Introduction
1. The trial Court delivered its judgment on 31st January 2024, vide which it vested the respondent with the actual physical custody of the minors.
2. Aggrieved with the decision, the appellant filed an appeal in this Court seeking to reverse the trial Court\'s findings.
The Memorandum of Appeal
3. The memorandum of appeal is dated 7th February 2024. It has nine grounds of appeal to wit:-
1. That the learned magistrate erred in law and fact by vesting the actual/physical custody in the respondent despite the incontrovertible evidence of the unsuitability of the respondent;
2. That the learned magistrate erred in law and fact by vesting the actual/physical custody in the respondent without considering the best interest of the subject minors;
3. That the learned magistrate erred in law and fact by relying on the evidence given by the respondent, which evidence was not sufficient;
4. That the learned magistrate erred in law and fact by disregarding the social inquiry report by the children officer which made the recommendations that the appellant was best suited to have the custody;
5. That the learned magistrate erred in law and fact by faulting and or claiming that the children’s officer’s report was not conclusive but went ahead to give her judgment, yet she had the powers to order for a further comprehensive report and or order that the children be produced before her for examination before going ahead to give her judgment;
6. That the learned magistrate erred in law and fact by vesting the custody upon the respondent, thereby disregarding the ascertainable wishes of the subject minors;
7. That the learned magistrate erred in law and fact by finding that the parties\' marital differences cannot affect the children, which finding was not based on law or any evidence, and by disregarding the common knowledge that when parents of a child have differences or are separated the effect of the same boils down to the children of the union;
8. That the learned magistrate erred in law and fact by disregarding the exceptional rules that warrant the denial of custody of children of tender years being given to the mother; and
9. That the trial magistrate erred in fact, in putting the interest of the respondent before those of the children contrary to the provisions of the Children Act, 2022.
4. The Appellant, therefore, urged that:-
(a) That the appeal be allowed and the orders of the trial Magistrate Hon LK Sindani (PM) given on 31st January 2024 be set aside and the actual/physical custody of the subject minor remain with the appellant with unlimited access to the respondent; and
(b) That costs of the appeal be granted to the appellant.
Duty of the first Appellant Court
5. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand.
6. 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.”
7. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Board Company and Others [1968]EA 123. In the said case the Court stated 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.”
8. 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…”
9. The issue that falls for this Court’s determination is whether the Trial Court erred in law and fact in its finding on the custody of the children herein. To decide the said issue I must consider the evidence adduced by the parties in the court below.
Evidence Adduced Before the Trial Court
10. The respondent, then the plaintiff, was the plaintiff Witness1 before the trial Court. She testified that she is a business lady engaged in selling fruits. She accused the appellant, then the defendant, of having been violent to her. She stated that she reported an incidence of violence. She further stated that the appellant works in Nakuru while the children reside at Mikindani with their paternal grandmother. She denied that she had an affair with a Mr Jeremiah. She prayed for custody of the children as they needed her. She also prayed for maintenance as per the plant.
11. When cross-examined by the appellant she stated that she left the matrimonial home after the appellant attacked her. She reported the alleged beating on 23rd November 2021. On the same day, she also went to hospital. She claimed that she went to the hospital after four days as she was looking for money. She admitted that the appellant provided for the family and was a good father to the children. She testified that she now has a house and can stay with the children.
12. The defence case was heard on 20th March 2024. In his testimony, the appellant, then the respondent, stated that he works as the Highway Operations Manager for Dreamline Company. He and the respondent, then the plaintiff, married in August 2010. Although they are still married, they separated on 19th November 2021. Their union was blessed with two issues, Prosper and Wisdom, then aged 6 and 10 years, respectively. He stated that the Respondent ran away from the matrimonial home, forcing him to organize for them to stay with his mother and cousin. He testified that the children were happy. It was his testimony that the Respondent is not a good parent as she had been having affairs with several men and was in a live-in relationship with a man who caused them to separate.
