(Being an appeal arising from the Order issued on 26 th March, 2025 and Judgement delivered on 30 th April 2025 by Hon Douglas Ogoti (CM) in Bondo Children Case No.E012 of 2024)
1. The appeal arises from the Judgment and orders of the Honourable Douglas Ogoti delivered on 30 th April 2025 in Bondo Children Case No. E012 of 2024 wherein he made orders inter alia; that legal and active custody of the minors was granted to the Respondent; that the minors were to be handed over to the Respondent within four days and that in default of compliance, the Kenya Police Service and Children Protection Unit to trace the minors and hand them over to the Respondent; that the Appellant was to be responsible for school fees of the minors and incidentals such as fee structure, uniforms, books as per fee structure as well as transport, lunch, trips; that the Appellant to be responsible for medical insurance and incidentals thereto; that Appellant was to be responsible for clothing at a cost of Kshs 15,000/ bi-annually; that the Appellant to cater for accommodation/shelter at Kshs 15,000/ per month; that the Plaintiff (Respondent) to be responsible for food, house help, entertainment and other social activities; that the Appellant was granted access to the children on the second and last weekend of the month at a place to be agreed by the parties at his cost and to pick the children and stay with them for the first two weeks of the school holidays, starting with the next school holidays as shall be declared by the Ministry of Education, Government of Kenya; that each party to bear their own costs of the suit.
2. The Appellant herein was aggrieved and duly filed his Memorandum of Appeal dated 1 st May 2025 wherein he raised the following grounds of appeal namely; -
i) The learned magistrate erred in law and, in fact, by failing to set aside the ex-parte proceedings and hearing of 11 th March 2025 upon the Applicant’s application to give the Applicant an opportunity to cross-examine the Respondent and prosecute his defence.
ii) The learned magistrate erred in law and, in fact, by granting the Respondent sole legal and actual custody of the minors and entirely ignoring the fact that the children had been living and studying in Machakos, specifically Machakos Academy.
iii) The learned magistrate erred in law and, in fact, by admitting electronic records without an accompanying certificate of electronic evidence in contravention of section 106B of the Evidence Act.
iv) The learned magistrate erred in law and, in fact, by directing the Applicant to pay for the Respondent’s house rent starting from May 2025 at Kshs 15,000/=.
v) The learned magistrate erred in law and, in fact, by holding that the Respondent has a superior claim over the Applicant and is more suitable to take care of the children on account of her gender, thereby violating the principle of equal parental responsibility espoused in Article 53(e) of the Constitution of Kenya.
vi) The learned magistrate erred in law and, in fact, by holding that the Respondent has a superior claim over the Applicant and is more suitable to take care of the children on account of her gender, thereby violating the principle of equality and freedom from discrimination espoused in Article 27 of the Constitution of Kenya.
vii) The learned magistrate erred in law and, in fact, by adopting and grossly and blankly misapplying the Tender Years Doctrine without subjecting the same to the overriding principle of the best Interest of the child, thereby reaching an erroneous finding.
viii) The learned magistrate erred in law and, in fact, by not adequately analyzing and evaluating the evidence on record and by making a judgment and decree that is evidently and clearly biased against the Appellant without reckoning the best interest of the subject minors.
ix) The learned magistrate erred in law and, in fact, by misapprehending and failing to uphold the best interest of the subject minors as the paramount consideration when making the decree and judgement.
x) The learned magistrate erred in law and, in fact, by holding that only the Defendant shall be responsible for the medical insurance and incidentals thereto for the children, a holding that is brazenly averse to and violates the principles of the best interest of the child and equal parental responsibility.
xi) The learned magistrate erred in law and, in fact, by failing to consider the Appellant's submissions.
Reasons whereof, the Appellant prays that the ex-parte proceedings of 11 th March 2025 be set aside and the matter be remitted to the lower court for fresh hearing. The Appellant also prays in the alternative and without prejudice to the foregoing, the Judgment issued on 30 th March 2025 be set aside, and the same be entered in favour of the Appellant in the following terms:
(a) The Appellant be allowed to cater to the children's educational needs at Machakos Academy.
(b) Both the Appellant and the Respondent to have shared actual and legal custody of the children.
(c) The children to be covered under the medical schemes of both parties.
(d) Each party to meet the children's food, and shelter needs for the period they have custody.
The Cost of this appeal be provided for.
3. This being the first appellate Court; its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. The court will also have to take into account the fact that it neither heard nor saw the witnesses as they testified and must give due allowance for that. See Selle Vs Associated Motor Boat Co Ltd & Another [1968] EA 123.
4. The Respondent had lodged suit vide a plaint dated 2 nd December 2024 where it was pleaded that the minors herein are of tender age and that the Appellant herein had abdicated his parental responsibilities by refusing to pay and provide for upkeep and that the minors stand to suffer irreparable and substantial loss and damage. The Respondent therefore prayed for certain reliefs inter alia; that a permanent order for custody of the minors to issue in favour of the Guardian Ad Litem (Respondent); that an order for maintenance and payment of school fees to issue in favour of the Guardian Ad Litem; that an order of extension of parental responsibility when the minors attain the age of 19 years and costs of the suit.
5. The Appellant filed a statement of defence dated 25/3/2025 wherein he pleaded inter alia; that parental responsibility is shared; that he does not need any compulsion to care for the children; that he proposes that he be allowed to cater for the children’s education needs at Machakos Academy while both parties to have shared custody during school holidays and that the children to be covered under the medical schemes of both parties and finally that each party to meet the children’s food and shelter for the period they have custody/access. The Appellant prayed for the dismissal of the suit with costs.
