JUDGEMENT
(Being an appeal against the ruling and order of Hon. C. Mwaniki (Principal Magistrate) delivered on 13th May 2024 in Ruiru Senior Principal Magistrate’s Court, Children’s Case No. E056 of 2022.)
1. This is a judgment in respect of the Appellant’s Appeal dated 24th May 2024 and the Respondent’s Cross-appeal dated 10th July 2024, as further amended on 27th August 2024. The Appeals arise from the Ruling and order of Hon. C. Mwaniki (Principal Magistrate) delivered on 13th May 2024. This is in respect to Ruiru Senior Principal Magistrate’s Court, Children’s Case No. E056 of 2022.
Appellant’s Appeal
2. The Appellant sought the following orders:
(1) That the appeal herein be allowed.
(2) That the ruling and order issued on 15th May 2024 be set aside.
(3) That actual custody, care and control of the minors E.M, A.W and A.M be granted to the appellant.
(4) Any other and such further relief as the court may deem just and fit to grant.
3. The Appellant advanced the following grounds in support of the Memorandum of Appeal:
(1) That the Learned Magistrate erred in law and in fact in failing to apply the paramount principle of best interests of the children by failing to grant actual custody of the minors to the appellant in the absence of the respondent.
(2) That the learned Magistrate erred in law and fact by failing to apply the provisions of Section 32 (4) of the Children’s Act 2022 with regards to the respondent’s relinquishment of parental responsibility.
(3) That the learned Magistrate erred in law by failing to appreciate and/or apply Section 115 of the Children’s Act 2022 in relation to the review of maintenance orders.
(4) That the learned magistrate erred in fact and in law by failing to uphold the principal of equal parental responsibility thereby diminishing the appellant’s rights.
(5) That the learned magistrate erred in fact and in law by applying the wrong principles of law and in particular judicial discretion thereby arriving at a wrong decision.
4. The Appellant’s case is that the Respondent left jurisdiction and relocated to Australia. The Children were left under the custody of her mother and sibling. As the natural parent within jurisdiction, he should have the physical custody.
5. That the Trial Court ought to have granted the Appellant full access seeing that he was the only parent who was within jurisdiction. That had the Trial Court been aware that the Respondent would be leaving jurisdiction soon, it would have granted physical custody to the Appellant.
6. That the departure of Respondent created a change in circumstance of how the children were living and with whom. This would warrant the Trial Court to interfere with its earlier custody orders by way of Review.
Respondent’s Cross-Appeal
7. The Respondent’s Amended Cross-appeal amended on 27th August, 2025 seeks the following reliefs:
(1) THAT the cross- appeal be allowed and the appeal filed by the Appellant be dismissed.
(2) THAT the orders of custody issued in the ruling and order whereby the father’s access to the children is limited to alternate Saturdays from 9am- 5Pm to grant the children enjoy their constitutional right of worship.
(3) THAT the Cross- Appellant be awarded costs in the lower court, the appeal, the cross-appeal and the interests thereof,
(4) Any other relief that this Honourable Court may deem fit to grant.
8. The Respondent advanced the following grounds in support of her Cross-appeal.
(1) THAT the Learned Magistrate erred in law and in fact by failing to consider the care and responsibility of a parent to allow the children to enjoy their right of worship.
(2) THAT the Learned Magistrate erred in law and in fact by failing to consider that the court had already considers all factors and allowed the mother & father access to the children whereby the father had limited unsupervised access on alternate Saturdays from 9:00 Am - 5:00 Pm and 1/2 of the holiday.
(3) THAT the Learned Magistrate erred in law and in fact by failing to consider that the children need assistance with doing their homework.
(4) THAT the Learned Magistrate erred in law and in fact by failing to consider that the children are of tender age and need close supervision.
(5) THAT the Learned Magistrate erred in law and in fact by failing to consider that the Appellant/Father is a drunkard and not responsible enough to be with the children overnight.
