(Being an appeal from the judgment of Hon. K. Cheruiyot in Kisumu MCCHCC E056 of 2025 dated 25 th November, 2025)
Background
1. In the year 2018, the Appellant herein, J AO, met and married the Respondent herein, JOO, through Luo Customary law. Their union was blessed with one issue, PMO. The Appellant moved out of their Nairobi home in 2022 after getting a job in Kisii. She indicated that she would come to Nairobi once every two weeks to check on her family until January 2025, when she separated from the Respondent and left with the minor, PMO who was then in PP2 and a student at Thomas Burke Catholic School in Buruburu. The Appellant enrolled the minor to Fairmonts International School in Kisii.
2. In April 2025, the Respondent was granted custody of the minor with the Respondent having the minor during school days and the Appellant having the minor during the school holidays.
3. It is this order that the Appellant is challenging and seeking to have the minor during the school days and the Respondent can have access over the weekends in a structured way, and during the school holidays, the holiday can be shared.
Pleadings
4. In the pleadings files in the lower court the Plaintiff(now Respondent) had filed for the following orders:-
a. That the parties be granted joint custody of the minor with the Plaintiff having him during school days and the Defendant during holidays.
b. That the Plaintiff to care for the minor’s educational and medical needs.
c. Parties to care for the shelter needs when staying with the minor.
d. Costs of the suit be borne by both parties.
e. Any other relief that the court may deem fit .
5. The Respondent had opposed the claim and sought to retain custody of the minor, having had the custody since 31 st January 2025, when she left the Nairobi home. She stated that she had already enrolled the child to a school and had been paying the school fees for the new school which the child has settled well.
6. The Learned Trial Magistrate entered Judgment for the Plaintiff as sought in the plaint.
7. The Appellant herein aggrieved by the trial court's findings on the issue of the custody of the minor during school days and school holidays only, filed the instant appeal and listed the following grounds of appeal in the Memorandum of Appeal:-
a. The Learned Magistrate erred in law and in fact by failing to apply Article 53 (2) of the Constitution of Kenya and section 8 of the Children’s Act 2022, which require that the best interests of the child be the primary and paramount consideration in all matters concerning a child.
b. The Learned Magistrate erred in law by awarding physical custody of a minor aged six (6) years to the Respondent during school days without considering or applying the well-established tender years doctrine, and without demonstrating the existence of exceptional circumstances to justify separation of the minor from the mother.
c. The Learned Magistrate erred in law and fact by failing to consider that the minor had been continuously living with the Appellant in Kisii and schooling there, for about one (1) year prior to the delivery of the Judgment, during which period the Appellant had been the primary caregiver, thereby disrupting the child's settled environment and emotional stability.
d. The Learned Magistrate erred in law and fact by failing to adequately consider the Respondent's own evidence and pleadings indicating that he frequently travels, which materially affects his availability to provide consistent daily care, supervision, and emotional support to a school-going minor.
e. The Learned Magistrate erred in law by improperly exercising discretion in awarding school-term physical custody to the Respondent without sufficient reasons, analysis, or justification grounded in evidence or law.
f. The Learned Magistrate erred in law and fact by selectively evaluating the evidence on record and failing to conduct a holistic assessment of the child's welfare, stability, emotional needs, and continuity of care.
g. The decision of the Learned Magistrate is against the weight of the evidence on record and is likely to occasion emotional, psychological, and developmental harm to the minor.
h. The Learned Magistrate erred in law and fact by making a custody arrangement that is impractical, disruptive to the minor's schooling and routine, and inconsistent with the principle of stability and continuity in the upbringing of a child of tender years.
i. The Learned Magistrate erred in fact by stating that the minors in this case are 8 and 4 years while, the minor in this case was only one child of 6 years.
j. The learned Magistrate erred in Law and fact by stating that this case is easy as it was largely unopposed while the defendant filed her defence on 23rd May, 2025, gave evidence at the hearing opposing the Plaintiff and even filed her submissions in support of her evidence and defence on 13th November, 2025.