6. The trial commenced in earnest on 11/4/2025.
7. Mariam Adhiambo Oruga (PW1) testified that she works as a nutritionist within the department of health Siaya County. That she adopted her statement dated 20/3/2025 as her evidence in chief. That she produced the documents in her list of documents as exhibits 1-7. That she also produced her replying affidavit dated 20/3/2025 as exhibit 8. That the three minors were then with the Appellant. That she had earlier been with the minors at her mother’s house over the holidays before the Appellant came and took them on 2/12/2024. That she had enrolled the children in school in Bondo in 2023 after she secured a job in Siaya County and that they had gone to visit her mother during the December holidays.
8. After the close of the Respondent’s case, the trial court proceeded to close the Appellant’s case as there was no appearance by him or his Advocate yet the hearing date had been fixed by consent. The trial court then reserved the matter for judgement on 30/4/2025.
9. The appeal was canvassed by way of written submissions. Both parties duly complied.
10. Vide submissions dated 19/1/2026, the Appellant gave a summary of the history of the matter up to the point the trial court arrived at the impugned judgement dated 30/4/2025. Learned counsel raised four issues for determination namely:
a) Whether the learned magistrate erred in law by proceeding Eparte while condemning the Appellant unheard.
b) Whether the learned magistrate misapplied the tender year’s doctrine and failed to uphold equal parental responsibility.
c) Whether joint legal and actual custody best serves the interests of the minors.
d) Whether the order compelling the Appellant to pay the Respondent’s rent was lawful and justified.
Principle/Legal Rule
11. It was submitted that the guiding principle on first appeal was enunciated in the locus classicus case of Mbogo v Shah [1968] EA 93 , wherein it was held that: “An appellate court will interfere where the lower court acted on wrong principles, misapprehended the facts, or arrived at a plainly wrong decision.”
12. As regards the first issue, it was submitted that the right to be heard is not merely a procedural entitlement; it is a constitutional command anchored in Article 50(1) of the Constitution, which guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing. Fairness, within the meaning of Article 50(1), necessarily includes the right to challenge and test adverse evidence, particularly through cross-examination where facts are contested.
Reliance was placed In Onyango Oloo v Attorney General [1986] eKLR where the Court of Appeal held in unequivocal terms: “A decision in breach of the rules of natural justice is not cured by the correctness of the decision.”
Learned counsel urged that the aforesaid holding establishes that compliance with the right to be heard is jurisdictional, not discretionary. Once a court proceeds to determine rights without affording a party a meaningful hearing, the resulting decision is rendered constitutionally infirm, irrespective of the court’s perception of the merits.
It was further submitted that the constitutional imperative is heightened, not diluted, in children matters by Article 53(2) of the Constitution, which provides that: “A child’s best interests are of paramount importance in every matter concerning the child.”
It was therefore submitted that a combined effect of Articles 50(1) and 53(2) is that a court determining a children’s dispute bears a dual obligation:
a) first, to conduct a procedurally fair hearing in which both parents are heard; and
b) second, to ensure that the ultimate decision on the child’s welfare is informed by all relevant, tested, and competing evidence.
A court cannot discharge the obligation under Article 53(2) while simultaneously violating Article 50(1).
13. The Appellant submits that the best interests of the child cannot be properly ascertained through a one-sided process. In Kiai Mbaki & 2 others v Gichuhi Macharia & another [2005] KECA 143 (KLR), the Court stated:
“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”
14. It was submitted that the right is rendered illusory where a parent is denied the opportunity to cross-examine the other parent on disputed matters touching on custody, care, suitability, and means. In children’s matters, such denial does not merely prejudice the excluded parent; it directly imperils the court’s ability to determine the child’s best interests. In SMM v ANK [2022] KEHC 1043 (KLR) , the High Court cautioned against mechanical application of the Tender Years Doctrine, holding that:
“However, it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. …its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases….. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.”
15. It was submitted that in the present case, the trial court proceeded to hear the matter ex parte on 11 th March 2025, declined to set aside those proceedings, and thereafter delivered final judgment on 30 th March 2025, notwithstanding that the Respondent’s affidavit evidence formed the sole evidentiary foundation for findings on custody, parental suitability, and maintenance. The Appellant was denied an opportunity to cross-examine the Respondent on highly contested factual issues, including actual custody, schooling arrangements, and financial capacity. That the denial aforesaid had a double constitutional consequence, firstly, by violating the Appellant’s right to a fair hearing under Article 50(1) and secondly, and more critically, it fatally undermined the court’s duty under Article 53(2) to determine the best interests of the children on the basis of a full, balanced, and tested evidentiary record. That the best-interest of the child determination reached through an unfair process is, by definition, constitutionally suspect.
16. It was therefore contended that the denial of cross-examination in the present case was not a curable procedural lapse but a fundamental constitutional defect. In line with binding Court of Appeal authority, the impugned judgment is vitiated in limine and cannot be salvaged by reference to discretion or perceived substantive correctness. That the only lawful course open to this Honourable Court is to set aside the judgment in its entirety.
17. As regards the second issue, it was submitted that Article 53(1)(e) of the Constitution provides that both parents have equal responsibility to care for and provide for the child, whether they are married to each other or not. This provision marked a deliberate constitutional departure from pre-2010 presumptions that privileged one parent, often the mother, over the other in matters of custody. The Constitution therefore displaces any presumption of parental superiority based on gender and requires courts to approach custody disputes from the standpoint of equality of parental status and obligation.
