'
The Applicant’s Notice of Motion is dated 17 th July 2025 and is presented under Sections 2(d); 8(2); 11;15(1);22(a) and (b) and (3); 108(1); 135(1)(a) of the Children’s Act, 2022 and seeks the following orders-
Spent
Pursuant to paragraph 2 and 4 of the Order in this Appeal of the Hon. Mr. Justice E. Ogola made on 4 th February 2025 and pending the hearing and determination of the Appellant’s Appeal in Nairobi Court of Appeal Civil Appeal No. 258 of 2025 (K.J.H vs T.W.W) the Respondent (T.W.W) TABBYROSE WANJA WAMAITHA be ordered to forthwith provide the Appellant herein a cell phone contact for the minor J.H.H to access/ contact the Appellant K.J.H ( Kinyanjui J. Harrison) by, at any time the minor J.H.H elects, and by which cell phone contact the Appellant shall access/ contact the minor J.H.H. between the hours of 6.30pm and 8.00pm on weekdays, and between 9.00a.m and 8.00p.m on all weekends ( or such reasonable times as this Honourable Court shall set), until further Court Orders.
This Honorable Court issues such further and expedient directions on the determination of this application.
There be no order as to costs.
The application is supported by affidavit sworn by the applicant on even date and supplementary affidavit sworn on 22 nd October 2025. The Application is opposed and the respondent has sworn an affidavit in opposition on 10 th October 2025. Pursuant to the Court’s directions both parties have filed their submissions. The Applicant’s submissions are dated 5 th September 2025, while those of the respondent are dated 10 th October 2025.
SUMMARY OF APPLICANT’S CASE
The applicant is aggrieved by the decision of the Hon. Mr. Justice E. K. Ogola delivered on 4 th February 2025 and has since filed an appeal in the Court of Appeal vide Court of Appeal No. E258 of 2025. The Court of Appeal has already given directions on the hearing of the appeal and the applicant seeks interim access to the minor, pending the determination of that appeal.
The Applicant avers that he and the applicant are the biological parents of the minor, the appeal herein emanates from ruling on 23 rd September 2022 of the trial court in Nairobi Children’s Court Case No. E039 of 2021 at Milimani Children’s Court, Nairobi.
He is aggrieved that the appellant has denied him access to the minor, since March 18 th 2021 and as a consequence the parent child bond between him and the minor has not been allowed to develop. This is causing him emotional distress and is not in the best interests of the child.
The relationship between him and the respondent is toxic and the respondent has actively and deliberately denied him access or meaningful access to the minor notwithstanding court orders directing that he has access. The respondent has failed to avail the child for counselling sessions as directed by the Court.
That in fact the current appeal is premised on the failure of the trial court to punish the respondent for contempt of Court. It has not been possible to negotiate and agree with the applicant on a mode of access to the minor that factors in his interests and those of the minor.
His proposal on access will ensure that he maintains the parent child link that is ideal for the emotional development of the minor and also upholds his parental rights to access his child.
In his submissions he refers to the decision in HOO v MGO [2021] eKLR to urge that the orders must safeguard the best interests of the Child. He submits further that he aims to safeguard his parental rights as provided for under Section 11 of the Children Act. The respondent’s actions are in violation of the provisions of the Children Act, 2022 that require that the child be protected from harm, including psychological abuse.
Reference is made to the decision in Re H (Parental Alienation) Neutral Citation Number: [2019] EWHC 2723 (Fam) Case No. LE16P01408 in support of the applicant’s submission that his continued alienation from the child is harmful to the child and that it is in the child’s best interest that he have regular contact with his parent (father).
Reference is made to the decision in PNM v ECW [2021] eKLR and SMK v ENR (Civil Suit E027 of 2022) [2022] KEHC 15904 (KLR) (Family) (4 November 2022) (Ruling) on the paramountcy of the child’s best interests.
It is submitted that the Court has a duty to safeguard the minor’s interest and reference made to the decision in AM v MAM [2012] eKLR. The court should make an adverse finding against the respondent as she has failed to avail the child for counselling, parallels are drawn with the Court’s decision in AWK v PKM [2021] eKLR.
