the case of David Mboche v Grace Gathoni (2011), the court held that children have no capacity to sue, and pleadings must reflect this fact. Failure to do so renders a suit incompetent. Equally important is the issue of timeliness. Under the Limitations of Actions Act, tort claims cannot be filed more than three years after the cause of action arose. To avoid dismissal, the petition should provide clear reasons for late filing, show that undue delay did not occur and demonstrate that the respondent will not suffer prejudice. These requirements are vital because equity operates under established maxims, including: Equity aids the vigilant, not the indolent, a wrong must have a remedy, and one who seeks equity must come with clean hands.

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Although limitation rules are strict, courts retain discretion to allow exceptions where strict application would cause injustice. The petition should invoke the Children’s Act and Civil Procedure Code retrospectively to show that the current wellbeing of the petitioners is directly linked to their mother’s past negligence. Articles 53(1)(e) and (2), together with Article 28 of the Constitution, mandate parental responsibility regardless of marital status, advance the best interest of the child principle and inherent human dignity. The petition must demonstrate that their mother’s failure to care for them partly injured their wellbeing foundationally.

If the court finds merit in the petition, two tortious wrongs may be pursued. Negligence – Establishing that the parent owed a duty of care, breached that duty, and caused harm. Intentional Infliction of Emotional Distress – demonstrating that deliberate actions by the parent resulted in psychological harm to the petitioners. Before awarding damages, however, the court must first confirm the respondent’s parental status, particularly since parentage has been publicly denied.

It is important for readers and others in similar circumstances to understand that parents generally do not owe obligations to children once they reach adulthood, unless special circumstances justify continued responsibility. This principle was clarified in the matter of JNT v JWO & Another (2019), where Justice Aggrey Muchelule ruled that a 23-year-old daughter was not entitled to maintenance. The court emphasised that exceptions apply only in cases of serious distress, disability, illness, or education among others that may have begun before the child turned 18. University fees, in that case, did not qualify as a special circumstance.

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