1. This appeal emanates from the judgment of Hon. Waweru Wang’ang’a PM dated 10.02.2025 in Nyahururu Chief Magistrate’s Court Children Case No. E011 of 2024.
2. In the matter the Respondent sued the appellant seeking legal, sole and actual custody of the minors with an order setting out particulars of reasonable access, an order compelling the Appellant to maintain the subjects by providing for medical, educational and clothing expenses as the Respondent provided food, shelter and clothing as well.
3. In his defence the Appellant stated that he always had the custody of J.M.K and L.T.K and always provided basic needs without the Respondent’s input and it is in the best interest of the two minors that status quo be maintained and the Respondent be granted reasonable access.
4. That the primary custody of M.N.K remains with the Respondent and the Appellant be granted reasonable access. That the Appellant to continue providing for food, shelter and education for JM and LT and their clothing needs be shared equally between him and the Respondent.
That the Appellant do provide for medical care for M.N.K. and Ksh. 2,000/= per month to cater for other needs while the Respondent provides food, shelter for M.N.K. and the clothing needs be shared equally.
5. The trial court considered evidence that was presented and reached a finding that the welfare of the children was paramount hence granted the Respondent legal and physical custody. The Appellant was granted access and visitation rights, an arrangement that parties were left to agree on.
6. Further, the Court ordered that the Respondent would provide clothing, shelter and food for the children while the Appellant was to pay fees, provide medical expenses as well as sending the Respondent Ksh. 20,000/= per month on or before 5th day of each month for maintenance.
7. Aggrieved by the order of the court the Appellant preferred the instant appeal on grounds as follows;
a) THAT the learned trial Magistrate erred in law and in fact in failing to consider the principle of the best interest of the child in arriving at the said decision.
b) THAT the learned trial Magistrate erred in the law in fact by wrongly interpreting and applying the principles to be considered while making the custody and maintenance order under the Constitution of Kenya, 2010 and the Children Act No 8 of 2022 thereby arriving at a wrong conclusion.
c) THAT the learned trial magistrate erred in law and in fact in ordering the Appellant to pay Kshs 20,000/- per month towards the maintenance and to pay for the school fees and accessories as his contribution of the minors which amount is exorbitant and unreasonable and contrary to the best interest of all the children and against the principle of sharing equal parental responsibilities.
d) THAT the learned trial magistrate erred in law and in fact by ordering that the Appellant contributes a sum of Kshs 20,000/= being monthly contribution towards maintenance of the minors a prayer which was not sought in the pleadings against the principle that parties are bound by their pleadings.
e) THAT the learned trial magistrate erred in fact and in law in failing to apportion parental responsibility equally among the parents of the minors.
f) THAT the learned trial magistrate erred in law and in fact in failing to consider the financial capability of the Appellant and the Respondent and their respective financial responsibilities.
g) THAT the learned trial magistrate erred in law and in fact in interfering with the status quo without calling for a Children officer’s report hence interfering with the well being of the minors against their best interest.
h) THAT the learned trial magistrate erred in law and in fact in failing to consider the pleadings and submissions filed by the Appellant thus arrived at an erroneous conclusion.
8. The appeal was canvased through written submissions which I have duly taken into consideration. The duty of this court being a first appellate court is to re-evaluate and reconsider afresh evidence adduced at trial in order to reach an independent conclusion. This was stated by the Court of Appeal in Selle & Another v Associates Motor Boat Co Ltd & Another [1968] EA 123 as follows:
“…An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanor of a witness is inconsistent with the evidence generally.
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally…”
9. Facts that are undisputed are that parties herein cohabited and from the union three issues were born, namely;
JMK aged 8 years
LTK aged 6 years
MNK aged 1 year 11 months
10. These are children of tender years. Fundamental rights of the child are defined in Article 53 (2) of the Constitution which provides thus;
(2) A child’s best interests are of paramount importance in every matter concerning the child.
11. Similarly, the question of the welfare of the child is enacted in Statute. Section 8(a) of the Children Act provides that:
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 interest of the child shall be primary consideration.
12. On the question of custody, courts are guided by principles outlined by Statute. Section 103 of the Children Act provides as follows:
(1) In determining whether or not a custody order should be made in favour of an 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 the child taking into account the child’s evolving capacity;
(d) whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
(e) the customs of the community to which the child belongs;
(f) the religious persuasion of the child;
(g) whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force;
(h) the circumstances of any sibling of the child concerned, and of any other children of the home, if any;
(i) any of the matters specified in section 95(2) where the court considers such matters to be relevant in the making of an order under this section; and
(j) the best interest of the child.
