'1. This Appeal arises from the Judgement and Decree of the Trial Court delivered on 2nd October 2023 by Hon. L.K. Sindani, Senior Resident Magistrate in Tononoka Children Case No. E028 of 2023.
2. The Trial Court entered Judgement and granted the following Orders:-
(a) Parental responsibility for the child, Louvyn, was transmitted to the Defendant; thus, he has responsibility for the said child.
(b) Legal custody of the minors is to be joint between the parties.
(c) Plaintiff to have physical/actual control of the minors and to continue residing with them in their matrimonial home.
(d) The Defendant to get daytime access to the children when personally available for them on alternate weekends with unlimited visitation right to their residence and in school but not to interfere with their education.
(e) Defendant to pay for school fees and school related expenses payable directly to the current school or a school mutually agreed by the parties while the Plaintiff to cater for school expenses not payable at school until when the children attain the highest attainable level of education.
(f) Defendant to give no less than Ksh. 15,000/- per month payable to the Plaintiff on or before 5th of every month as his share of contribution towards the children’s food and upkeep while the Plaintiff to supplement the same
(g) Children to remain covered on the Defendant’s medical cover and extra medical cost to be shared equally between the parties.
(h) Plaintiff to provide for house help, utility bills, and entertainment needs while with the children.
(i) Plaintiff to cater for clothing
(j) Each party to bear own costs.
3. The Appellant was the Defendant. Being aggrieved, preferred the following grounds in the Memorandum of Appeal dated.
(a) The Trial Court erred in law and fact by failing to take into consideration the Director of Children Services Report dated 27.9.2023 which recommended that the custody of the minors be issued to the Appellant.
(b) The Trial Court erred in law and fact by holding the Appellant responsible for not filing the social inquiry report in time which was beyond the Appellant’s power and control.
(c) The Trial Court erred in law and fact failing to consider or properly examine evidence and submissions of the Appellant.
(d) The Trial Court erred in law and fact in taking into account irrelevant issues and failing to take into account relevant issues.
4. The Respondent filed the suit vide the Plaint dated 20th January 2023 by which she sought reliefs materially as follows:-
(a) declaration for equal parental responsibility for the children.
(b) Actual or physical custody for the children to vest in the Plaintiff.
(c) Defendant to contribute Ksh. 38,883 per month f0r maintenance of the children.
(d) The defendant to pay school fees.
(e) Defendant to retain the children in his medical cover.
5. The Appellant opposed the suit and prayed that he be granted custody of the children. It was his stated case that the Appellant had fully maintained the minors since their birth.
6. During the trial, PW1, the Respondent testified that Tadicha was 8 years old, Malich was 6 years old and Munit was 1 year and 3 months old. She stayed with the children as the Appellant had left the house for Magongo.
7. It was her case that the Appellant did not provide for the children.
8. On cross examination, it was her case that she had left the house because the Appellant was abusive. That the Appellant did not come to see the children after he left the house.
9. DW1 was the Appellant. He testified as Defendant in the lower court case. It was his case that he stayed in Magongo but had a house in Utange where the Respondent stayed with the minors.
10. It was his stated case that the Respondent denied him access to the children.
11. Further, that the Respondent moved with the children as she wished and did not care about them.
12. It was his further case that the Respondent stayed in unsafe place prone to burglaries.
13. In cross examination, the Appellant stated that he took good care of the children. That he did not leave them with the neighbors.
14. I have considered the appeal and the rival submissions relied on by the parties. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
15. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
17. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
18. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. In my view, the trial magistrate considered all the relevant factors, including the age of the children, in particular the fact that only one child was above the tender years and the paramount interest of the best interest of the children. I understand Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. This position is enshrined in the Children’s Act in section 4 which provides for the welfare of the child. Section 8(1) of the Childrens Act of 2022 provides as follows:-
“8(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration.
20. In my reevaluation of the pleadings and evidence, the children herein are better off in the custody of the mother than their father, the Appellant. The Court of Appeal in JO v SAO [2016] eKLR stated thus:-
There is a plethora of decisions by this court as well as the High Court that in determining matters of custody of children and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother because mothers are best suitable to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new husband; where she is living in quarters that are in deplorable state; or where her conduct is disgraceful and/or immoral.
21. The principles on custody and maintenance of minors are also well anchored in the Convention on the rights of the child to which Kenya is a party. Under the UN Convention on the Rights of the Child (CRC) that Kenya ratified on 30 July 1990, Article 3 provides that:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
22. I therefore have no doubt that there are enough safeguards to guide this court in arriving at a finding founded on the welfare and best interest of the children in this case.
23. The Appellant failed to demonstrate how it may be said that the Respondent is unsettled and undeserving of having the custody of the minors herein.
24. I also note that the Respondent has not remarried, and the second ground for disqualification does not thus apply. The Respondent stays in the same house that was previously the matrimonial home. I am not convinced by the Appellant’s case that the neighbourhood is as bad as the effect on proper child bringing or to pose insecurity. No evidence was proffered to prove these allegations, and no cogent explanation was given to persuade this Court.