It is submitted that the continued recalcitrance of the respondent will have a negative bearing on the emotional and psychological health of the minor and reference made to the decision in RA v JNO (Suing as the Next Friend and Mother to the Minors IO and MM) Children’s Appeal Case E001 of 2024) [2024] KEHC 2557 (KLR) on the duty of the Court to safeguard the dignity of the minor who is a subject of the proceedings.
It is submitted that the respondent has consistently disobeyed the orders of the Court and the Court should assert its authority, reference is as was observed in the decisions of Mohammed Yeslam Awadh v Peter Wilber Marumbu [2004] eKLR . He appeals that the respondent is directly responsible for the alienation of the applicant and the minor herein. He therefore urges that the Court enforce his right to participate in decisions touching on the life of the minor as was held in the case of MOT v EAO [2021] eKLR. In conclusion the applicant urges that the child’s wishes should be treated with caution as the respondent has influenced the child against him and reference made to the decision in Re a (Children) (Parental alienation) [2019] EWFC.
SUMMARY OF THE RESPONDENT’S CASE.
The Respondent confirms that she and the applicant are the biological parents of the minor. She avers that the application is without merit as it is premised on material misrepresentations and selective disclosures. She submits that the and latest orders of the Court barred school access by the applicant and directed that the parties agree on modalities of access, failure of which they revert to court for the Court to decide.
The applicant instead of adopting a consultative and collaborative approach has elected one that is confrontational and acrimonious. She is opposed to the unrestricted telephone access owing to the toxic relationship between the one that is predictable, safe and structured in line with the Children Act, 2022.
She denies barring access to the minor but alleges that in the past owing to the conduct of the applicant the minor has been distressed by the contact. She avers that she is committed to co- parenting in a manner that safeguards the emotional, psychological and developmental needs of the child, through structured, professional- facilitated arrangements.
She urges that the child’s best interests should be the paramount consideration. She urges that the Court’s orders on access should factor in the child’s views pursuant to Article 53 (2) of the Constitution of Kenya and Section 8(3) of the Children Act, 2022.
In her submissions she frames the following as the issues for determination-
Whether the Appellant’s Application is properly before this Court in light of prior judicial pronouncements and procedural history;
Whether the prayer for telephone access is tenable in the prevailing circumstances;
Whether the respondent has been in contempt or has wilfully denied access to the minor
What orders are in the best interests of the Child
It is submitted that in light of the decision of 4 th February 2025, the current application is an abuse of Court process and relies on the decision in KMK v EW (Civil Appeal E319 of 2023) [2024] KEHC 1132 (KLR), where the Court emphasised the principle of finality and frowned upon incessant litigating.
It is averred that the orders sought (telephone access) are not in the best interests of the minor and reference made to the decision in TSKC v DAO (Civil Appeal E112 of 2024) [2024] KEHC 11703 (KLR) and GMM v SAA (Family Appeal E12 of 2020) [2022] KEHC 14593 (KLR).
She denies that she is a contemnor and submits that her actions are informed by safeguarding the rights and well-being of the minor. On the best interests of the minor, she submits that the minor has been heard in the past and his preference should be considered. She reiterates that she is not opposed to access to the minor by the applicant but urges that it must be
Neutral supervised and predictable
Be informed by a professional assessment
Respect the minor’s views.
ANALYSIS AND DETERMINATION
Having considered the pleadings and submissions it is evident that the primary issue for determination is-
What orders should issue that are in the best interests of the Child?
Who should pay costs
It is trite that in every decision undertaken concerning a child, the best interest of a child should be taken into account.This position is clearly captured in the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The same has also been captured under Article 53 (2) of the Constitution of Kenya as follows:
a child’s best interests are of paramount importance in every matter concerning the child.
From the onset, it follows that what matters to this court, is the best interest of the minor and the same was well pronounced in the case of MAA v ABS [2018] eKLR, where it was held as follows:-
....While considering this matter,this Court is alert to the welfare of the children hereinwho are of tender years. The matter is not about the applicant/appellant and the respondent; and their interests are secondary to those of the child. Theforegoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein. Acting in the best interest of the children in question.
Section 8 of the Children Act, expounds on the application of the best interests of the child principle thus-
8. Best interests of the child
(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
The first schedule of the Children Act enumerates the considerations that the Court will have in arriving at the best interests of the Child as-
BEST INTEREST CONSIDERATIONS
1.The age, maturity, stage of development, gender, background and any other relevant characteristic of the child.