18. That the principle of equal parental responsibility does not merely concern financial provision; it encompasses care, control, decision-making, and presence in the child’s life. Legal custody speaks to authority over major decisions affecting the child, while actual (physical) custody concerns the child’s day-to-day living arrangements. Both are integral to the realization of Article 53 and cannot be curtailed except for compelling, evidence-based reasons.
19. In MOA v HAO [2021] KEHC 12577 (KLR) , the High Court articulated the correct constitutional approach in the following terms:
“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… Although parents may not have equal financial ability for the Court to demand equal contribution….. Children matters or needs should not be used to punish one parent at the comfort of another parent. To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty bound to contribute towards a child’s welfare.”
It was submitted that this holding is critical as it underscores that custody determinations are child-centric, not parent-centric, and that courts must resist the temptation to treat custody as vindication of one parent’s claim over the other. The inquiry must instead be directed at which arrangement best secures the child’s welfare while preserving the constitutional equality of parents.
Similarly, in SMM v ANK [2022] KEHC 1043 (KLR), the Court cautioned against mechanical reliance on the tender years doctrine and held:
“the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases.”
It was submitted that the import of this holding is that even where children are of tender years, custody cannot be determined through presumptions or generalizations but must be grounded in a contextual evaluation of the child’s lived reality, existing caregiving arrangements, and the capacity of
each parent to meet the child’s needs.
20. The Appellant’s counsel pointed out that the trial court made an erroneous holding namely awarding the sole custody based on tender years and gender that warrants this Honourable court’s interference. That this can be seen at page 218 of the record of appeal where the learned magistrate held as follows: “Given the tender age of the children, and the fact that they are best placed under the care of their mother, I do hereby grant the Plaintiff sole legal and actual custody of the minors.”
It was contended that the aforesaid holding is wrong both in law and in fact, and reflects a fundamental misdirection on the applicable constitutional, statutory, and evidential framework governing custody disputes as the learned magistrate treated the tender years doctrine as determinative, and maternal care as presumptively superior, without subjecting that doctrine to the controlling constitutional standard under Article 53(1)(e) of the Constitution, which provides that: “Every child has the right to parental care and protection, which includes equal responsibility of the mother and father…”
21. Learned counsel submitted that the above provision abolished any hierarchy between parents based on gender and that custody is therefore not to be determined by generalized assumptions regarding maternal suitability, but through a contextual, evidence-based inquiry grounded in equality and the child’s welfare.
22. Kenyan jurisprudence is settled that the tender years doctrine is not a rule of law, but merely a rebuttable rule of practice that must yield to constitutional imperatives as was held in SMM v ANK [2022] KEHC 1043 (KLR) . The High court further emphasized that “its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution”
It was submitted that the magistrate’s reasoning in the judgement contains no constitutional balancing whatsoever, as there is no engagement with Article 53, no consideration of equality of parents, and no explanation why maternal care should triumph all other relevant factors. That gender was treated as decisive and which constitutes a clear misdirection in law, justifying appellate interference.
23. As regards the third issue, it was submitted that the holding by the learned trial magistrate is equally flawed on the facts. That the record unequivocally shows that actual physical custody of the minors was with the Appellant at the time the suit was filed and when interim orders were issued. This is expressly acknowledged by the court itself in the Order of 4th December 2024, which directed that the “status quo be maintained” (Record of Appeal, p. 34). That the Appellant placed material and undisputed evidence before the court demonstrating inter alia; that the children were residing with him; that they were enrolled and attending school in Machakos as per the Admission letters (Record of Appeal, pp. 79–82) and that he was providing daily care, supervision and stability. That the judgment (Record of Appeal, p. 218) does not analyze this evidence at all. There is no discussion of continuity, stability, or the existing caregiving arrangement. That a court that ignores material evidence on record misapprehends the facts, thereby vitiating its exercise of discretion.
24. As regards the fourth issue, learned counsel urged the court to look at the Judgment (Record of Appeal, p. 219) where the learned magistrate further stated: “The Defendant shall have access to the minors at reasonable times as may be agreed between the parties, but custody shall remain with the Plaintiff.”
It was submitted that the above holding is legally indefensible as there is no finding anywhere in the judgment, express or implied, that the Appellant was unfit, neglectful, violent, or posed any risk to the minors. There is no analysis of parental suitability, no assessment of comparative caregiving capacity, and no evidential basis for excluding the Appellant from actual custody.
Reliance was placed in the case of MTKO v JMR (Civil Appeal E064 of 2023) [2025] KEHC 3681 (KLR), where the High Court articulated the governing principle as follows: “A child should not be removed from the primary care of his or her parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.”
Given the foregoing, it was submitted that the Appellant should not be denied shared custody, or relegated to access only unless there were compelling reasons supported by evidence showing that such limitation was in the best interests of the minors. It was contended that no such compelling reasons were identified anywhere else in the judgment and that by relegating the Appellant to access-only status without evidential justification, the magistrate effectively extinguished the Appellant’s constitutional status as an equal parent, contrary to Article 53(1)(e) of the constitution. Hence, the discretion exercised was therefore grounded on wrong principles, inviting appellate correction.
25. As regards the fifth issue, it was submitted that the trial court erred when it compelled the Appellant to pay rent for the Respondent when it ordered: “The Defendant shall pay the Plaintiff’s monthly house rent in the sum of Kshs 15,000/= with effect from May 2025.” (Record of Appeal, p.220). It was contended that this holding is wrong in law, unsupported by evidence, and ultra vires the Children Act. That section 94 of the Children Act obliges the court, before making a maintenance order, to consider inter alia; the income and means of both parents; their respective abilities to contribute; and the actual needs of the child. It was contended that the judgment contains no analysis whatsoever of the Respondent’s income, employment, earning capacity, or contribution. That the court did not interrogate whether the Respondent was able to meet housing costs wholly or in part, nor did it consider proportionality.