8. The appeal was canvassed by way of submissions. The Appellant was present in court on 19 th May 2026 when the matter came up for highlighting of submissions and highlighted. The Respondent was absent.
Appellant's Submissions
9. The Appellant submitted on the question of best interest of the child and the fact that the minor herein is of tender years 96 years) and therefore custody should ordinarily be with the mother.
10. Counsel submitted that Article 53(2) of the Constitution of Kenya provides that: “ A child's best interest is of paramount importance in every matter concerning the child." And that Section 83 (1) of the Children Act, 2022 states “In determining whether or not a custody order should be made in favour of the Applicant, the court shall have regard to-
a. The conduct and wishes of the parent or guardian of the child;
b. The ascertainable wishes of the relatives of the child;
c. The ascertainable wishes of any foster parent, or any person who has had actual custody of th e child and under whom the child has made his home in the last three years preceding the application
d. The ascertainable wishes of the child;
e. Whether the child has suffered any harm or is likely to suffer any harm if the order is not made
f. The customs of the community to which the child belongs;
g. The religious persuasion of the child;
h. Whether a care order, or a supervision order, or a personal protection order, or ancillary order has been made in relation to the child concerned and whether those orders remain i n force;
i. The circumstances of any sibling of the child concerned, and of any other children of the home if any;
j. The best interest of the child.
11. The Court cited the decision in NNM v PMN [2023] KEHC Children's Appeal Case E045 of 2023), the High Court emphasized that: "A child's best interests are of paramount importance in every matter concerning the child."
Respondent's Submissions
12. The Submissions stated that the doctrine of tender years is not cast on stone and that it can be waived depending on the circumstances. Counsel submitted that the custody orders were made after the court considered the evidence and circumstances and therefore this court should dismiss the Appeal.
Determination
14. As a first Appellant court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused by the Court of Appeal in the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Another (1968) EA 123 , my duty is to evaluate and re-examine the evidence adduced in the trial court in order to arrive at my own findings. Parties testified before the trial court and I have had an opportunity to review the evidence in the Lower Court File. The Appellate court will not normally interfere with a lower court's findings of fact unless the same is founded on wrong principles, misapprehension of evidence or based on no evidence. The Court of Appeal in the Selle case (supra) held thus:-
"A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion,''
15. From the testimony of the parties, the minor herein is aged 6 years and no doubt is a child of tender years. Again according to the parties, they lived together from when the minor was born until the 31 st January 2025, when the Appellant took him away and they proceeded to Kisii where she works. The Appellant remained with the minor until the orders of custody were issued by the Learned Trial Magistrate on 10 th April 2025.
16. I have considered the Record of Appeal and the parties’ respective written submissions, I note that the only issues that this court needs to determine are:
a) Whether the trial court considered the best interests of the minor before awarding custody to the respondent?
b) Whether the court properly applied the doctrine of tender years.
17. With regard to the issues, Article 53(2) of the Constitution of Kenya 2010 provides that:
'' A child's best interests are of paramount importance in every matter concerning the child.''
18. Although the best interest standard can be hard to define in some situations, some factors are common in ''best interest'' analyses in most custody situations. Section 83(1) of The Children Act lists the following factors to be critical in "best interest" analysis:-
1) Wishes of the child ( if old enough to capably express a reasonable preference);
2) Mental and physical health of parents;
3) Religion and/or cultural considerations;
4) Need for continuation of stable home environment;
5) Support and opportunity for interaction with members of extended family of either parent;
6) Adjustment to school and community;
7) Age and sex of child;
8) Parent use of excessive discipline or emotional abuse; and
9) Evidence of parental drug, alcohol or sex abuse.
19. In Sospeter Ojaamong vs Lynnette Amondi Otieno Court of Appeal Civil Appeal No. 175 of 2006 the court held:-
'' The principles that guide the court in custody of children are that except where exceptional circumstances exist, the custody of such children be awarded to the mother, because mothers are generally best suited to exercise care and control of the children.''