(2) Where a custody order is made giving custody of a child to one parent, or in the case of joint guardians, to one guardian, the Court may order that the person not awarded custody shall nevertheless have all or any rights and duties in relation to a child, other than the right to actual possession, jointly with the person who is given custody of the child.
13. Ordinarily, female parents are granted primary custody of children of tender years. There is however a qualification for courts to consider for instance when there are exceptional circumstances in which case the best interest of the child should be the consideration. In Githunguri v Githunguri [1979] eklr it was held by the Court of Appeal that;
“… the custody of very young children should be granted to their mother, in the absence of exceptional circumstances which d not in my opinion exist in this case. The learned judge currently directed himself that in cases of this nature, the paramount consideration was the welfare of the children. He rejected the proposition, advanced before him by the mother’s advocate, that there was a rule in favour of the mother. With respect this was a misdirection. When dealing with the paramount consideration of welfare, especially where young female children are concerned, there is a rule that the mother is normally the person who should have custody”.
14. However, in MAK v RMAA and 4 Others (Petition 2 of 2022) [2023] KESC 21 the Supreme Court stipulated the precedent for determining custody. It emphasized that the "tender years doctrine" now depends on the best interests of the child as opposed to the rigid presumption as it happened in the past that a mother would be the most suitable parent to have custody of children of tender years.
15. Therefore, whatever decision the court reaches, it must be in the best interest of the child. A mother can be denied custody of the children if it is proved that she is unfit to stay with them or if she is unstable.
16. Other than the allegations that the Respondent was stressed at one point in time after she left employment to care for the children nothing was placed before the court to prove that she had mental health challenges. In seeking to stay with the children the Respondent urges that after they amicably agreed that the Appellant would have custody of the two (2) children while she stayed with the youngest who was breast feeding, it turned out that indeed the Appellant left the children in custody of his parents. The Appellant has delegated parental responsibility to his parents. He cannot care for the children on daily basis. No evidence was tendered of how stable the children were without their father, the Appellant herein. Being away means he did abdicate his responsibility as a parent. Therefore the other biological parent would be fit to have actual/physical custody of the children. For that reason the trial court didn’t misdirect itself in granting actual custody of the children to their mother, the Respondent. The court also correctly found that , for emotional stability siblings should be raised together. Section 11 (2) (5) of the Children Act provides that;
Where an order made under subsection (3) applies to two or more siblings, the order shall provide that the siblings be placed under care and protection together and that they may not be separated, except for such compelling reasons as the Court shall record.
17. The children must bond hence must be protected. It is therefore vital for the children to grow up together.
18. On the question of maintenance, parents are obligated to maintain their children in a proportion that is according to their financial means. Section 113 of the Children Act provides;
The Court may order the person against whom a maintenance order is made to make a financial provision for the child by— (a) periodic payments; or (b) such lump sum payment, as the Court shall deem fit, to the person in whose favour the order is made, or to any other person appointed by the Court.
19. The Appellant herein is in gainful employment while the Respondent who lives with her parents is unemployed but engages in some activities that enable her earn a living and support M.N.K.
20. In SKM v MWI (2015) eklr the court held that maintenance orders were designed to provide for the needs of each child, taking into account the financial means of the parents.
21. To reach a just decision there was need for affidavits of means to be filed by the parties. It would have been imperative for evidence to be tendered of income and liabilities, if any. An affidavit of means is mandatory in establishing financial ability. The children officer should have been directed to carry out a social inquiry so as to file a report in that regard. The parents (Appellant and Respondent) have a duty of providing the children with shelter, education, food, clothing, medical care etc, but how can these be done without evidence of appropriate means?
22. The Appellant has asked this court to overturn the decision of the trial court then substitute it with an order granting custody of the children to him and equitably apportion parental responsibility. But this cannot happen unless evidence of means is provided.
23. For that reason, the appeal succeeds partially in that I quash and set aside the order of the trial court and refer the matter to the trial court presided over by Hon. Waweru Wang’ang’a PM with directions that he calls for the children officer’s report and affidavit of means of both parties herein so as to come up with an informed decision on the issue of maintenance of the children.