9. The Respondent, in her affidavit, contended that there existed no justifiable basis for granting custody of the minors to the Appellant, as had been ordered in the Ruling delivered on 13th May 2024. She deponed that the children resided under the care and supervision of her mother, her brother, and a house help. That they all actively assisted the minors—particularly the 1st and 2nd issues—in completing their homework and school assignments. She further averred that her mother, being a retired nurse, was well-equipped to attend to the needs of the youngest child in the matter. That therefore her mother was therefore best suited to provide day-to-day care.
10. The Respondent also stated that she maintained daily contact with the children through phone and video calls, during which she received regular updates on their academic performance and overall well-being. In contrast, she asserted that the Appellant had shown minimal to no involvement in the academic lives of the children, failed to participate in school activities, and generally exhibited no interest in their schooling, as demonstrated by the pleadings filed before the Trial Court.
11. It was the Respondent’s assertion that the Appellant was exceedingly occupied, being an employee of the Murang’a County Government, operating a private dental clinic, and concurrently undertaking a five-year academic program. These competing obligations, she contended, significantly limited his availability. The Trial Court had duly taken note of these constraints when it granted the Appellant access to the minors on alternate Saturdays.
12. The Respondent further stated that, prior to the Ruling delivered on 13th May 2024, the Appellant had consistently failed to collect or spend time with the minors even on the Saturdays when he had access. As such, she contended that the Appellant had not approached this Appellate Court with clean hands. That the Appeal had been instituted with the ulterior
motive of defeating the ends of justice.
13. The Respondent also averred that her physical absence did not adversely affect the welfare of the children. She maintained that she had made adequate and deliberate arrangements to ensure their safety, comfort, and emotional stability during her periods of absence.
14. The Respondent expressed grievance that since the Ruling dated 13th May 2024, the children had not been taken to church, contrary to their established routine of attending church services every Sunday. She contended that this omission infringed upon the children’s constitutional right to freedom of worship and spiritual development, which she emphasized as essential to their holistic growth.
15. Regarding school-related activities, the Respondent stated that the Appellant had consistently demonstrated a lack of involvement. She particularly highlighted that the 1st issue, being a male child, had not received adequate paternal attention or guidance from the Appellant, who, in her view, had failed to exhibit the qualities of a responsible father.
16. The Respondent further stated that since the Appellant began exercising visitation rights after 13th May 2024, he has failed to personally pick the children, instead sending his mother to do so. Consequently, the children have spent entire weekends in the care of their grandmother rather than with the Appellant. She averred that, on occasions when the Appellant did take custody of the children, they were made to sleep on the floor due to his failure to provide basic necessities such as beds. The Respondent alleged a lack of adequate care, including insufficient supervision, inadequate feeding, grooming, bathing, and washing of clothes. The Respondent asserted that only after the ruling had the Appellant started exercising his visitation rights, albeit in a manner detrimental to the children’s welfare. She cited instances of neglect and absence of church attendance during the weekends in question.
17. The Respondent also contended that the Appellant posed a risk to the children’s well-being, alleging that he consumed alcohol even when in their presence. She maintained that the Appellant has never assisted the children with their school assignments. That on the rare occasion he attempted to do so, he exhibited impatience and lost his temper. Thereby demonstrating a lack of suitable paternal care and responsibility.
18. The Respondent further averred that since the Ruling delivered on 13th May 2024, the Appellant had taken the children for a treat on only one occasion, specifically during a visit to a shopping mall. She urged the Court to give paramount consideration to the best interests and welfare of the children.
19. The Respondent also lamented that, since the children commenced school, the Appellant had attended only one school closing day meeting. That he had failed to participate in any Parents’ Day meetings. Additionally, she contended that the Appellant did not follow up on the children’s academic progress or general well-being.