25. Inasmuch as the Respondent also alleged that the Appellant could walk naked and masturbate in the presence of the minors, I do not find any basis to hold this assertion as correct. The court is alive that the parties have since separated and are acrimonious and willing to lay allegations of whatever magnitude against each other but where no substance is given, no basis is shown for the court to believe such extreme allegation. I dismiss them.
26. In my re-evaluation, I am unable to agree with the Appellant that the best interest of the children would demand that the Respondent be denied actual custody of the children. The exceptional circumstances as earlier observed were not proved. As was held in Sospeter Ojaaamong vs. Lynette Amondi Otieno, Court of Appeal Number 175 of 2006:
“The exceptional circumstances would include if the mother is unsettled, has taken a new husband or her living quarters are in a deplorable state.”
27. The Appellant heavily dwelled his appeal on the report by the children officer. Unfortunately, the said report was not presented to the court in good time. In my view, the court had the duty to analyze the available evidence and render a decision as it did. I am equally not persuaded that the children officer’s report makes a case for displacement of the presumption in favours of the mother in respect of the custody of children of tender years.
28. Therefore, to this court, the welfare and best interest of the children in this case demands that they access quality education, health, nutrition, interaction, among other necessary child developmental parameters. In my view, the children, while in the custody of the Respondent are already sufficiently getting these necessities for their welfare and best interest. It would be in conjecture for this court to permit custody of the children to the Appellant as advised without full particulars as to their life afterwards.
29. On maintenance, in M.K. vs C.K.K HCA. 51/2015 the court held:-
“Parental responsibility is shared and not equal based on the financial position of each parent. The mother as the resident parent has a nurturing role to the children and the father to provide maintenance and upkeep of the children.
30. It is trite law that equal parental responsibility does not mean equal financial or other contribution as it was held in the case of E.M.M Vs M.O.O(2016)eKLR:-
“However equal responsibility does not mean equal and similar contribution as the income of each parent, and other non-monetary contribution must be borne in mind.”
31. The Appellant did not raise any found based on which it would be inferred that the trial court erred in any way in the manner it decided on the issue of maintenance. I understand parental responsibility to be a shared responsibility. Overall, the Trial Court apportioned both legal and actual custody equally to the parties herein and I find no basis to disturb its finding. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-
“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”
32. I have said enough to demonstrate that the appeal is devoid of merit.
33. In the upshot, the Appeal is dismissed with no order as costs.
Dated and signed at Mombasa, this 11th day of April 2025. Delivered virtually through Microsoft Teams.
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2. The Trial Court entered Judgement and granted the following Orders:-
(a) Parental responsibility for the child, Louvyn, was transmitted to the Defendant; thus, he has responsibility for the said child.
(b) Legal custody of the minors is to be joint between the parties.
(c) Plaintiff to have physical/actual control of the minors and to continue residing with them in their matrimonial home.
(d) The Defendant to get daytime access to the children when personally available for them on alternate weekends with unlimited visitation right to their residence and in school but not to interfere with their education.
(e) Defendant to pay for school fees and school related expenses payable directly to the current school or a school mutually agreed by the parties while the Plaintiff to cater for school expenses not payable at school until when the children attain the highest attainable level of education.
(f) Defendant to give no less than Ksh. 15,000/- per month payable to the Plaintiff on or before 5th of every month as his share of contribution towards the children’s food and upkeep while the Plaintiff to supplement the same
(g) Children to remain covered on the Defendant’s medical cover and extra medical cost to be shared equally between the parties.
(h) Plaintiff to provide for house help, utility bills, and entertainment needs while with the children.
(i) Plaintiff to cater for clothing
(j) Each party to bear own costs.
3. The Appellant was the Defendant. Being aggrieved, preferred the following grounds in the Memorandum of Appeal dated.
(a) The Trial Court erred in law and fact by failing to take into consideration the Director of Children Services Report dated 27.9.2023 which recommended that the custody of the minors be issued to the Appellant.
(b) The Trial Court erred in law and fact by holding the Appellant responsible for not filing the social inquiry report in time which was beyond the Appellant’s power and control.
(c) The Trial Court erred in law and fact failing to consider or properly examine evidence and submissions of the Appellant.
(d) The Trial Court erred in law and fact in taking into account irrelevant issues and failing to take into account relevant issues.
4. The Respondent filed the suit vide the Plaint dated 20th January 2023 by which she sought reliefs materially as follows:-
(a) declaration for equal parental responsibility for the children.
(b) Actual or physical custody for the children to vest in the Plaintiff.
(c) Defendant to contribute Ksh. 38,883 per month f0r maintenance of the children.
(d) The defendant to pay school fees.
(e) Defendant to retain the children in his medical cover.
5. The Appellant opposed the suit and prayed that he be granted custody of the children. It was his stated case that the Appellant had fully maintained the minors since their birth.