13. Mr. Avia further testified that he has a cousin who lives with his mother and could care for the children.
14. On cross-examination, he stated that the children live with his mother. He denied that the respondent had lived with the children. He denied knowing where the respondent lived. He stated that he had not remarried, nor did he have any intention of doing so. He accused Mr Jeremiah Robert of having caused their marital conflict. Regarding his residence, the Appellant testified that he was in the course of being transferred to Mombasa and was waiting for a signal to that effect.
15. The Defence Witness 2 was Bishop Haron Kilinge Kiriga. The said witness is a Pastor and Reverend in Liberation Faith Ministry. He testified that he knew the parties and their children. It was his evidence that the children were not in any danger. They were going to school and their Welfare is catered for.
16. When cross-examined, he testifies that he was not present during the confrontation between the parties. He attempted to reconcile the parties, but his efforts bore no fruit. He stated that the letter written “to whom it may concern” was done at the appellant\'s request but that its contents were from facts within his knowledge. Bishop Kiriga testified that he asked the respondent to step down from her church assignment.
Hearing of the Appeal
17. The appeal was canvassed through written submissions. I will set out the parties’ respective submissions below.
The Written Submissions of the Appellant
18. In his submissions, the appellant averred that the respondent eloped with Mr. Jeremiah Robert Sato, a church elder in the Liberation Faith Ministry, a congregation both parties attended. Upon eloping, the respondent abandoned the children, which forced him to seek the help of his mother. When his mother relocated to the rural home, he took the children to Nakuru. He enrolled them at Our Lady of Victory Academy, a school near his residence in Nakuru, where they had settled in well.
19. The appellant referred the Court to Article 53(2) of the Constitution and Section 8 of the Children Act for the proposition that the children\'s best interest must inform whatever decision this Court makes. I was also referred to Section 103(1) for the principles that I should use when making a decision on custody.
20. The appellant averred that only one child is of tender years. It was submitted that one child is 12 while the other is 8. I was referred to the cases of Githunguri vs Githunguri [1979]eKLR, Sospeter Ojaamong vs Lynette A Otieno, Civil Appeal No. 176 of 2006, and CN vs DMK [2020]eKLR for the proposition that where there are exceptional circumstances, a father could have custody of a child of tender years.
21. The appellant submitted that the respondent had no known income and relied on her boyfriend for upkeep. Regarding the respondent\'s domestic arrangement, he urged that she is unsettled and that if she lived with the children, they would be negatively impacted.
22. The appellant objected to the fact that the learned trial magistrate did not interview the children and also for rejecting the children officer’s report for, in her view, having been haphazardly done.
23. The appellant also submitted that having been with him since 2021, it would be unfair and not just to disturb the children’s living arrangements.
24. The appellant, therefore, urged that I allow the appeal as prayed in the memorandum of appeal dated 7th February 2024.
The Submissions of the Respondent
25. The respondent identified 9 issues coming up for determination. These issues reproduce the grounds of appeal, so I will not rehash them here.
26. The learned counsel for the respondent submitted that the learned trial magistrate did not err by vesting custody on the respondent. It was submitted that the trial Court relied on the tender age principle to grant custody to the respondent. Reference was made to the decision of the Courts in DK vs JKN [2011]eKLR, the Sospeter Ojaamong case (supra), and Martha Obiero & Another vs Jackson Obiero; CACA No 16 of 1979.
27. It was urged that there was no evidence supporting the allegation that the respondent had an affair with Mr. Saro or that the said affair, if true, would affect the minor children. It was urged that the respondent left the matrimonial home for her security. Counsel submitted that as the respondent had lived for the greater part of the children’s lives with them, she was the most suitable parent to live with them. The respondent further argued that what drove the appellant to file the appeal wasn’t the children’s best interest but his own.
28. The Respondent’s counsel submitted that it wasn’t true that the evidence tendered was insufficient to support the determination by the Court. It was urged that she demonstrated that she had been subjected to domestic violence, which made her leave the matrimonial home, and that it was in the best interest of the children to live with her, rather than with their grandmother.