24. Each party shall bear its costs.
25. Mention on 27.5.2026 before the trial court.
It is so ordered.
2. In the matter the Respondent sued the appellant seeking legal, sole and actual custody of the minors with an order setting out particulars of reasonable access, an order compelling the Appellant to maintain the subjects by providing for medical, educational and clothing expenses as the Respondent provided food, shelter and clothing as well.
3. In his defence the Appellant stated that he always had the custody of J.M.K and L.T.K and always provided basic needs without the Respondent’s input and it is in the best interest of the two minors that status quo be maintained and the Respondent be granted reasonable access.
4. That the primary custody of M.N.K remains with the Respondent and the Appellant be granted reasonable access. That the Appellant to continue providing for food, shelter and education for JM and LT and their clothing needs be shared equally between him and the Respondent.
That the Appellant do provide for medical care for M.N.K. and Ksh. 2,000/= per month to cater for other needs while the Respondent provides food, shelter for M.N.K. and the clothing needs be shared equally.
5. The trial court considered evidence that was presented and reached a finding that the welfare of the children was paramount hence granted the Respondent legal and physical custody. The Appellant was granted access and visitation rights, an arrangement that parties were left to agree on.
6. Further, the Court ordered that the Respondent would provide clothing, shelter and food for the children while the Appellant was to pay fees, provide medical expenses as well as sending the Respondent Ksh. 20,000/= per month on or before 5th day of each month for maintenance.
7. Aggrieved by the order of the court the Appellant preferred the instant appeal on grounds as follows;
a) THAT the learned trial Magistrate erred in law and in fact in failing to consider the principle of the best interest of the child in arriving at the said decision.
b) THAT the learned trial Magistrate erred in the law in fact by wrongly interpreting and applying the principles to be considered while making the custody and maintenance order under the Constitution of Kenya, 2010 and the Children Act No 8 of 2022 thereby arriving at a wrong conclusion.
c) THAT the learned trial magistrate erred in law and in fact in ordering the Appellant to pay Kshs 20,000/- per month towards the maintenance and to pay for the school fees and accessories as his contribution of the minors which amount is exorbitant and unreasonable and contrary to the best interest of all the children and against the principle of sharing equal parental responsibilities.
d) THAT the learned trial magistrate erred in law and in fact by ordering that the Appellant contributes a sum of Kshs 20,000/= being monthly contribution towards maintenance of the minors a prayer which was not sought in the pleadings against the principle that parties are bound by their pleadings.
e) THAT the learned trial magistrate erred in fact and in law in failing to apportion parental responsibility equally among the parents of the minors.
f) THAT the learned trial magistrate erred in law and in fact in failing to consider the financial capability of the Appellant and the Respondent and their respective financial responsibilities.
g) THAT the learned trial magistrate erred in law and in fact in interfering with the status quo without calling for a Children officer’s report hence interfering with the well being of the minors against their best interest.
h) THAT the learned trial magistrate erred in law and in fact in failing to consider the pleadings and submissions filed by the Appellant thus arrived at an erroneous conclusion.
8. The appeal was canvased through written submissions which I have duly taken into consideration. The duty of this court being a first appellate court is to re-evaluate and reconsider afresh evidence adduced at trial in order to reach an independent conclusion. This was stated by the Court of Appeal in Selle & Another v Associates Motor Boat Co Ltd & Another [1968] EA 123 as follows:
“…An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanor of a witness is inconsistent with the evidence generally.
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally…”
9. Facts that are undisputed are that parties herein cohabited and from the union three issues were born, namely;
JMK aged 8 years
LTK aged 6 years
MNK aged 1 year 11 months
10. These are children of tender years. Fundamental rights of the child are defined in Article 53 (2) of the Constitution which provides thus;
(2) A child’s best interests are of paramount importance in every matter concerning the child.
11. Similarly, the question of the welfare of the child is enacted in Statute. Section 8(a) of the Children Act provides that:
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 interest of the child shall be primary consideration.
12. On the question of custody, courts are guided by principles outlined by Statute. Section 103 of the Children Act provides as follows:
(1) In determining whether or not a custody order should be made in favour of an 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 the child taking into account the child’s evolving capacity;
(d) whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
(e) the customs of the community to which the child belongs;
(f) the religious persuasion of the child;
(g) whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force;
(h) the circumstances of any sibling of the child concerned, and of any other children of the home, if any;
(i) any of the matters specified in section 95(2) where the court considers such matters to be relevant in the making of an order under this section; and
(j) the best interest of the child.