In SM v PEN (Civil Appeal 123 of 2019) [2024] KEHC 10169 , the Court held: “It is imperative for a court before making maintenance orders to inquire into the means of the party against whom the order is to be issued. It is clear from the record that this was not done and that the orders were made based on the calculations tabled before court by the Respondent…
The court made the award without any basis or enquiry into the appellant’s ability….”
It was thus submitted that the impugned rent order was therefore made without legal justification and warrants this Honourable Court’s interference.
26. As regards the sixth issue, it was submitted that the trial court seems to have converted child maintenance into spousal support in that housing the Respondent is not synonymous with maintaining the children. That the magistrate did not explain several issues inter alia; how the rent figure of Kshs 15,000/= was arrived at; how the housing related specifically to the children’s needs; or why shared housing responsibility was rejected. It was thus submitted that the order thus amounts to de facto spousal maintenance, which was neither pleaded nor legally justified in a children’s cause. That Kenyan law does not permit spousal support to be imposed under the guise of child maintenance. That taken together, the judgment demonstrate that the learned magistrate committed errors inter alia; elevated gender over constitutional equality; ignored material evidence of actual custody (Record p. 34, pp. 79–82); denied the Appellant parental status without findings of unfitness; and imposed financial obligations without statutory inquiry (Record p. 220).
27. It was therefore submitted that the issues squarely meet the appellate threshold for interference with discretion. As held by the Court of Appeal in Mbogo v Shah [1968] EA 93 : “An appellate court will interfere where the lower court acted on wrong principles, misapprehended the facts, or arrived at a plainly wrong decision.”
It was thus contended that all three thresholds are satisfied on the face of the trial court’s judgment. That the impugned findings on custody and maintenance cannot be cured by deference to discretion. They are constitutionally, statutorily, and jurisprudentially flawed and must be set aside and substituted with orders granting inter alia: joint legal and actual custody, or, in the alternative, a structured joint-custody arrangement; and shared, proportionate parental responsibility, without unlawful imposition of the Respondent’s rent on the Appellant.
28. The Appellant therefore prays that this Honourable Court be pleased to allow the appeal and grant orders inter alia; set aside in its entirety the judgment, findings, orders, and consequential directions of the trial court delivered herein; substitute the judgment and orders of the trial court with an order granting the Appellant and the Respondent joint legal custody and shared actual custody of the minors, structured as follows:
(i) The minors shall reside alternately with each parent on a shared residence basis, in accordance with a mutually agreed schedule, or in default thereof, a schedule to be settled by the court;
(ii) Each parent shall have equal decision-making authority in respect of the minors’ education, medical care, religious upbringing, and general welfare;
(iii) During the periods when the minors are residing with one parent, the other parent shall enjoy unrestricted and reasonable access, including defined weekend, school holiday, and public holiday access;
(iv) Each parent shall be responsible for the day-to-day maintenance and supervision of the minors during his or her respective custody periods, without prejudice to any lawful child maintenance obligations;
(v) The parties shall cooperate in good faith and communicate respectfully to facilitate smooth transitions, continuity of schooling, and emotional stability of the minors;
(vi) In the event of disagreement on the implementation of the shared custody arrangement, either party shall be at liberty to apply to the court for directions or variation in the best interests of the minors.
c) Vacate, discharge, and/or set aside the order compelling the Appellant to pay the Respondent’s rent and/or housing expenses, the same having been issued without sufficient legal or evidentiary basis.
d) Award the costs of this appeal to the Appellant, together with such further or other costs as this Honourable Court may deem just and equitable in the circumstances.
e) Grant such further, alternative, or consequential orders as this Honourable Court may consider appropriate in the interests of justice and the welfare of the minors.
29. The Respondent’s submissions are dated 2/2/2026. The Respondent’s counsel gave a brief history of the matter as lodged in the lower both at Machakos and Bondo before the same escalated to the high court. Learned counsel submitted on each of the Appellant’s grounds of appeal.
30 As regards the first ground of appeal, it was submitted that the Appellant's application seeking to set aside the proceedings was filed on 23rd April 2025, long after the hearing date had been taken by consent during pre-trial directions and after the Respondent had already testified. That the timing of the application, coming just days before the delivery of judgment scheduled for 30th April 2025, demonstrates that it was an afterthought intended to delay and obstruct the conclusion of the matter rather than to vindicate any genuine procedural grievance. That the trial Court correctly considered and rejected that application in its ruling delivered on 26th April 2025, observing as follows:
“Upon considering the Certificate of urgency, the Notice of Motion dated 22nd April 2025 and upon reading the affidavit of the Applicant dated on the even date and upon considering the annexures thereto, the court noted as follows:
1. There is a pre-trial order dated 19/04/2025 that gave case management directions on how the case was to proceed where parties participated in the identification of the impugned hearing date. The same has not been set aside. It is trite that a court cannot sit on appeal on its own orders.2. There are submissions filed by the Applicant on 15/04/2025, a day after the date counsel alleges was the misdiarized hearing date. This points to the fact that the current application was an afterthought.