20. The Respondent challenged the procedural validity of the Appeal, submitting that no notice of Appeal had been filed. That the Appeal was lodged out of time without the requisite leave of the Court. Thus, the Appeal was defective, bad in law, instituted in bad faith, and therefore unsustainable.
21. Finally, the Respondent urged the Court to find that the Appellant had failed to take the children for entertainment pick them up during holiday periods. Even when granted shared holiday custody, the Appellant allegedly failed to pick up the children as agreed.
Appellant’s Submissions
22. The Court has considered the Appellant’s submissions dated 15th November 2024.
23. The Appellant submitted that, in determining whether he should be granted actual custody, care, and control of the minors, the Court must consider the Respondent’s decision to leave the jurisdiction for Australia. Hence leaving the minors in the care of her brother. The Appellant contended that this arrangement compromises the safety of the children and deprives them of their right to parental care and protection. He referred to Article 53 of the Constitution of Kenya, which enshrines the best interests of the child, including the right to parental care and protection, as well as Section 11 of the Children’s Act, 2022, and Article 19 of the African Charter on the Rights and Welfare of the Child. The appellant noted that joint custody of the minors was vested in both parties by the Trial Court. However, given the Respondent’s admission that she is pursuing studies abroad for a period of two to three years, the Trial Court’s decision to vest legal custody jointly implies that, in the Respondent’s absence, the Appellant is best suited to care for the minors. The Appellant argued that this further illustrates the Respondent’s unsettled position and unreadiness to fulfill parental responsibilities. Reliance was placed on the Court of Appeal decision in JO v SAO (2016) eKLR.
24. The Appellant submits that he is capable of adequately caring for the children, who have suffered undue disruption due to the Respondent’s extended stay in Australia and being left in the care of the Respondent’s brother and a house-help. The Appellant further submits that the children’s only meaningful parental interaction occurs during weekends when he collects them. He contends that such circumstances are not conducive to the proper upbringing of three children of tender years. Reliance is placed on the decision of Justice Joel Ngugi, J in JKN v HWN [2019] eKLR.
25. The Appellant also submitted that the Respondent, being the mother, had strayed from her parental obligations and therefore could not be permitted to enjoy custodial rights while residing in Australia. It was noted that the minors subject to the matter—namely a boy, E.M., aged 10 years, and two girls, A.W. and A.M., aged 6 and 2 years respectively—were at critical formative stages of their lives. When the Trial Court initially delivered its judgment, subsequently amended, both parents were within the jurisdiction of the court. The Appellant did not seek full custody prior to the judgment delivered on 14th June 2023, as the respondent was present and there was no indication that she would leave the jurisdiction for an extended period. The Appellant later moved the Trial Court to grant him full custody on the basis of the Respondent’s absence; however, the Trial Court instead extended the appellant’s access by granting an additional day and ordering that the Appellant have custody of the minors every weekend, from Saturday 8:00 a.m. to Sunday 5:00 p.m.
26. It would not have been fair to the minors to continue living in an unstable environment where they had access to their father only on weekends, while the mother continued to enjoy custodial rights despite being outside the jurisdiction of this Court. Such a scenario deprived the minors of their right to consistent care and nurturing by both parents. This is notwithstanding that the original custody orders were issued in the best interests of the children at the time. However, circumstances had since changed, warranting a review of the custodial orders. The continued absence of the Respondent posed a clear risk to the minors’ wellbeing, a situation that could only be remedied by the Appellant assuming the parental duties, obligations, and responsibilities which the Respondent had effectively relinquished.
27. It was therefore in the interest of justice and the wellbeing of the minors, and in their best interests, that the Appellant be granted actual custody of the minors due to the Respondent’s absence.