The exceptional circumstances would include if the mother is unsettled, has taken a new husband or her living quarters are in a deplorable state.''
20. In the instant case it is undisputed that the mother of the minor is properly settled and works at Kisii. In fact, she took the child and immediately enrolled the minor to school and paid school fees. There is no allegation that she is unsettled or is living in conditions that would not be conducive for the minor. She was therefore a suitable mother to have the custody of the child.
21. Secondly, at the time the minor left Nairobi, he was 6 years old. Clearly the minor was a child of tender years within the meaning of the Children Act in view of his age. No evidence was brought before the trial court to show that the Respondent was an unfit mother, I find that the trial court failed to appreciate the age of the minor and failed to appreciate that at this tender age, the nurturing and care of a mother would greatly shape a child.
22. So that even going by those two reasons, my finding would be that the trial court had misdirected itself on the doctrine of tender years and failed to appreciate that it would have been in the best interest of the child to have the mother retain the minor.
23. On the issue of access, there appears to be no opposition to a structured manner of access. Again the structured access is to the best interest of the child, to ensure that the minor continues with his education uninterrupted and is not unnecessarily fatigued by being shuffled from Nairobi to Kisii to Kisumu. In the Appellants highlighting of the submissions, she suggested that there could be structured access during school days and the Respondent can have access during the holidays. Taking cue from the Appellant's suggestion, I will partly allow the Appeal and consequently make the following final order:
1. The parties are granted joint custody of the minor with the Appellant having him during the school term and the last week of school holidays and the Respondent having him during the first weeks of School Holidays.
2. The Respondent shall also have access to the minor during school term, on the last weekend of every month or any other weekend as the parties may agree.
3. Each party shall bear his/her own costs.
Orders accordingly.
Judgment delivered, dated and signed virtually at Nairobi
This 29 th day of May, 2026.
In the Presence of :
Kevin – court assistant
……………………………………………… -for the Appellant
……………………………………………. -for the Respondent
Page 9 of 9
Background
1. In the year 2018, the Appellant herein, J AO, met and married the Respondent herein, JOO, through Luo Customary law. Their union was blessed with one issue, PMO. The Appellant moved out of their Nairobi home in 2022 after getting a job in Kisii. She indicated that she would come to Nairobi once every two weeks to check on her family until January 2025, when she separated from the Respondent and left with the minor, PMO who was then in PP2 and a student at Thomas Burke Catholic School in Buruburu. The Appellant enrolled the minor to Fairmonts International School in Kisii.
2. In April 2025, the Respondent was granted custody of the minor with the Respondent having the minor during school days and the Appellant having the minor during the school holidays.
3. It is this order that the Appellant is challenging and seeking to have the minor during the school days and the Respondent can have access over the weekends in a structured way, and during the school holidays, the holiday can be shared.
Pleadings
4. In the pleadings files in the lower court the Plaintiff(now Respondent) had filed for the following orders:-
a. That the parties be granted joint custody of the minor with the Plaintiff having him during school days and the Defendant during holidays.
b. That the Plaintiff to care for the minor’s educational and medical needs.
c. Parties to care for the shelter needs when staying with the minor.
d. Costs of the suit be borne by both parties.
e. Any other relief that the court may deem fit .
5. The Respondent had opposed the claim and sought to retain custody of the minor, having had the custody since 31 st January 2025, when she left the Nairobi home. She stated that she had already enrolled the child to a school and had been paying the school fees for the new school which the child has settled well.