3. The same is struck out.”
31. It was submitted that the Appellant had full knowledge of the hearing date, participated in pre-trial directions and even proceeded to file submissions thereafter. Having failed to attend Court without sufficient cause, he cannot now rely on his own default to allege breach of the right to be heard. It was thus submitted that the learned Magistrate properly exercised judicial discretion in declining to set aside the proceedings and this Honourable Court has no basis t
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1. The appeal arises from the Judgment and orders of the Honourable Douglas Ogoti delivered on 30 th April 2025 in Bondo Children Case No. E012 of 2024 wherein he made orders inter alia; that legal and active custody of the minors was granted to the Respondent; that the minors were to be handed over to the Respondent within four days and that in default of compliance, the Kenya Police Service and Children Protection Unit to trace the minors and hand them over to the Respondent; that the Appellant was to be responsible for school fees of the minors and incidentals such as fee structure, uniforms, books as per fee structure as well as transport, lunch, trips; that the Appellant to be responsible for medical insurance and incidentals thereto; that Appellant was to be responsible for clothing at a cost of Kshs 15,000/ bi-annually; that the Appellant to cater for accommodation/shelter at Kshs 15,000/ per month; that the Plaintiff (Respondent) to be responsible for food, house help, entertainment and other social activities; that the Appellant was granted access to the children on the second and last weekend of the month at a place to be agreed by the parties at his cost and to pick the children and stay with them for the first two weeks of the school holidays, starting with the next school holidays as shall be declared by the Ministry of Education, Government of Kenya; that each party to bear their own costs of the suit.
2. The Appellant herein was aggrieved and duly filed his Memorandum of Appeal dated 1 st May 2025 wherein he raised the following grounds of appeal namely; -
i) The learned magistrate erred in law and, in fact, by failing to set aside the ex-parte proceedings and hearing of 11 th March 2025 upon the Applicant’s application to give the Applicant an opportunity to cross-examine the Respondent and prosecute his defence.
ii) The learned magistrate erred in law and, in fact, by granting the Respondent sole legal and actual custody of the minors and entirely ignoring the fact that the children had been living and studying in Machakos, specifically Machakos Academy.
iii) The learned magistrate erred in law and, in fact, by admitting electronic records without an accompanying certificate of electronic evidence in contravention of section 106B of the Evidence Act.
iv) The learned magistrate erred in law and, in fact, by directing the Applicant to pay for the Respondent’s house rent starting from May 2025 at Kshs 15,000/=.
v) The learned magistrate erred in law and, in fact, by holding that the Respondent has a superior claim over the Applicant and is more suitable to take care of the children on account of her gender, thereby violating the principle of equal parental responsibility espoused in Article 53(e) of the Constitution of Kenya.
vi) The learned magistrate erred in law and, in fact, by holding that the Respondent has a superior claim over the Applicant and is more suitable to take care of the children on account of her gender, thereby violating the principle of equality and freedom from discrimination espoused in Article 27 of the Constitution of Kenya.
vii) The learned magistrate erred in law and, in fact, by adopting and grossly and blankly misapplying the Tender Years Doctrine without subjecting the same to the overriding principle of the best Interest of the child, thereby reaching an erroneous finding.
viii) The learned magistrate erred in law and, in fact, by not adequately analyzing and evaluating the evidence on record and by making a judgment and decree that is evidently and clearly biased against the Appellant without reckoning the best interest of the subject minors.
ix) The learned magistrate erred in law and, in fact, by misapprehending and failing to uphold the best interest of the subject minors as the paramount consideration when making the decree and judgement.
x) The learned magistrate erred in law and, in fact, by holding that only the Defendant shall be responsible for the medical insurance and incidentals thereto for the children, a holding that is brazenly averse to and violates the principles of the best interest of the child and equal parental responsibility.
xi) The learned magistrate erred in law and, in fact, by failing to consider the Appellant's submissions.
Reasons whereof, the Appellant prays that the ex-parte proceedings of 11 th March 2025 be set aside and the matter be remitted to the lower court for fresh hearing. The Appellant also prays in the alternative and without prejudice to the foregoing, the Judgment issued on 30 th March 2025 be set aside, and the same be entered in favour of the Appellant in the following terms:
(a) The Appellant be allowed to cater to the children's educational needs at Machakos Academy.
(b) Both the Appellant and the Respondent to have shared actual and legal custody of the children.
(c) The children to be covered under the medical schemes of both parties.
(d) Each party to meet the children's food, and shelter needs for the period they have custody.
The Cost of this appeal be provided for.
3. This being the first appellate Court; its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. The court will also have to take into account the fact that it neither heard nor saw the witnesses as they testified and must give due allowance for that. See Selle Vs Associated Motor Boat Co Ltd & Another [1968] EA 123.
4. The Respondent had lodged suit vide a plaint dated 2 nd December 2024 where it was pleaded that the minors herein are of tender age and that the Appellant herein had abdicated his parental responsibilities by refusing to pay and provide for upkeep and that the minors stand to suffer irreparable and substantial loss and damage. The Respondent therefore prayed for certain reliefs inter alia; that a permanent order for custody of the minors to issue in favour of the Guardian Ad Litem (Respondent); that an order for maintenance and payment of school fees to issue in favour of the Guardian Ad Litem; that an order of extension of parental responsibility when the minors attain the age of 19 years and costs of the suit.
5. The Appellant filed a statement of defence dated 25/3/2025 wherein he pleaded inter alia; that parental responsibility is shared; that he does not need any compulsion to care for the children; that he proposes that he be allowed to cater for the children’s education needs at Machakos Academy while both parties to have shared custody during school holidays and that the children to be covered under the medical schemes of both parties and finally that each party to meet the children’s food and shelter for the period they have custody/access. The Appellant prayed for the dismissal of the suit with costs.