2.Distinct special needs (if any) arising from chronic ailment or disability.
3.The relationship of the child with the child''s parent(s) and/or guardian(s) and any other persons who may significantly affect the child''s welfare.
4.The preference of the child, if old enough to express a meaningful preference.
5.The duration and adequacy of the child''s current living arrangements and the desirability of maintaining continuity.
6.The stability of any proposed living arrangements for the child;
7.The motivation of the parties involved and their capacities to give the child love, affection and guidance.
8.The child''s adjustment to the child''s present home, school and community.
9.The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
10.The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
11.Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent''s/guardian’s willingness to use those methods.
12.The effect on the child if one parent/guardian has sole authority over the child''s upbringing.
13.The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
14.The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child.
15.Where the child is under one year of age, whether the child is being breast-fed.
16.The existence of a parent''s or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
17.Where there is a person residing with a parent or guardian, whether that person—(a)been convicted of a crime under this Act, the Sexual Offences Act (Cap. 63A), the Penal Code (Cap. 63), or any other legislation.(b)has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony.
18.Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child.
In promoting the best interests of the Child, Section 2 of the Children’s Act requires that the Court prime the child’s right ‘to survival, protection, participation and development above other considerationons’.
In presenting this application, the applicant is seeking to assert his parental rights in relation to the child. These rights are recognised under Section 32 of the Children Act which provides, inter alia -
32. Equal parental responsibility
(1)Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.
This Court finds itself in almost identical circumstances as that in the Supreme Court case; Supreme Court Petition No. 2 ( EOO3) of 2022 MAK vs RMAA & 4 Others, the Court emphasized the centrality of the best interests of the Child, underscoring that the best interests of the child are to be the determining factor when making a decision on the child and it is against this aspect that parental rights ought to be balanced. The Court then issued the following guidelines-
[87] Courts, therefore, while making a decision that will impact the child are mandated to consider all circumstances affecting the child. As such, we are of the view that the following guidelines are necessary and ought to be considered when balancing a child’s best interests and parental rights and responsibility:
1. The existence of a PRA between the parties.
2. The past performance of each parent.
3. Each parent’s presence including his or her ability to guide the child and provide for the child''s overall well-being.
4. The ascertainable wishes of a child who is capable of giving /expressing his /her opinion.
5. The financial status of each parent.
6. The individual needs of each child.
7. The quality of the available home environment.
8. Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted.
9. Need to ensure that children are not placed in alternative care unnecessarily.
10. The mental health of the parents and
11. The totality of the circumstances.
The Court is therefore required to apply the best interest principle to ensure that the child does not bear the brunt of the parent’s fall out. I deem it in the Child’s best interests that orders touching on parental access ought to be predictable, scheduled and accommodating of the child’s own calendar. Therefore whilst recognising the appellant’s parental rights, I am mindful of the fact that the minor herein is almost 12 years old.
Article 53 of the Constitution as read together with Sections 8 and 31 (1) of the Children Act, 2022 recognise the Child as a right holder and entrench the principle of evolving capacities which requires that a child be given an opportunity to be heard and their views be considered. This is a requirement, the Court has no discretion.
Article 12 of the United Nations Convention on the Rights of the Child, to which Kenya is a signatory states it succinctly thus-
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
I am in agreement that the appellant is within his rights to seek telephone access of the minor. I agree that it is in the Child’s best interests to have access to both parents. I see no reason to deny the applicant telephone access in the interim pending the determination of the appeal but direct that this will be on a schedule to be proposed by the minor.
Accordingly, the Director of Children Services, Nairobi ( or representative nominated by him), will interview the child on or before 19 th November 2025 and inform the appellant, in writing not later than 24 th November 2025 of the schedule for telephone access as proposed by the minor. The Child shall also indicate the telephone number that shall be used by the applicant in communicating with him. This order will therefore be extracted and served on the Director of Children Services at Nyayo House, Nairobi.
The parties will abide by the proposal by the minor pending the determination of Nairobi Court of Appeal Civil Appeal No. 258 of 2025 .