29. Counsel submitted that the report filed by the children officer was not comprehensive as it did not meet the parameters set by the Court. In the circumstances, it was urged, relying on Nkube vs Nyamiro [1983]KLR 403 and Josphat Mailu Ndolo (suing on behalf of the estate of Antony Ndolo Mailu vs Director of Public Prosecutions & another [2020]eKLR, it was submitted that I should not interfere with the exercise of discretion by the trial Court.
30. The Respondent submitted that the children\'s officer failed to interview the children. Counsel submitted that, in view of the soured relationship between the parties, it was likely that the children would have been coached.
31. Regarding custody, it was urged that the Court made the right determination as it declined to be caught up in sideshows between the Appellant and the Respondent.
32. Counsel submitted that the trial magistrate did not err. The court did not put the respondent\'s interests above the children\'s. He urged that as one of the children was of tender age, the order that the trial Court made was just and appropriate in the circumstances. The Respondent thus urged that I dismiss the Appeal.
Analysis of the Facts and the Law
33. As this is an appeal on a decision of the children’s Court regarding custody of children. I must not only apply the principles applicable to first appeals but also do so with the rider that the best interest of the children concerned is paramount. The best interest principle is both a constitutional and statutory precept.
34. Article 53 (2) of the Constitutional provides that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
35. Section 8(1) to (3) of the Children Act, 2022 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—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.”
36. As the appellant is aggrieved by the findings of the trial Court it is necessary that I set out the governing principles. In Nkube vs Nyamiro [1983]KLR 403, the Court of Appeal stated that:-
“a Court on appeal will not normally interfere with the finding of fact by the trial Court unless it was based on no evidence, or the judge is shown demonstrably to have acted on wrong principle in reaching his conclusion.”
37. In the Josephat Malu Ndolo (supra), the Court of Appeal held that:-
“generally the Court ought not to interfere with the exercise of such discretion unless it is satisfied that the judge misdirection himself on such matters and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the judge was clearly wrong in me exercise of discretion and thereby occasioned injustice.”
38. In my view, the following issues call for my determination:-
i. Was the trial court right to grant custody to the Respondent$1
ii. Whether or not the Court ought to have ascertained the wishes of the children before making its decision$2
iii. Whether or not there were exceptional circumstances warranting the denial of custody of the children by the Respondent$3
iv. Was the Court right to disregard the report of the children\'s officer$4
39. The children the subject of this appeal are 12 and 8 years, respectively. One child is, therefore, of tender age. The general rule is that custody of children of tender age remains with the mother unless there are exceptional circumstances.
40. The Court of Appeal in Githunguri vs Githunguri [1979]eKLR held that:-
“As Reyburgh J said in Re S (an Infant) [1958] 1ALL ER, at 786 and 787, ‘I only say this, the prima facie rule (which is now quite settled) is that, other things being equal, children of this tender age should be with their mother, and where a Court gives custody of a child of this tender age to the father it is incumbent on it to make sure that there really are sufficient reasons to exclude the prima facie rule.”
41. In CN vs DMK [2020]eKLR, the Court considered what “everything being equal” meant. It was held that:-
“The issue that the Court must therefore ask and determine is whether “everything is equal”. If so, then the rule applies. If not, then the determination must tilt towards the interest of the child notwithstanding the age or gender… in effect, the age of the child is not the determinant factor when it comes to custody.”
42. In JO vs SAO [2016]eKLR. The Court of Appeal listed the circumstances under which a father may have custody of children of tender years as being.
“13. 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 suited 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. See SOSPETER OJAAMONG V LYNNETTE AMONDI OTIENO, Civil Appeal No. 175 of 2006, KARANU V KARANU [1975] E.A. 18, GITHUNGURI V GITHUNGURI [1979] eKLR.
14. Section 83 (1) of the Children Act outlines the principles to be applied in making custody orders. They include the ascertainable wishes of the child. But as Njagi, J. held in B. K. versus E.J.H. [2012] eKLR, “the test for the best interest of a child is not subjectively dictated by the selfish whims of a child. There has to be an element of objectivity. … a child’s wish to stay with a particular parent might not be in his best interest. In such a situation, his own preference may not be automatically allowed. The wishes and feelings of a child must therefore be treated with a lot of caution.”