(2) Where a custody order is made giving custody of a child to one parent, or in the case of joint guardians, to one guardian, the Court may order that the person not awarded custody shall nevertheless have all or any rights and duties in relation to a child, other than the right to actual possession, jointly with the person who is given custody of the child.
13. Ordinarily, female parents are granted primary custody of children of tender years. There is however a qualification for courts to consider for instance when there are exceptional circumstances in which case the best interest of the child should be the consideration. In Githunguri v Githunguri [1979] eklr it was held by the Court of Appeal that;
“… the custody of very young children should be granted to their mother, in the absence of exceptional circumstances which d not in my opinion exist in this case. The learned judge currently directed himself that in cases of this nature, the paramount consideration was the welfare of the children. He rejected the proposition, advanced before him by the mother’s advocate, that there was a rule in favour of the mother. With respect this was a misdirection. When dealing with the paramount consideration of welfare, especially where young female children are concerned, there is a rule that the mother is normally the person who should have custody”.
14. However, in MAK v RMAA and 4 Others (Petition 2 of 2022) [2023] KESC 21 the Supreme Court stipulated the precedent for determining custody. It emphasized that the "tender years doctrine" now depends on the best interests of the child as opposed to the rigid presumption as it happened in the past that a mother would be the most suitable parent to have custody of children of tender years.
15. Therefore, whatever decision the court reaches, it must be in the best interest of the child. A mother can be denied custody of the children if it is proved that she is unfit to stay with them or if she is unstable.
16. Other than the allegations that the Respondent was stressed at one point in time after she left employment to care for the children nothing was placed before the court to prove that she had mental health challenges. In seeking to stay with the children the Respondent urges that after they amicably agreed that the Appellant would have custody of the two (2) children while she stayed with the youngest who was breast feeding, it turned out that indeed the Appellant left the children in custody of his parents. The Appellant has delegated parental responsibility to his parents. He cannot care for the children on daily basis. No evidence was tendered of how stable the children were without their father, the Appellant herein. Being away means he did abdicate his responsibility as a parent. Therefore the other biological parent would be fit to have actual/physical custody of the children. For that reason the trial court didn’t misdirect itself in granting actual custody of the children to their mother, the Respondent. The court also correctly found that , for emotional stability siblings should be raised together. Section 11 (2) (5) of the Children Act provides that;
Where an order made under subsection (3) applies to two or more siblings, the order shall provide that the siblings be placed under care and protection together and that they may not be separated, except for such compelling reasons as the Court shall record.
17. The children must bond hence must be protected. It is therefore vital for the children to grow up together.
18. On the question of maintenance, parents are obligated to maintain their children in a proportion that is according to their financial means. Section 113 of the Children Act provides;
The Court may order the person against whom a maintenance order is made to make a financial provision for the child by— (a) periodic payments; or (b) such lump sum payment, as the Court shall deem fit, to the person in whose favour the order is made, or to any other person appointed by the Court.
19. The Appellant herein is in gainful employment while the Respondent who lives with her parents is unemployed but engages in some activities that enable her earn a living and support M.N.K.
20. In SKM v MWI (2015) eklr the court held that maintenance orders were designed to provide for the needs of each child, taking into account the financial means of the parents.
21. To reach a just decision there was need for affidavits of means to be filed by the parties. It would have been imperative for evidence to be tendered of income and liabilities, if any. An affidavit of means is mandatory in establishing financial ability. The children officer should have been directed to carry out a social inquiry so as to file a report in that regard. The parents (Appellant and Respondent) have a duty of providing the children with shelter, education, food, clothing, medical care etc, but how can these be done without evidence of appropriate means?
22. The Appellant has asked this court to overturn the decision of the trial court then substitute it with an order granting custody of the children to him and equitably apportion parental responsibility. But this cannot happen unless evidence of means is provided.
23. For that reason, the appeal succeeds partially in that I quash and set aside the order of the trial court and refer the matter to the trial court presided over by Hon. Waweru Wang’ang’a PM with directions that he calls for the children officer’s report and affidavit of means of both parties herein so as to come up with an informed decision on the issue of maintenance of the children.
24. Each party shall bear its costs.
25. Mention on 27.5.2026 before the trial court.
It is so ordered.