On account of the relationship between the parties there shall be no order as to costs.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…14 th day of November 2025
'
The Applicant’s Notice of Motion is dated 17 th July 2025 and is presented under Sections 2(d); 8(2); 11;15(1);22(a) and (b) and (3); 108(1); 135(1)(a) of the Children’s Act, 2022 and seeks the following orders-
Spent
Pursuant to paragraph 2 and 4 of the Order in this Appeal of the Hon. Mr. Justice E. Ogola made on 4 th February 2025 and pending the hearing and determination of the Appellant’s Appeal in Nairobi Court of Appeal Civil Appeal No. 258 of 2025 (K.J.H vs T.W.W) the Respondent (T.W.W) TABBYROSE WANJA WAMAITHA be ordered to forthwith provide the Appellant herein a cell phone contact for the minor J.H.H to access/ contact the Appellant K.J.H ( Kinyanjui J. Harrison) by, at any time the minor J.H.H elects, and by which cell phone contact the Appellant shall access/ contact the minor J.H.H. between the hours of 6.30pm and 8.00pm on weekdays, and between 9.00a.m and 8.00p.m on all weekends ( or such reasonable times as this Honourable Court shall set), until further Court Orders.
This Honorable Court issues such further and expedient directions on the determination of this application.
There be no order as to costs.
The application is supported by affidavit sworn by the applicant on even date and supplementary affidavit sworn on 22 nd October 2025. The Application is opposed and the respondent has sworn an affidavit in opposition on 10 th October 2025. Pursuant to the Court’s directions both parties have filed their submissions. The Applicant’s submissions are dated 5 th September 2025, while those of the respondent are dated 10 th October 2025.
SUMMARY OF APPLICANT’S CASE
The applicant is aggrieved by the decision of the Hon. Mr. Justice E. K. Ogola delivered on 4 th February 2025 and has since filed an appeal in the Court of Appeal vide Court of Appeal No. E258 of 2025. The Court of Appeal has already given directions on the hearing of the appeal and the applicant seeks interim access to the minor, pending the determination of that appeal.
The Applicant avers that he and the applicant are the biological parents of the minor, the appeal herein emanates from ruling on 23 rd September 2022 of the trial court in Nairobi Children’s Court Case No. E039 of 2021 at Milimani Children’s Court, Nairobi.
He is aggrieved that the appellant has denied him access to the minor, since March 18 th 2021 and as a consequence the parent child bond between him and the minor has not been allowed to develop. This is causing him emotional distress and is not in the best interests of the child.
The relationship between him and the respondent is toxic and the respondent has actively and deliberately denied him access or meaningful access to the minor notwithstanding court orders directing that he has access. The respondent has failed to avail the child for counselling sessions as directed by the Court.
That in fact the current appeal is premised on the failure of the trial court to punish the respondent for contempt of Court. It has not been possible to negotiate and agree with the applicant on a mode of access to the minor that factors in his interests and those of the minor.
His proposal on access will ensure that he maintains the parent child link that is ideal for the emotional development of the minor and also upholds his parental rights to access his child.
In his submissions he refers to the decision in HOO v MGO [2021] eKLR to urge that the orders must safeguard the best interests of the Child. He submits further that he aims to safeguard his parental rights as provided for under Section 11 of the Children Act. The respondent’s actions are in violation of the provisions of the Children Act, 2022 that require that the child be protected from harm, including psychological abuse.
Reference is made to the decision in Re H (Parental Alienation) Neutral Citation Number: [2019] EWHC 2723 (Fam) Case No. LE16P01408 in support of the applicant’s submission that his continued alienation from the child is harmful to the child and that it is in the child’s best interest that he have regular contact with his parent (father).
Reference is made to the decision in PNM v ECW [2021] eKLR and SMK v ENR (Civil Suit E027 of 2022) [2022] KEHC 15904 (KLR) (Family) (4 November 2022) (Ruling) on the paramountcy of the child’s best interests.
It is submitted that the Court has a duty to safeguard the minor’s interest and reference made to the decision in AM v MAM [2012] eKLR. The court should make an adverse finding against the respondent as she has failed to avail the child for counselling, parallels are drawn with the Court’s decision in AWK v PKM [2021] eKLR.