43. I have perused the proceedings of the Court below. I note that although the appellant accused the respondent of having an affair with Mr Saro, the said accusation was not backed with evidence. The respondent and Mr Saro were officials of the church that the appellant and the respondent attended. It would, therefore, follow that they would communicate with each other from time to time. In my view, the mere fact that they communicated is not incriminating.
44. The foregoing is further buttressed by the finding in the impugned children officer’s report, which does not show that the respondent lived with a boyfriend.
45. Although one of the children is not of tender age, it is my view that it would not have been desirable for the Court to separate the children.
46. Should the Court have ascertained the wishes of the children prior to reaching its decision$5 In her judgment, the learned magistrate noted that the children\'s officer failed to interview the children or their teachers.
47. This Court takes note of the fact that ascertaining the wishes of children requires circumspection. Too often, parents in the custody of children coach them so that they can say what the particular parent wants them to say. In my view, the learned Magistrate had the discretion to decide whether or not to interview the children. Although I may not have made the same decision, it is my view that this cannot be a basis to overturn her decision.
48. I have already adverted to the issue of the existence of exceptional circumstances warranting giving custody of the minors to the father. In my view, there are none. There is no evidence that the respondent is unsettled or that she is an alcoholic. I haven’t found merit in the allegation that she was involved with Mr Saro.
49. The report of the children\'s officer is a guide. The trial Court was not bound by it. The Court noted the gaps in the report and opted not to apply the recommendations made therein. I cannot fault the Court for doing so.
50. The upshot of the foregoing is that the appeal has no merit. The same is for dismissal. Consequently the same is dismissed.
51. As this is a children\'s appeal each party shall bear own costs.
52. Orders accordingly.
Dated and signed at Mombasa this 27th day of August 2024. Delivered virtually via Microsoft TEAMS.
1. The trial Court delivered its judgment on 31st January 2024, vide which it vested the respondent with the actual physical custody of the minors.
2. Aggrieved with the decision, the appellant filed an appeal in this Court seeking to reverse the trial Court\'s findings.
The Memorandum of Appeal
3. The memorandum of appeal is dated 7th February 2024. It has nine grounds of appeal to wit:-
1. That the learned magistrate erred in law and fact by vesting the actual/physical custody in the respondent despite the incontrovertible evidence of the unsuitability of the respondent;
2. That the learned magistrate erred in law and fact by vesting the actual/physical custody in the respondent without considering the best interest of the subject minors;
3. That the learned magistrate erred in law and fact by relying on the evidence given by the respondent, which evidence was not sufficient;
4. That the learned magistrate erred in law and fact by disregarding the social inquiry report by the children officer which made the recommendations that the appellant was best suited to have the custody;
5. That the learned magistrate erred in law and fact by faulting and or claiming that the children’s officer’s report was not conclusive but went ahead to give her judgment, yet she had the powers to order for a further comprehensive report and or order that the children be produced before her for examination before going ahead to give her judgment;
6. That the learned magistrate erred in law and fact by vesting the custody upon the respondent, thereby disregarding the ascertainable wishes of the subject minors;
7. That the learned magistrate erred in law and fact by finding that the parties\' marital differences cannot affect the children, which finding was not based on law or any evidence, and by disregarding the common knowledge that when parents of a child have differences or are separated the effect of the same boils down to the children of the union;
8. That the learned magistrate erred in law and fact by disregarding the exceptional rules that warrant the denial of custody of children of tender years being given to the mother; and
9. That the trial magistrate erred in fact, in putting the interest of the respondent before those of the children contrary to the provisions of the Children Act, 2022.
4. The Appellant, therefore, urged that:-
(a) That the appeal be allowed and the orders of the trial Magistrate Hon LK Sindani (PM) given on 31st January 2024 be set aside and the actual/physical custody of the subject minor remain with the appellant with unlimited access to the respondent; and
(b) That costs of the appeal be granted to the appellant.