6. The Learned Trial Magistrate entered Judgment for the Plaintiff as sought in the plaint.
7. The Appellant herein aggrieved by the trial court's findings on the issue of the custody of the minor during school days and school holidays only, filed the instant appeal and listed the following grounds of appeal in the Memorandum of Appeal:-
a. The Learned Magistrate erred in law and in fact by failing to apply Article 53 (2) of the Constitution of Kenya and section 8 of the Children’s Act 2022, which require that the best interests of the child be the primary and paramount consideration in all matters concerning a child.
b. The Learned Magistrate erred in law by awarding physical custody of a minor aged six (6) years to the Respondent during school days without considering or applying the well-established tender years doctrine, and without demonstrating the existence of exceptional circumstances to justify separation of the minor from the mother.
c. The Learned Magistrate erred in law and fact by failing to consider that the minor had been continuously living with the Appellant in Kisii and schooling there, for about one (1) year prior to the delivery of the Judgment, during which period the Appellant had been the primary caregiver, thereby disrupting the child's settled environment and emotional stability.
d. The Learned Magistrate erred in law and fact by failing to adequately consider the Respondent's own evidence and pleadings indicating that he frequently travels, which materially affects his availability to provide consistent daily care, supervision, and emotional support to a school-going minor.
e. The Learned Magistrate erred in law by improperly exercising discretion in awarding school-term physical custody to the Respondent without sufficient reasons, analysis, or justification grounded in evidence or law.
f. The Learned Magistrate erred in law and fact by selectively evaluating the evidence on record and failing to conduct a holistic assessment of the child's welfare, stability, emotional needs, and continuity of care.
g. The decision of the Learned Magistrate is against the weight of the evidence on record and is likely to occasion emotional, psychological, and developmental harm to the minor.
h. The Learned Magistrate erred in law and fact by making a custody arrangement that is impractical, disruptive to the minor's schooling and routine, and inconsistent with the principle of stability and continuity in the upbringing of a child of tender years.
i. The Learned Magistrate erred in fact by stating that the minors in this case are 8 and 4 years while, the minor in this case was only one child of 6 years.
j. The learned Magistrate erred in Law and fact by stating that this case is easy as it was largely unopposed while the defendant filed her defence on 23rd May, 2025, gave evidence at the hearing opposing the Plaintiff and even filed her submissions in support of her evidence and defence on 13th November, 2025.
8. The appeal was canvassed by way of submissions. The Appellant was present in court on 19 th May 2026 when the matter came up for highlighting of submissions and highlighted. The Respondent was absent.
Appellant's Submissions
9. The Appellant submitted on the question of best interest of the child and the fact that the minor herein is of tender years 96 years) and therefore custody should ordinarily be with the mother.
10. Counsel submitted that Article 53(2) of the Constitution of Kenya provides that: “ A child's best interest is of paramount importance in every matter concerning the child." And that Section 83 (1) of the Children Act, 2022 states “In determining whether or not a custody order should be made in favour of the Applicant, the court shall have regard to-
a. The conduct and wishes of the parent or guardian of the child;
b. The ascertainable wishes of the relatives of the child;
c. The ascertainable wishes of any foster parent, or any person who has had actual custody of th e child and under whom the child has made his home in the last three years preceding the application
d. The ascertainable wishes of the child;
e. Whether the child has suffered any harm or is likely to suffer any harm if the order is not made
f. The customs of the community to which the child belongs;
g. The religious persuasion of the child;
h. Whether a care order, or a supervision order, or a personal protection order, or ancillary order has been made in relation to the child concerned and whether those orders remain i n force;
i. The circumstances of any sibling of the child concerned, and of any other children of the home if any;
j. The best interest of the child.
11. The Court cited the decision in NNM v PMN [2023] KEHC Children's Appeal Case E045 of 2023), the High Court emphasized that: "A child's best interests are of paramount importance in every matter concerning the child."
Respondent's Submissions
12. The Submissions stated that the doctrine of tender years is not cast on stone and that it can be waived depending on the circumstances. Counsel submitted that the custody orders were made after the court considered the evidence and circumstances and therefore this court should dismiss the Appeal.