It is submitted that the continued recalcitrance of the respondent will have a negative bearing on the emotional and psychological health of the minor and reference made to the decision in RA v JNO (Suing as the Next Friend and Mother to the Minors IO and MM) Children’s Appeal Case E001 of 2024) [2024] KEHC 2557 (KLR) on the duty of the Court to safeguard the dignity of the minor who is a subject of the proceedings.
It is submitted that the respondent has consistently disobeyed the orders of the Court and the Court should assert its authority, reference is as was observed in the decisions of Mohammed Yeslam Awadh v Peter Wilber Marumbu [2004] eKLR . He appeals that the respondent is directly responsible for the alienation of the applicant and the minor herein. He therefore urges that the Court enforce his right to participate in decisions touching on the life of the minor as was held in the case of MOT v EAO [2021] eKLR. In conclusion the applicant urges that the child’s wishes should be treated with caution as the respondent has influenced the child against him and reference made to the decision in Re a (Children) (Parental alienation) [2019] EWFC.
SUMMARY OF THE RESPONDENT’S CASE.
The Respondent confirms that she and the applicant are the biological parents of the minor. She avers that the application is without merit as it is premised on material misrepresentations and selective disclosures. She submits that the and latest orders of the Court barred school access by the applicant and directed that the parties agree on modalities of access, failure of which they revert to court for the Court to decide.
The applicant instead of adopting a consultative and collaborative approach has elected one that is confrontational and acrimonious. She is opposed to the unrestricted telephone access owing to the toxic relationship between the one that is predictable, safe and structured in line with the Children Act, 2022.
She denies barring access to the minor but alleges that in the past owing to the conduct of the applicant the minor has been distressed by the contact. She avers that she is committed to co- parenting in a manner that safeguards the emotional, psychological and developmental needs of the child, through structured, professional- facilitated arrangements.
She urges that the child’s best interests should be the paramount consideration. She urges that the Court’s orders on access should factor in the child’s views pursuant to Article 53 (2) of the Constitution of Kenya and Section 8(3) of the Children Act, 2022.
In her submissions she frames the following as the issues for determination-
Whether the Appellant’s Application is properly before this Court in light of prior judicial pronouncements and procedural history;
Whether the prayer for telephone access is tenable in the prevailing circumstances;
Whether the respondent has been in contempt or has wilfully denied access to the minor
What orders are in the best interests of the Child
It is submitted that in light of the decision of 4 th February 2025, the current application is an abuse of Court process and relies on the decision in KMK v EW (Civil Appeal E319 of 2023) [2024] KEHC 1132 (KLR), where the Court emphasised the principle of finality and frowned upon incessant litigating.
It is averred that the orders sought (telephone access) are not in the best interests of the minor and reference made to the decision in TSKC v DAO (Civil Appeal E112 of 2024) [2024] KEHC 11703 (KLR) and GMM v SAA (Family Appeal E12 of 2020) [2022] KEHC 14593 (KLR).
She denies that she is a contemnor and submits that her actions are informed by safeguarding the rights and well-being of the minor. On the best interests of the minor, she submits that the minor has been heard in the past and his preference should be considered. She reiterates that she is not opposed to access to the minor by the applicant but urges that it must be
Neutral supervised and predictable
Be informed by a professional assessment
Respect the minor’s views.
ANALYSIS AND DETERMINATION
Having considered the pleadings and submissions it is evident that the primary issue for determination is-
What orders should issue that are in the best interests of the Child?
Who should pay costs
It is trite that in every decision undertaken concerning a child, the best interest of a child should be taken into account.This position is clearly captured in the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The same has also been captured under Article 53 (2) of the Constitution of Kenya as follows:
a child’s best interests are of paramount importance in every matter concerning the child.
From the onset, it follows that what matters to this court, is the best interest of the minor and the same was well pronounced in the case of MAA v ABS [2018] eKLR, where it was held as follows:-
....While considering this matter,this Court is alert to the welfare of the children hereinwho are of tender years. The matter is not about the applicant/appellant and the respondent; and their interests are secondary to those of the child. Theforegoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein. Acting in the best interest of the children in question.
Section 8 of the Children Act, expounds on the application of the best interests of the child principle thus-
8. Best interests of the child
(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
The first schedule of the Children Act enumerates the considerations that the Court will have in arriving at the best interests of the Child as-
BEST INTEREST CONSIDERATIONS
1.The age, maturity, stage of development, gender, background and any other relevant characteristic of the child.