Duty of the first Appellant Court
5. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand.
6. 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.”
7. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Board Company and Others [1968]EA 123. In the said case the Court stated 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.”
8. 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…”
9. The issue that falls for this Court’s determination is whether the Trial Court erred in law and fact in its finding on the custody of the children herein. To decide the said issue I must consider the evidence adduced by the parties in the court below.
Evidence Adduced Before the Trial Court
10. The respondent, then the plaintiff, was the plaintiff Witness1 before the trial Court. She testified that she is a business lady engaged in selling fruits. She accused the appellant, then the defendant, of having been violent to her. She stated that she reported an incidence of violence. She further stated that the appellant works in Nakuru while the children reside at Mikindani with their paternal grandmother. She denied that she had an affair with a Mr Jeremiah. She prayed for custody of the children as they needed her. She also prayed for maintenance as per the plant.
11. When cross-examined by the appellant she stated that she left the matrimonial home after the appellant attacked her. She reported the alleged beating on 23rd November 2021. On the same day, she also went to hospital. She claimed that she went to the hospital after four days as she was looking for money. She admitted that the appellant provided for the family and was a good father to the children. She testified that she now has a house and can stay with the children.
12. The defence case was heard on 20th March 2024. In his testimony, the appellant, then the respondent, stated that he works as the Highway Operations Manager for Dreamline Company. He and the respondent, then the plaintiff, married in August 2010. Although they are still married, they separated on 19th November 2021. Their union was blessed with two issues, Prosper and Wisdom, then aged 6 and 10 years, respectively. He stated that the Respondent ran away from the matrimonial home, forcing him to organize for them to stay with his mother and cousin. He testified that the children were happy. It was his testimony that the Respondent is not a good parent as she had been having affairs with several men and was in a live-in relationship with a man who caused them to separate.
13. Mr. Avia further testified that he has a cousin who lives with his mother and could care for the children.
14. On cross-examination, he stated that the children live with his mother. He denied that the respondent had lived with the children. He denied knowing where the respondent lived. He stated that he had not remarried, nor did he have any intention of doing so. He accused Mr Jeremiah Robert of having caused their marital conflict. Regarding his residence, the Appellant testified that he was in the course of being transferred to Mombasa and was waiting for a signal to that effect.
15. The Defence Witness 2 was Bishop Haron Kilinge Kiriga. The said witness is a Pastor and Reverend in Liberation Faith Ministry. He testified that he knew the parties and their children. It was his evidence that the children were not in any danger. They were going to school and their Welfare is catered for.
16. When cross-examined, he testifies that he was not present during the confrontation between the parties. He attempted to reconcile the parties, but his efforts bore no fruit. He stated that the letter written “to whom it may concern” was done at the appellant\'s request but that its contents were from facts within his knowledge. Bishop Kiriga testified that he asked the respondent to step down from her church assignment.
Hearing of the Appeal
17. The appeal was canvassed through written submissions. I will set out the parties’ respective submissions below.
The Written Submissions of the Appellant
18. In his submissions, the appellant averred that the respondent eloped with Mr. Jeremiah Robert Sato, a church elder in the Liberation Faith Ministry, a congregation both parties attended. Upon eloping, the respondent abandoned the children, which forced him to seek the help of his mother. When his mother relocated to the rural home, he took the children to Nakuru. He enrolled them at Our Lady of Victory Academy, a school near his residence in Nakuru, where they had settled in well.
19. The appellant referred the Court to Article 53(2) of the Constitution and Section 8 of the Children Act for the proposition that the children\'s best interest must inform whatever decision this Court makes. I was also referred to Section 103(1) for the principles that I should use when making a decision on custody.
20. The appellant averred that only one child is of tender years. It was submitted that one child is 12 while the other is 8. I was referred to the cases of Githunguri vs Githunguri [1979]eKLR, Sospeter Ojaamong vs Lynette A Otieno, Civil Appeal No. 176 of 2006, and CN vs DMK [2020]eKLR for the proposition that where there are exceptional circumstances, a father could have custody of a child of tender years.