Determination
14. As a first Appellant court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused by the Court of Appeal in the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Another (1968) EA 123 , my duty is to evaluate and re-examine the evidence adduced in the trial court in order to arrive at my own findings. Parties testified before the trial court and I have had an opportunity to review the evidence in the Lower Court File. The Appellate court will not normally interfere with a lower court's findings of fact unless the same is founded on wrong principles, misapprehension of evidence or based on no evidence. The Court of Appeal in the Selle case (supra) held thus:-
"A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion,''
15. From the testimony of the parties, the minor herein is aged 6 years and no doubt is a child of tender years. Again according to the parties, they lived together from when the minor was born until the 31 st January 2025, when the Appellant took him away and they proceeded to Kisii where she works. The Appellant remained with the minor until the orders of custody were issued by the Learned Trial Magistrate on 10 th April 2025.
16. I have considered the Record of Appeal and the parties’ respective written submissions, I note that the only issues that this court needs to determine are:
a) Whether the trial court considered the best interests of the minor before awarding custody to the respondent?
b) Whether the court properly applied the doctrine of tender years.
17. With regard to the issues, Article 53(2) of the Constitution of Kenya 2010 provides that:
'' A child's best interests are of paramount importance in every matter concerning the child.''
18. Although the best interest standard can be hard to define in some situations, some factors are common in ''best interest'' analyses in most custody situations. Section 83(1) of The Children Act lists the following factors to be critical in "best interest" analysis:-
1) Wishes of the child ( if old enough to capably express a reasonable preference);
2) Mental and physical health of parents;
3) Religion and/or cultural considerations;
4) Need for continuation of stable home environment;
5) Support and opportunity for interaction with members of extended family of either parent;
6) Adjustment to school and community;
7) Age and sex of child;
8) Parent use of excessive discipline or emotional abuse; and
9) Evidence of parental drug, alcohol or sex abuse.
19. In Sospeter Ojaamong vs Lynnette Amondi Otieno Court of Appeal Civil Appeal No. 175 of 2006 the court held:-
'' The principles that guide the court in custody of children are that except where exceptional circumstances exist, the custody of such children be awarded to the mother, because mothers are generally best suited to exercise care and control of the children.''
The exceptional circumstances would include if the mother is unsettled, has taken a new husband or her living quarters are in a deplorable state.''
20. In the instant case it is undisputed that the mother of the minor is properly settled and works at Kisii. In fact, she took the child and immediately enrolled the minor to school and paid school fees. There is no allegation that she is unsettled or is living in conditions that would not be conducive for the minor. She was therefore a suitable mother to have the custody of the child.
21. Secondly, at the time the minor left Nairobi, he was 6 years old. Clearly the minor was a child of tender years within the meaning of the Children Act in view of his age. No evidence was brought before the trial court to show that the Respondent was an unfit mother, I find that the trial court failed to appreciate the age of the minor and failed to appreciate that at this tender age, the nurturing and care of a mother would greatly shape a child.
22. So that even going by those two reasons, my finding would be that the trial court had misdirected itself on the doctrine of tender years and failed to appreciate that it would have been in the best interest of the child to have the mother retain the minor.
23. On the issue of access, there appears to be no opposition to a structured manner of access. Again the structured access is to the best interest of the child, to ensure that the minor continues with his education uninterrupted and is not unnecessarily fatigued by being shuffled from Nairobi to Kisii to Kisumu. In the Appellants highlighting of the submissions, she suggested that there could be structured access during school days and the Respondent can have access during the holidays. Taking cue from the Appellant's suggestion, I will partly allow the Appeal and consequently make the following final order:
1. The parties are granted joint custody of the minor with the Appellant having him during the school term and the last week of school holidays and the Respondent having him during the first weeks of School Holidays.
2. The Respondent shall also have access to the minor during school term, on the last weekend of every month or any other weekend as the parties may agree.
3. Each party shall bear his/her own costs.
Orders accordingly.
Judgment delivered, dated and signed virtually at Nairobi
This 29 th day of May, 2026.
In the Presence of :
Kevin – court assistant
……………………………………………… -for the Appellant
……………………………………………. -for the Respondent
Page 9 of 9