Respondent’s Submissions
28. The Court has duly considered the Respondent’s submissions dated 26th November 2024.
29. With regard to the issue of whether the Appellant ought to be granted legal and actual custody of the minors, while the Respondent be granted limited access, the Respondent submits that the minors are currently under her custody and are being adequately cared for. It is the Respondent’s position that the Applicant poses a threat to the safety and well-being of both the minors and the Respondent herself. This is evidenced by the contents of the Occurrence Book (OB) entry marked as “MGM-4” annexed to the Further Affidavit of the Respondent dated 6th December 2022, which forms part of the Record of Appeal.
30. The Respondent further avers that the Applicant has a history of excessive alcohol consumption and general irresponsibility, rendering him a serious threat to the lives of the minors. The Applicant is said to have abdicated his parental responsibilities and has on several occasions issued threats to harm or kill both the minors and the Respondent.
31. The Respondent further submitted that, as a result of the repeated death threats, the Applicant’s excessive alcohol abuse, and his persistent irresponsibility—culminating in the abandonment of his parental duties—she found it necessary to relocate with the minors in order to ensure their safety and well-being.
32. The Respondent maintained that the best interests of the children are best served under her custody. She emphasized that threats of violence against minors and their caregivers should not be taken lightly. This is because history has demonstrated that cold-blooded murders often originate from such threats. In the present case, the Appellant is alleged to have issued multiple threats to the lives of both the Respondent and the minors, prompting their relocation in search of a secure environment.
33. The Respondent further submitted that the Trial Court duly considered these factors before issuing its orders. She contended that there was no error in the Trial Court’s determination, as the underlying facts and circumstances remain unchanged. Additionally, the Respondent relied on a well-established principle in custody matters: absent exceptional circumstances, the custody of children of tender years should, as a prima facie rule, be granted to the mother. In support of this position, the Respondent cited the decision in Re S (an Infant) [1958] 1 All ER 783 at 786–787, as quoted with approval in the Court of Appeal’s judgment in the Githunguri Case, and urged this Honourable Court to uphold the Trial Court’s orders in recognition of the minors' tender ages.
34. The Respondent further submitted that since the delivery of the Ruling, she has consistently discharged her parental responsibilities, notwithstanding any temporary physical absence. She reiterated the contents of the Supporting Affidavit dated 27th August 2024 and highlighted the following concerns. The Appellant has been in contempt of Court by failing to provide for the minors. The minors are not adequately groomed or fed during periods when they are in the Appellant’s care. The Appellant often arranges for third parties to collect the minors and, on several occasions, has left them unattended. The minors have reported instances where they were compelled to sleep on the floor over the weekend, were not properly groomed, and in some cases went an entire weekend without bathing.
35. These reports, which the Respondent receives from the minors themselves upon their return, are deeply distressing. The Appellant has not contested his inability to assist the minors with their academics and school assignments. Granting him actual custody would, in the Respondent’s view, significantly undermine the minors’ educational progress. In contrast, while in her custody, the Respondent ensures that the children receive academic support from her mother and brother, who also attend their school functions.
36. Moreover, the Appellant has not denied his failure to facilitate the minors’ participation in church or religious activities. As deposed in the Supporting Affidavit, the Respondent contends that unless the Cross-appeal is allowed, the minors’ right to freedom of worship will be unjustifiably curtailed. The Respondent submits that, given the prevailing moral and spiritual climate, no parent can afford to neglect the spiritual upbringing of their children. Consequently, the Respondent urges the Court to review the current order to, at a minimum, permit the minors to attend church and fellowship on Sundays.
37. The Respondent submitted that she maintains daily communication with the minors, who keep her informed about their welfare and day-to-day experiences. She emphasized that her temporary absence from the country for academic pursuits has not adversely affected the close bond she shares with the children. Moreover, the Respondent makes frequent visits to Kenya to spend time with the minors and was, in fact, in the country a few weeks prior to the making of these submissions.
38. The Respondent further noted that the Appellant is equally engaged in both work and studies and had, during the trial, acknowledged the demands of his schedule. No new or material change in circumstances has occurred since the issuance of the Trial Court’s orders. The Respondent therefore submits that the Trial Court properly evaluated all relevant factors before granting her actual custody. She also informed the Court that she is expected to return permanently to Kenya within a period of less than twenty-two (22) months.