21. The appellant submitted that the respondent had no known income and relied on her boyfriend for upkeep. Regarding the respondent\'s domestic arrangement, he urged that she is unsettled and that if she lived with the children, they would be negatively impacted.
22. The appellant objected to the fact that the learned trial magistrate did not interview the children and also for rejecting the children officer’s report for, in her view, having been haphazardly done.
23. The appellant also submitted that having been with him since 2021, it would be unfair and not just to disturb the children’s living arrangements.
24. The appellant, therefore, urged that I allow the appeal as prayed in the memorandum of appeal dated 7th February 2024.
The Submissions of the Respondent
25. The respondent identified 9 issues coming up for determination. These issues reproduce the grounds of appeal, so I will not rehash them here.
26. The learned counsel for the respondent submitted that the learned trial magistrate did not err by vesting custody on the respondent. It was submitted that the trial Court relied on the tender age principle to grant custody to the respondent. Reference was made to the decision of the Courts in DK vs JKN [2011]eKLR, the Sospeter Ojaamong case (supra), and Martha Obiero & Another vs Jackson Obiero; CACA No 16 of 1979.
27. It was urged that there was no evidence supporting the allegation that the respondent had an affair with Mr. Saro or that the said affair, if true, would affect the minor children. It was urged that the respondent left the matrimonial home for her security. Counsel submitted that as the respondent had lived for the greater part of the children’s lives with them, she was the most suitable parent to live with them. The respondent further argued that what drove the appellant to file the appeal wasn’t the children’s best interest but his own.
28. The Respondent’s counsel submitted that it wasn’t true that the evidence tendered was insufficient to support the determination by the Court. It was urged that she demonstrated that she had been subjected to domestic violence, which made her leave the matrimonial home, and that it was in the best interest of the children to live with her, rather than with their grandmother.
29. Counsel submitted that the report filed by the children officer was not comprehensive as it did not meet the parameters set by the Court. In the circumstances, it was urged, relying on Nkube vs Nyamiro [1983]KLR 403 and Josphat Mailu Ndolo (suing on behalf of the estate of Antony Ndolo Mailu vs Director of Public Prosecutions & another [2020]eKLR, it was submitted that I should not interfere with the exercise of discretion by the trial Court.
30. The Respondent submitted that the children\'s officer failed to interview the children. Counsel submitted that, in view of the soured relationship between the parties, it was likely that the children would have been coached.
31. Regarding custody, it was urged that the Court made the right determination as it declined to be caught up in sideshows between the Appellant and the Respondent.
32. Counsel submitted that the trial magistrate did not err. The court did not put the respondent\'s interests above the children\'s. He urged that as one of the children was of tender age, the order that the trial Court made was just and appropriate in the circumstances. The Respondent thus urged that I dismiss the Appeal.
Analysis of the Facts and the Law
33. As this is an appeal on a decision of the children’s Court regarding custody of children. I must not only apply the principles applicable to first appeals but also do so with the rider that the best interest of the children concerned is paramount. The best interest principle is both a constitutional and statutory precept.
34. Article 53 (2) of the Constitutional provides that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
35. Section 8(1) to (3) of the Children Act, 2022 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—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.”
36. As the appellant is aggrieved by the findings of the trial Court it is necessary that I set out the governing principles. In Nkube vs Nyamiro [1983]KLR 403, the Court of Appeal stated that:-
“a Court on appeal will not normally interfere with the finding of fact by the trial Court unless it was based on no evidence, or the judge is shown demonstrably to have acted on wrong principle in reaching his conclusion.”
37. In the Josephat Malu Ndolo (supra), the Court of Appeal held that:-
“generally the Court ought not to interfere with the exercise of such discretion unless it is satisfied that the judge misdirection himself on such matters and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the judge was clearly wrong in me exercise of discretion and thereby occasioned injustice.”