2.Distinct special needs (if any) arising from chronic ailment or disability.
3.The relationship of the child with the child''s parent(s) and/or guardian(s) and any other persons who may significantly affect the child''s welfare.
4.The preference of the child, if old enough to express a meaningful preference.
5.The duration and adequacy of the child''s current living arrangements and the desirability of maintaining continuity.
6.The stability of any proposed living arrangements for the child;
7.The motivation of the parties involved and their capacities to give the child love, affection and guidance.
8.The child''s adjustment to the child''s present home, school and community.
9.The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
10.The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
11.Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent''s/guardian’s willingness to use those methods.
12.The effect on the child if one parent/guardian has sole authority over the child''s upbringing.
13.The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
14.The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child.
15.Where the child is under one year of age, whether the child is being breast-fed.
16.The existence of a parent''s or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
17.Where there is a person residing with a parent or guardian, whether that person—(a)been convicted of a crime under this Act, the Sexual Offences Act (Cap. 63A), the Penal Code (Cap. 63), or any other legislation.(b)has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony.
18.Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child.
In promoting the best interests of the Child, Section 2 of the Children’s Act requires that the Court prime the child’s right ‘to survival, protection, participation and development above other considerationons’.
In presenting this application, the applicant is seeking to assert his parental rights in relation to the child. These rights are recognised under Section 32 of the Children Act which provides, inter alia -
32. Equal parental responsibility
(1)Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.
This Court finds itself in almost identical circumstances as that in the Supreme Court case; Supreme Court Petition No. 2 ( EOO3) of 2022 MAK vs RMAA & 4 Others, the Court emphasized the centrality of the best interests of the Child, underscoring that the best interests of the child are to be the determining factor when making a decision on the child and it is against this aspect that parental rights ought to be balanced. The Court then issued the following guidelines-
[87] Courts, therefore, while making a decision that will impact the child are mandated to consider all circumstances affecting the child. As such, we are of the view that the following guidelines are necessary and ought to be considered when balancing a child’s best interests and parental rights and responsibility:
1. The existence of a PRA between the parties.
2. The past performance of each parent.
3. Each parent’s presence including his or her ability to guide the child and provide for the child''s overall well-being.
4. The ascertainable wishes of a child who is capable of giving /expressing his /her opinion.
5. The financial status of each parent.
6. The individual needs of each child.
7. The quality of the available home environment.
8. Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted.
9. Need to ensure that children are not placed in alternative care unnecessarily.
10. The mental health of the parents and
11. The totality of the circumstances.
The Court is therefore required to apply the best interest principle to ensure that the child does not bear the brunt of the parent’s fall out. I deem it in the Child’s best interests that orders touching on parental access ought to be predictable, scheduled and accommodating of the child’s own calendar. Therefore whilst recognising the appellant’s parental rights, I am mindful of the fact that the minor herein is almost 12 years old.
Article 53 of the Constitution as read together with Sections 8 and 31 (1) of the Children Act, 2022 recognise the Child as a right holder and entrench the principle of evolving capacities which requires that a child be given an opportunity to be heard and their views be considered. This is a requirement, the Court has no discretion.
Article 12 of the United Nations Convention on the Rights of the Child, to which Kenya is a signatory states it succinctly thus-
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
I am in agreement that the appellant is within his rights to seek telephone access of the minor. I agree that it is in the Child’s best interests to have access to both parents. I see no reason to deny the applicant telephone access in the interim pending the determination of the appeal but direct that this will be on a schedule to be proposed by the minor.
Accordingly, the Director of Children Services, Nairobi ( or representative nominated by him), will interview the child on or before 19 th November 2025 and inform the appellant, in writing not later than 24 th November 2025 of the schedule for telephone access as proposed by the minor. The Child shall also indicate the telephone number that shall be used by the applicant in communicating with him. This order will therefore be extracted and served on the Director of Children Services at Nyayo House, Nairobi.
The parties will abide by the proposal by the minor pending the determination of Nairobi Court of Appeal Civil Appeal No. 258 of 2025 .
On account of the relationship between the parties there shall be no order as to costs.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…14 th day of November 2025
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