39. The Respondent additionally submitted that physical presence alone is not the sole determinant in custody matters. Despite her partial absence, the minors have not experienced any neglect or emotional detachment. Conversely, the Appellant has neither demonstrated nor expressed a genuine commitment to fulfilling his parental responsibilities in the event that actual custody is granted to him. The Respondent contends that, even on the few occasions when the Appellant has been with the minors, he has consistently failed to meet his obligations as a parent.
40. The Respondent submitted that the Appellant has failed to demonstrate how he would ensure the proper care and supervision of the minors, particularly given his own admission that he holds two jobs while simultaneously pursuing his studies. The Respondent posed the critical questions: where would the minors reside, and under whose direct supervision would they be placed? She noted that the Appellant had previously indicated he would entrust the care of the minors to his mother—an arrangement no different from the support system currently in place for the Respondent.
41. In light of this, the Respondent questioned the justification for disturbing the Trial Court’s orders on actual custody, emphasizing that those orders were not punitive in nature but rather precautionary, intended to safeguard the minors' rights and promote their best interests—an obligation this Honourable Court is constitutionally and legally bound to uphold.
42. The Respondent urged this Honourable Court to give due consideration to the academic welfare, safety, health, grooming, and overall well-being of the minors, as well as their right to worship. She submits these have been safeguarded under her custody. She emphasized that the Appellant’s demanding work and academic schedule, his alleged abusive conduct and substance use, and his failure to fulfill parental responsibilities—including acts of contempt of Court—render him unsuitable for actual custody. She further submitted that the minors have continued to receive consistent and proper care since the Trial Court’s ruling, and therefore prayed that the orders on custody be upheld in the best interests of the children.
Issues For Determination
43. The Court has carefully considered the pleadings, affidavits, and written submissions filed before this Honourable Court. Arising therefrom, the following issues fall for determination:
(i) Whether the Appeal was filed out of time without leave.
(ii) Who should have custody of the minors? And
(iii) Whether the learned Magistrate erred in failing to review and vary the existing maintenance orders in light of the material evidence presented before the Trial Court.
(iv) Whether the orders sought in the Cross- Appeal are merited.
Analysis
43. As the first Appellate Court, this Court is duty-bound to re-evaluate and re-analyze the evidence adduced before the subordinate court, as well as the findings and judgment thereof, and to arrive at its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses firsthand.
44. In Mursal & Another v Manese (suing as the legal administrator of the estate of Daphine Kanini Manesa) [2021] KEHC 282 (KLR); Civil Appeal No. E020 of 2021, Mativo J (as he then was) observed as follows: –
“A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses fast hand. This duty was stated in Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) EA 123 and in Peters versus Sunday Post Limited (1958) EA 424.”
45. A similar position was adopted by this Court in NABK v JSZ [2023] KEHC 20466 (KLR); Family Appeal No. 32 of 2022 (Judgment delivered on 12 July 2023).
“As the first appellate Court I am mandated to re-evaluate the evidence before the subordinate court as well as the judgment and arrive at my own independent judgment…….
In considering this matter I will scrutinize the facts and the law. In doing so I will take into account the fact that I did not have the opportunity of observing the demeanor of the witnesses and give due allowance.”
46. In view of the fact that this matter pertains to issues of child custody and maintenance, this Court is guided by the following statutory and constitutional provisions.
47. Article 53(2) of the Constitution provides that
A child best interests are of paramount importance in every matter concerning the child.
48. Section 8 of the Children Act, (CAP 141) provides that: -
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a)the best interests of the child shall be the primary consideration;
(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 19 No. 29 of 2022 Children
(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.
(4) The Cabinet Secretary shall issue guidelines to give effect to this section.
