The recent passing of Betty Bayo has sparked public discussion on social media about the future of her children. Betty Bayo, who had children with Prophet Kanyari before later marrying Tash, leaves behind children whose custody is now a matter of legal concern. Prior to her death, the children were living with Betty Bayo and Tash, raising questions about who will now take primary responsibility for their care.
In Kenya, the welfare of the child is the primary concern. According to lawyer Danstan Omari, the Children Act (Cap 141), Section 34, provides clear guidance on the transmission of parental responsibility when a parent dies. Section 34(1) states that if a mother dies, the surviving biological father automatically inherits parental responsibility for the children. In the case of Betty Bayo, this means that Kanyari, as the biological father of two of her children, is legally entitled to assume custody, unless there is a dispute such as a need for DNA verification.
The law also allows for the appointment of a testamentary guardian, a guardian named in a parent’s will. If Betty Bayo had appointed such a guardian, that person could share custody with Kanyari. However, Kanyari has the right to object to the guardian’s appointment.
Step-parents and custody rights
Kanyari’s legal rights do not extinguish the claims of step-parents, but they do set clear boundaries. Tash, as Betty Bayo’s surviving husband, does not automatically gain custody of her children from a previous relationship. While he may petition for guardianship or foster care, the law recognises that these orders are subordinate to the rights of the biological father. Adoption is the only legal avenue through which Tash could gain the status of legal father for Kanyari’s children, but this requires the consent of the biological father, Kanyari.
Article 53 of the Constitution reinforces that a father retains parental rights regardless of marital status. The fact that Kanyari and Betty Bayo had divorced before her remarriage does not affect his rights as a father. These legal protections ensure that children maintain a relationship with their biological father unless he voluntarily relinquishes custody.
What the court considers
Lawyer Danstan Omari explains that when deciding custody, the court prioritises the child’s welfare. The focus is on whether the surviving parent or guardian can provide a safe and stable environment, rather than on public opinion about their behaviour. The court will examine:
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The surviving parent’s legal status as a biological parent
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Any history of abuse or neglect
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The child’s emotional and physical well-being
Public debate, social media commentary, or concerns about Kanyari’s personal behaviour do not legally prevent him from assuming custody if the law recognises him as the father.
Planning ahead to avoid disputes
Experts recommend that parents formalise guardianship arrangements through legal instruments such as wills or court orders. This ensures clarity for all parties and prevents disputes over the care of children in blended families.
Conclusion
The death of a parent is always a difficult time, but the law provides clear guidance to protect children. In the case of Betty Bayo, Kanyari is legally entitled to custody of his two children, while Tash or other parties may seek guardianship or foster care only through legal processes that respect the rights of the biological father. As lawyer Danstan Omari emphasises, the Children Act ensures that custody decisions prioritise the child’s welfare, stability, and family continuity above public opinion or social media debates.
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