38. In my view, the following issues call for my determination:-
i. Was the trial court right to grant custody to the Respondent$1
ii. Whether or not the Court ought to have ascertained the wishes of the children before making its decision$2
iii. Whether or not there were exceptional circumstances warranting the denial of custody of the children by the Respondent$3
iv. Was the Court right to disregard the report of the children\'s officer$4
39. The children the subject of this appeal are 12 and 8 years, respectively. One child is, therefore, of tender age. The general rule is that custody of children of tender age remains with the mother unless there are exceptional circumstances.
40. The Court of Appeal in Githunguri vs Githunguri [1979]eKLR held that:-
“As Reyburgh J said in Re S (an Infant) [1958] 1ALL ER, at 786 and 787, ‘I only say this, the prima facie rule (which is now quite settled) is that, other things being equal, children of this tender age should be with their mother, and where a Court gives custody of a child of this tender age to the father it is incumbent on it to make sure that there really are sufficient reasons to exclude the prima facie rule.”
41. In CN vs DMK [2020]eKLR, the Court considered what “everything being equal” meant. It was held that:-
“The issue that the Court must therefore ask and determine is whether “everything is equal”. If so, then the rule applies. If not, then the determination must tilt towards the interest of the child notwithstanding the age or gender… in effect, the age of the child is not the determinant factor when it comes to custody.”
42. In JO vs SAO [2016]eKLR. The Court of Appeal listed the circumstances under which a father may have custody of children of tender years as being.
“13. 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 suited 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. See SOSPETER OJAAMONG V LYNNETTE AMONDI OTIENO, Civil Appeal No. 175 of 2006, KARANU V KARANU [1975] E.A. 18, GITHUNGURI V GITHUNGURI [1979] eKLR.
14. Section 83 (1) of the Children Act outlines the principles to be applied in making custody orders. They include the ascertainable wishes of the child. But as Njagi, J. held in B. K. versus E.J.H. [2012] eKLR, “the test for the best interest of a child is not subjectively dictated by the selfish whims of a child. There has to be an element of objectivity. … a child’s wish to stay with a particular parent might not be in his best interest. In such a situation, his own preference may not be automatically allowed. The wishes and feelings of a child must therefore be treated with a lot of caution.”
43. I have perused the proceedings of the Court below. I note that although the appellant accused the respondent of having an affair with Mr Saro, the said accusation was not backed with evidence. The respondent and Mr Saro were officials of the church that the appellant and the respondent attended. It would, therefore, follow that they would communicate with each other from time to time. In my view, the mere fact that they communicated is not incriminating.
44. The foregoing is further buttressed by the finding in the impugned children officer’s report, which does not show that the respondent lived with a boyfriend.
45. Although one of the children is not of tender age, it is my view that it would not have been desirable for the Court to separate the children.
46. Should the Court have ascertained the wishes of the children prior to reaching its decision$5 In her judgment, the learned magistrate noted that the children\'s officer failed to interview the children or their teachers.
47. This Court takes note of the fact that ascertaining the wishes of children requires circumspection. Too often, parents in the custody of children coach them so that they can say what the particular parent wants them to say. In my view, the learned Magistrate had the discretion to decide whether or not to interview the children. Although I may not have made the same decision, it is my view that this cannot be a basis to overturn her decision.
48. I have already adverted to the issue of the existence of exceptional circumstances warranting giving custody of the minors to the father. In my view, there are none. There is no evidence that the respondent is unsettled or that she is an alcoholic. I haven’t found merit in the allegation that she was involved with Mr Saro.
49. The report of the children\'s officer is a guide. The trial Court was not bound by it. The Court noted the gaps in the report and opted not to apply the recommendations made therein. I cannot fault the Court for doing so.
50. The upshot of the foregoing is that the appeal has no merit. The same is for dismissal. Consequently the same is dismissed.
51. As this is a children\'s appeal each party shall bear own costs.
52. Orders accordingly.
Dated and signed at Mombasa this 27th day of August 2024. Delivered virtually via Microsoft TEAMS.