49. In considering this matter, the Court shall evaluate both the facts and the applicable law. In doing so, the Court will be mindful of the fact that it did not have the benefit of observing the demeanour of the witnesses firsthand and will therefore accord due allowance in that regard.
(i) Whether the Appeal was filed out of time without leave.
50. The Court refers to the decision in Kabaru & Another v Maina [2024] KEHC 10644 (KLR); Civil Appeal No. E172 of 2023 (Judgment delivered on 11 September 2024), the Court observed as follows: –
“The issue whether the appeal is competent, goes to the substratum of the matter and need to be settled in limine as it goes to the jurisdiction of the court. Any matter touching on the jurisdiction attracts a determination suo moto even where a party fails to address it either consciously or unconsciously.”
51. This being a Court of record, this Court takes note that the judgment of the lower Court was delivered on 15th May 2024. If the Appellants were dissatisfied with that decision, they were required to file a Memorandum of Appeal within thirty (30). Upon perusal of the record, this Court finds that the Memorandum of Appeal was filed within the prescribed timelines. The Appellants’ memorandum of appeal is dated 24th May 2024, while the cross-appeal is dated 25th May 2024—both having been filed within time. Consequently, the Respondent’s contention that the appeal is incompetent is without merit and must fail. The Court shall therefore proceed to consider the Appeal on its merits.
(ii) Who Should Have Custody of The Minors?
52. Section 2 of the Children Act (Cap 141) defines custody as
"custody" means lawful custody, whether by operation of law, written agreement or order of a Court of competent jurisdiction;
53. The same section defines actual custody as;
"Actual custody" means the physical possession, care and control over a child, whether or not such custody is exercised independently or jointly with another
person;
54. Article 19 of the African Charter on Rights and Welfare of the Child states that
“every child is entitled to parental care and protection and shall whenever possible reside with his or her parents”
55. Honourable Justice Musinga (as he was then), in J.O v R.M.N [2005] KEHC 1835 (KLR), elaborated on the concept of “actual custody” in the following terms:
“Actual custody is defined to mean the actual possession of the person of the child as opposed to legal custody which means as respects a child, so much so much of parental rights and duties and as to the person of the child including the place and manner in which time is spent”.
56. Black’s Law Dictionary (10th Edition) defines “legal custody” as follows:
“The authority to make significant decisions on a child’s behalf including decision about education religious training and healthcare”.
57. Custody thus comprises two distinct aspects: legal custody and actual custody, as defined above. Legal custody includes, inter alia, the authority to make decisions affecting the child’s welfare, such as matters of education, religious upbringing, healthcare, and generally encompasses parental rights and responsibilities.
58. The Court is persuaded that the Trial Court appropriately awarded joint legal custody to both parents. This Court, in P.W.M v C.M.M [2015] KEHC 6457 (KLR), held as follows:
“In the absence of any adverse conduct of any of the parents of the children of the marriage or any exceptional circumstances that adversely impact the welfare of the children of the marriage… both parents have joint legal custody of the children of the marriage …”
59. Parenting is fundamentally a joint and equal responsibility, precluding either parent from asserting superior rights over the child. This responsibility requires both parents to recognise and embrace their equal duty to support, care for, and protect the child, irrespective of their marital status. Parents are vested with distinct powers and authority over their children and their property, which must be exercised in a manner that respects the child’s evolving capacity.
60. This responsibility extends to the duty to maintain the children, which includes providing for their basic needs such as food, shelter, clothing, medical care, education, and general guidance. Our courts, guided by
[...truncated]
(Being an appeal against the ruling and order of Hon. C. Mwaniki (Principal Magistrate) delivered on 13th May 2024 in Ruiru Senior Principal Magistrate’s Court, Children’s Case No. E056 of 2022.)