6. The trial commenced in earnest on 11/4/2025.
7. Mariam Adhiambo Oruga (PW1) testified that she works as a nutritionist within the department of health Siaya County. That she adopted her statement dated 20/3/2025 as her evidence in chief. That she produced the documents in her list of documents as exhibits 1-7. That she also produced her replying affidavit dated 20/3/2025 as exhibit 8. That the three minors were then with the Appellant. That she had earlier been with the minors at her mother’s house over the holidays before the Appellant came and took them on 2/12/2024. That she had enrolled the children in school in Bondo in 2023 after she secured a job in Siaya County and that they had gone to visit her mother during the December holidays.
8. After the close of the Respondent’s case, the trial court proceeded to close the Appellant’s case as there was no appearance by him or his Advocate yet the hearing date had been fixed by consent. The trial court then reserved the matter for judgement on 30/4/2025.
9. The appeal was canvassed by way of written submissions. Both parties duly complied.
10. Vide submissions dated 19/1/2026, the Appellant gave a summary of the history of the matter up to the point the trial court arrived at the impugned judgement dated 30/4/2025. Learned counsel raised four issues for determination namely:
a) Whether the learned magistrate erred in law by proceeding Eparte while condemning the Appellant unheard.
b) Whether the learned magistrate misapplied the tender year’s doctrine and failed to uphold equal parental responsibility.
c) Whether joint legal and actual custody best serves the interests of the minors.
d) Whether the order compelling the Appellant to pay the Respondent’s rent was lawful and justified.
Principle/Legal Rule
11. It was submitted that the guiding principle on first appeal was enunciated in the locus classicus case of Mbogo v Shah [1968] EA 93 , wherein it was held that: “An appellate court will interfere where the lower court acted on wrong principles, misapprehended the facts, or arrived at a plainly wrong decision.”
12. As regards the first issue, it was submitted that the right to be heard is not merely a procedural entitlement; it is a constitutional command anchored in Article 50(1) of the Constitution, which guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing. Fairness, within the meaning of Article 50(1), necessarily includes the right to challenge and test adverse evidence, particularly through cross-examination where facts are contested.
Reliance was placed In Onyango Oloo v Attorney General [1986] eKLR where the Court of Appeal held in unequivocal terms: “A decision in breach of the rules of natural justice is not cured by the correctness of the decision.”
Learned counsel urged that the aforesaid holding establishes that compliance with the right to be heard is jurisdictional, not discretionary. Once a court proceeds to determine rights without affording a party a meaningful hearing, the resulting decision is rendered constitutionally infirm, irrespective of the court’s perception of the merits.
It was further submitted that the constitutional imperative is heightened, not diluted, in children matters by Article 53(2) of the Constitution, which provides that: “A child’s best interests are of paramount importance in every matter concerning the child.”
It was therefore submitted that a combined effect of Articles 50(1) and 53(2) is that a court determining a children’s dispute bears a dual obligation:
a) first, to conduct a procedurally fair hearing in which both parents are heard; and
b) second, to ensure that the ultimate decision on the child’s welfare is informed by all relevant, tested, and competing evidence.
A court cannot discharge the obligation under Article 53(2) while simultaneously violating Article 50(1).
13. The Appellant submits that the best interests of the child cannot be properly ascertained through a one-sided process. In Kiai Mbaki & 2 others v Gichuhi Macharia & another [2005] KECA 143 (KLR), the Court stated:
“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”
14. It was submitted that the right is rendered illusory where a parent is denied the opportunity to cross-examine the other parent on disputed matters touching on custody, care, suitability, and means. In children’s matters, such denial does not merely prejudice the excluded parent; it directly imperils the court’s ability to determine the child’s best interests. In SMM v ANK [2022] KEHC 1043 (KLR) , the High Court cautioned against mechanical application of the Tender Years Doctrine, holding that:
“However, it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. …its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases….. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.”
15. It was submitted that in the present case, the trial court proceeded to hear the matter ex parte on 11 th March 2025, declined to set aside those proceedings, and thereafter delivered final judgment on 30 th March 2025, notwithstanding that the Respondent’s affidavit evidence formed the sole evidentiary foundation for findings on custody, parental suitability, and maintenance. The Appellant was denied an opportunity to cross-examine the Respondent on highly contested factual issues, including actual custody, schooling arrangements, and financial capacity. That the denial aforesaid had a double constitutional consequence, firstly, by violating the Appellant’s right to a fair hearing under Article 50(1) and secondly, and more critically, it fatally undermined the court’s duty under Article 53(2) to determine the best interests of the children on the basis of a full, balanced, and tested evidentiary record. That the best-interest of the child determination reached through an unfair process is, by definition, constitutionally suspect.
16. It was therefore contended that the denial of cross-examination in the present case was not a curable procedural lapse but a fundamental constitutional defect. In line with binding Court of Appeal authority, the impugned judgment is vitiated in limine and cannot be salvaged by reference to discretion or perceived substantive correctness. That the only lawful course open to this Honourable Court is to set aside the judgment in its entirety.
17. As regards the second issue, it was submitted that Article 53(1)(e) of the Constitution provides that both parents have equal responsibility to care for and provide for the child, whether they are married to each other or not. This provision marked a deliberate constitutional departure from pre-2010 presumptions that privileged one parent, often the mother, over the other in matters of custody. The Constitution therefore displaces any presumption of parental superiority based on gender and requires courts to approach custody disputes from the standpoint of equality of parental status and obligation.
18. That the principle of equal parental responsibility does not merely concern financial provision; it encompasses care, control, decision-making, and presence in the child’s life. Legal custody speaks to authority over major decisions affecting the child, while actual (physical) custody concerns the child’s day-to-day living arrangements. Both are integral to the realization of Article 53 and cannot be curtailed except for compelling, evidence-based reasons.