6. During the trial, PW1, the Respondent testified that Tadicha was 8 years old, Malich was 6 years old and Munit was 1 year and 3 months old. She stayed with the children as the Appellant had left the house for Magongo.
7. It was her case that the Appellant did not provide for the children.
8. On cross examination, it was her case that she had left the house because the Appellant was abusive. That the Appellant did not come to see the children after he left the house.
9. DW1 was the Appellant. He testified as Defendant in the lower court case. It was his case that he stayed in Magongo but had a house in Utange where the Respondent stayed with the minors.
10. It was his stated case that the Respondent denied him access to the children.
11. Further, that the Respondent moved with the children as she wished and did not care about them.
12. It was his further case that the Respondent stayed in unsafe place prone to burglaries.
13. In cross examination, the Appellant stated that he took good care of the children. That he did not leave them with the neighbors.
14. I have considered the appeal and the rival submissions relied on by the parties. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
15. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
17. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
18. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. In my view, the trial magistrate considered all the relevant factors, including the age of the children, in particular the fact that only one child was above the tender years and the paramount interest of the best interest of the children. I understand Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. This position is enshrined in the Children’s Act in section 4 which provides for the welfare of the child. Section 8(1) of the Childrens Act of 2022 provides as follows:-
“8(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration.
20. In my reevaluation of the pleadings and evidence, the children herein are better off in the custody of the mother than their father, the Appellant. The Court of Appeal in JO v SAO [2016] eKLR stated thus:-
There is a plethora of decisions by this court as well as the High Court that in determining matters of custody of children and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother because mothers are best suitable to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new husband; where she is living in quarters that are in deplorable state; or where her conduct is disgraceful and/or immoral.
21. The principles on custody and maintenance of minors are also well anchored in the Convention on the rights of the child to which Kenya is a party. Under the UN Convention on the Rights of the Child (CRC) that Kenya ratified on 30 July 1990, Article 3 provides that:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
22. I therefore have no doubt that there are enough safeguards to guide this court in arriving at a finding founded on the welfare and best interest of the children in this case.
23. The Appellant failed to demonstrate how it may be said that the Respondent is unsettled and undeserving of having the custody of the minors herein.
24. I also note that the Respondent has not remarried, and the second ground for disqualification does not thus apply. The Respondent stays in the same house that was previously the matrimonial home. I am not convinced by the Appellant’s case that the neighbourhood is as bad as the effect on proper child bringing or to pose insecurity. No evidence was proffered to prove these allegations, and no cogent explanation was given to persuade this Court.
25. Inasmuch as the Respondent also alleged that the Appellant could walk naked and masturbate in the presence of the minors, I do not find any basis to hold this assertion as correct. The court is alive that the parties have since separated and are acrimonious and willing to lay allegations of whatever magnitude against each other but where no substance is given, no basis is shown for the court to believe such extreme allegation. I dismiss them.
26. In my re-evaluation, I am unable to agree with the Appellant that the best interest of the children would demand that the Respondent be denied actual custody of the children. The exceptional circumstances as earlier observed were not proved. As was held in Sospeter Ojaaamong vs. Lynette Amondi Otieno, Court of Appeal Number 175 of 2006:
“The exceptional circumstances would include if the mother is unsettled, has taken a new husband or her living quarters are in a deplorable state.”
27. The Appellant heavily dwelled his appeal on the report by the children officer. Unfortunately, the said report was not presented to the court in good time. In my view, the court had the duty to analyze the available evidence and render a decision as it did. I am equally not persuaded that the children officer’s report makes a case for displacement of the presumption in favours of the mother in respect of the custody of children of tender years.
28. Therefore, to this court, the welfare and best interest of the children in this case demands that they access quality education, health, nutrition, interaction, among other necessary child developmental parameters. In my view, the children, while in the custody of the Respondent are already sufficiently getting these necessities for their welfare and best interest. It would be in conjecture for this court to permit custody of the children to the Appellant as advised without full particulars as to their life afterwards.
29. On maintenance, in M.K. vs C.K.K HCA. 51/2015 the court held:-
“Parental responsibility is shared and not equal based on the financial position of each parent. The mother as the resident parent has a nurturing role to the children and the father to provide maintenance and upkeep of the children.
30. It is trite law that equal parental responsibility does not mean equal financial or other contribution as it was held in the case of E.M.M Vs M.O.O(2016)eKLR:-
“However equal responsibility does not mean equal and similar contribution as the income of each parent, and other non-monetary contribution must be borne in mind.”
31. The Appellant did not raise any found based on which it would be inferred that the trial court erred in any way in the manner it decided on the issue of maintenance. I understand parental responsibility to be a shared responsibility. Overall, the Trial Court apportioned both legal and actual custody equally to the parties herein and I find no basis to disturb its finding. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-
“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”
32. I have said enough to demonstrate that the appeal is devoid of merit.
33. In the upshot, the Appeal is dismissed with no order as costs.
Dated and signed at Mombasa, this 11th day of April 2025. Delivered virtually through Microsoft Teams.
'