19. In MOA v HAO [2021] KEHC 12577 (KLR) , the High Court articulated the correct constitutional approach in the following terms:
“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… Although parents may not have equal financial ability for the Court to demand equal contribution….. Children matters or needs should not be used to punish one parent at the comfort of another parent. To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty bound to contribute towards a child’s welfare.”
It was submitted that this holding is critical as it underscores that custody determinations are child-centric, not parent-centric, and that courts must resist the temptation to treat custody as vindication of one parent’s claim over the other. The inquiry must instead be directed at which arrangement best secures the child’s welfare while preserving the constitutional equality of parents.
Similarly, in SMM v ANK [2022] KEHC 1043 (KLR), the Court cautioned against mechanical reliance on the tender years doctrine and held:
“the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases.”
It was submitted that the import of this holding is that even where children are of tender years, custody cannot be determined through presumptions or generalizations but must be grounded in a contextual evaluation of the child’s lived reality, existing caregiving arrangements, and the capacity of
each parent to meet the child’s needs.
20. The Appellant’s counsel pointed out that the trial court made an erroneous holding namely awarding the sole custody based on tender years and gender that warrants this Honourable court’s interference. That this can be seen at page 218 of the record of appeal where the learned magistrate held as follows: “Given the tender age of the children, and the fact that they are best placed under the care of their mother, I do hereby grant the Plaintiff sole legal and actual custody of the minors.”
It was contended that the aforesaid holding is wrong both in law and in fact, and reflects a fundamental misdirection on the applicable constitutional, statutory, and evidential framework governing custody disputes as the learned magistrate treated the tender years doctrine as determinative, and maternal care as presumptively superior, without subjecting that doctrine to the controlling constitutional standard under Article 53(1)(e) of the Constitution, which provides that: “Every child has the right to parental care and protection, which includes equal responsibility of the mother and father…”
21. Learned counsel submitted that the above provision abolished any hierarchy between parents based on gender and that custody is therefore not to be determined by generalized assumptions regarding maternal suitability, but through a contextual, evidence-based inquiry grounded in equality and the child’s welfare.
22. Kenyan jurisprudence is settled that the tender years doctrine is not a rule of law, but merely a rebuttable rule of practice that must yield to constitutional imperatives as was held in SMM v ANK [2022] KEHC 1043 (KLR) . The High court further emphasized that “its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution”
It was submitted that the magistrate’s reasoning in the judgement contains no constitutional balancing whatsoever, as there is no engagement with Article 53, no consideration of equality of parents, and no explanation why maternal care should triumph all other relevant factors. That gender was treated as decisive and which constitutes a clear misdirection in law, justifying appellate interference.
23. As regards the third issue, it was submitted that the holding by the learned trial magistrate is equally flawed on the facts. That the record unequivocally shows that actual physical custody of the minors was with the Appellant at the time the suit was filed and when interim orders were issued. This is expressly acknowledged by the court itself in the Order of 4th December 2024, which directed that the “status quo be maintained” (Record of Appeal, p. 34). That the Appellant placed material and undisputed evidence before the court demonstrating inter alia; that the children were residing with him; that they were enrolled and attending school in Machakos as per the Admission letters (Record of Appeal, pp. 79–82) and that he was providing daily care, supervision and stability. That the judgment (Record of Appeal, p. 218) does not analyze this evidence at all. There is no discussion of continuity, stability, or the existing caregiving arrangement. That a court that ignores material evidence on record misapprehends the facts, thereby vitiating its exercise of discretion.
24. As regards the fourth issue, learned counsel urged the court to look at the Judgment (Record of Appeal, p. 219) where the learned magistrate further stated: “The Defendant shall have access to the minors at reasonable times as may be agreed between the parties, but custody shall remain with the Plaintiff.”
It was submitted that the above holding is legally indefensible as there is no finding anywhere in the judgment, express or implied, that the Appellant was unfit, neglectful, violent, or posed any risk to the minors. There is no analysis of parental suitability, no assessment of comparative caregiving capacity, and no evidential basis for excluding the Appellant from actual custody.
Reliance was placed in the case of MTKO v JMR (Civil Appeal E064 of 2023) [2025] KEHC 3681 (KLR), where the High Court articulated the governing principle as follows: “A child should not be removed from the primary care of his or her parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.”
Given the foregoing, it was submitted that the Appellant should not be denied shared custody, or relegated to access only unless there were compelling reasons supported by evidence showing that such limitation was in the best interests of the minors. It was contended that no such compelling reasons were identified anywhere else in the judgment and that by relegating the Appellant to access-only status without evidential justification, the magistrate effectively extinguished the Appellant’s constitutional status as an equal parent, contrary to Article 53(1)(e) of the constitution. Hence, the discretion exercised was therefore grounded on wrong principles, inviting appellate correction.
25. As regards the fifth issue, it was submitted that the trial court erred when it compelled the Appellant to pay rent for the Respondent when it ordered: “The Defendant shall pay the Plaintiff’s monthly house rent in the sum of Kshs 15,000/= with effect from May 2025.” (Record of Appeal, p.220). It was contended that this holding is wrong in law, unsupported by evidence, and ultra vires the Children Act. That section 94 of the Children Act obliges the court, before making a maintenance order, to consider inter alia; the income and means of both parents; their respective abilities to contribute; and the actual needs of the child. It was contended that the judgment contains no analysis whatsoever of the Respondent’s income, employment, earning capacity, or contribution. That the court did not interrogate whether the Respondent was able to meet housing costs wholly or in part, nor did it consider proportionality.
In SM v PEN (Civil Appeal 123 of 2019) [2024] KEHC 10169 , the Court held: “It is imperative for a court before making maintenance orders to inquire into the means of the party against whom the order is to be issued. It is clear from the record that this was not done and that the orders were made based on the calculations tabled before court by the Respondent…
The court made the award without any basis or enquiry into the appellant’s ability….”
It was thus submitted that the impugned rent order was therefore made without legal justification and warrants this Honourable Court’s interference.
26. As regards the sixth issue, it was submitted that the trial court seems to have converted child maintenance into spousal support in that housing the Respondent is not synonymous with maintaining the children. That the magistrate did not explain several issues inter alia; how the rent figure of Kshs 15,000/= was arrived at; how the housing related specifically to the children’s needs; or why shared housing responsibility was rejected. It was thus submitted that the order thus amounts to de facto spousal maintenance, which was neither pleaded nor legally justified in a children’s cause. That Kenyan law does not permit spousal support to be imposed under the guise of child maintenance. That taken together, the judgment demonstrate that the learned magistrate committed errors inter alia; elevated gender over constitutional equality; ignored material evidence of actual custody (Record p. 34, pp. 79–82); denied the Appellant parental status without findings of unfitness; and imposed financial obligations without statutory inquiry (Record p. 220).
27. It was therefore submitted that the issues squarely meet the appellate threshold for interference with discretion. As held by the Court of Appeal in Mbogo v Shah [1968] EA 93 : “An appellate court will interfere where the lower court acted on wrong principles, misapprehended the facts, or arrived at a plainly wrong decision.”
It was thus contended that all three thresholds are satisfied on the face of the trial court’s judgment. That the impugned findings on custody and maintenance cannot be cured by deference to discretion. They are constitutionally, statutorily, and jurisprudentially flawed and must be set aside and substituted with orders granting inter alia: joint legal and actual custody, or, in the alternative, a structured joint-custody arrangement; and shared, proportionate parental responsibility, without unlawful imposition of the Respondent’s rent on the Appellant.
28. The Appellant therefore prays that this Honourable Court be pleased to allow the appeal and grant orders inter alia; set aside in its entirety the judgment, findings, orders, and consequential directions of the trial court delivered herein; substitute the judgment and orders of the trial court with an order granting the Appellant and the Respondent joint legal custody and shared actual custody of the minors, structured as follows:
(i) The minors shall reside alternately with each parent on a shared residence basis, in accordance with a mutually agreed schedule, or in default thereof, a schedule to be settled by the court;
(ii) Each parent shall have equal decision-making authority in respect of the minors’ education, medical care, religious upbringing, and general welfare;
(iii) During the periods when the minors are residing with one parent, the other parent shall enjoy unrestricted and reasonable access, including defined weekend, school holiday, and public holiday access;
(iv) Each parent shall be responsible for the day-to-day maintenance and supervision of the minors during his or her respective custody periods, without prejudice to any lawful child maintenance obligations;
(v) The parties shall cooperate in good faith and communicate respectfully to facilitate smooth transitions, continuity of schooling, and emotional stability of the minors;
(vi) In the event of disagreement on the implementation of the shared custody arrangement, either party shall be at liberty to apply to the court for directions or variation in the best interests of the minors.
c) Vacate, discharge, and/or set aside the order compelling the Appellant to pay the Respondent’s rent and/or housing expenses, the same having been issued without sufficient legal or evidentiary basis.
d) Award the costs of this appeal to the Appellant, together with such further or other costs as this Honourable Court may deem just and equitable in the circumstances.
e) Grant such further, alternative, or consequential orders as this Honourable Court may consider appropriate in the interests of justice and the welfare of the minors.
29. The Respondent’s submissions are dated 2/2/2026. The Respondent’s counsel gave a brief history of the matter as lodged in the lower both at Machakos and Bondo before the same escalated to the high court. Learned counsel submitted on each of the Appellant’s grounds of appeal.
30 As regards the first ground of appeal, it was submitted that the Appellant's application seeking to set aside the proceedings was filed on 23rd April 2025, long after the hearing date had been taken by consent during pre-trial directions and after the Respondent had already testified. That the timing of the application, coming just days before the delivery of judgment scheduled for 30th April 2025, demonstrates that it was an afterthought intended to delay and obstruct the conclusion of the matter rather than to vindicate any genuine procedural grievance. That the trial Court correctly considered and rejected that application in its ruling delivered on 26th April 2025, observing as follows:
“Upon considering the Certificate of urgency, the Notice of Motion dated 22nd April 2025 and upon reading the affidavit of the Applicant dated on the even date and upon considering the annexures thereto, the court noted as follows:
1. There is a pre-trial order dated 19/04/2025 that gave case management directions on how the case was to proceed where parties participated in the identification of the impugned hearing date. The same has not been set aside. It is trite that a court cannot sit on appeal on its own orders.2. There are submissions filed by the Applicant on 15/04/2025, a day after the date counsel alleges was the misdiarized hearing date. This points to the fact that the current application was an afterthought.
3. The same is struck out.”
31. It was submitted that the Appellant had full knowledge of the hearing date, participated in pre-trial directions and even proceeded to file submissions thereafter. Having failed to attend Court without sufficient cause, he cannot now rely on his own default to allege breach of the right to be heard. It was thus submitted that the learned Magistrate properly exercised judicial discretion in declining to set aside the proceedings and this Honourable Court has no basis t
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