1. This is a judgment in respect of the Appellant’s Appeal dated 24th May 2024 and the Respondent’s Cross-appeal dated 10th July 2024, as further amended on 27th August 2024. The Appeals arise from the Ruling and order of Hon. C. Mwaniki (Principal Magistrate) delivered on 13th May 2024. This is in respect to Ruiru Senior Principal Magistrate’s Court, Children’s Case No. E056 of 2022.
Appellant’s Appeal
2. The Appellant sought the following orders:
(1) That the appeal herein be allowed.
(2) That the ruling and order issued on 15th May 2024 be set aside.
(3) That actual custody, care and control of the minors E.M, A.W and A.M be granted to the appellant.
(4) Any other and such further relief as the court may deem just and fit to grant.
3. The Appellant advanced the following grounds in support of the Memorandum of Appeal:
(1) That the Learned Magistrate erred in law and in fact in failing to apply the paramount principle of best interests of the children by failing to grant actual custody of the minors to the appellant in the absence of the respondent.
(2) That the learned Magistrate erred in law and fact by failing to apply the provisions of Section 32 (4) of the Children’s Act 2022 with regards to the respondent’s relinquishment of parental responsibility.
(3) That the learned Magistrate erred in law by failing to appreciate and/or apply Section 115 of the Children’s Act 2022 in relation to the review of maintenance orders.
(4) That the learned magistrate erred in fact and in law by failing to uphold the principal of equal parental responsibility thereby diminishing the appellant’s rights.
(5) That the learned magistrate erred in fact and in law by applying the wrong principles of law and in particular judicial discretion thereby arriving at a wrong decision.
4. The Appellant’s case is that the Respondent left jurisdiction and relocated to Australia. The Children were left under the custody of her mother and sibling. As the natural parent within jurisdiction, he should have the physical custody.
5. That the Trial Court ought to have granted the Appellant full access seeing that he was the only parent who was within jurisdiction. That had the Trial Court been aware that the Respondent would be leaving jurisdiction soon, it would have granted physical custody to the Appellant.
6. That the departure of Respondent created a change in circumstance of how the children were living and with whom. This would warrant the Trial Court to interfere with its earlier custody orders by way of Review.
Respondent’s Cross-Appeal
7. The Respondent’s Amended Cross-appeal amended on 27th August, 2025 seeks the following reliefs:
(1) THAT the cross- appeal be allowed and the appeal filed by the Appellant be dismissed.
(2) THAT the orders of custody issued in the ruling and order whereby the father’s access to the children is limited to alternate Saturdays from 9am- 5Pm to grant the children enjoy their constitutional right of worship.
(3) THAT the Cross- Appellant be awarded costs in the lower court, the appeal, the cross-appeal and the interests thereof,
(4) Any other relief that this Honourable Court may deem fit to grant.
8. The Respondent advanced the following grounds in support of her Cross-appeal.
(1) THAT the Learned Magistrate erred in law and in fact by failing to consider the care and responsibility of a parent to allow the children to enjoy their right of worship.
(2) THAT the Learned Magistrate erred in law and in fact by failing to consider that the court had already considers all factors and allowed the mother & father access to the children whereby the father had limited unsupervised access on alternate Saturdays from 9:00 Am - 5:00 Pm and 1/2 of the holiday.
(3) THAT the Learned Magistrate erred in law and in fact by failing to consider that the children need assistance with doing their homework.
(4) THAT the Learned Magistrate erred in law and in fact by failing to consider that the children are of tender age and need close supervision.
(5) THAT the Learned Magistrate erred in law and in fact by failing to consider that the Appellant/Father is a drunkard and not responsible enough to be with the children overnight.
9. The Respondent, in her affidavit, contended that there existed no justifiable basis for granting custody of the minors to the Appellant, as had been ordered in the Ruling delivered on 13th May 2024. She deponed that the children resided under the care and supervision of her mother, her brother, and a house help. That they all actively assisted the minors—particularly the 1st and 2nd issues—in completing their homework and school assignments. She further averred that her mother, being a retired nurse, was well-equipped to attend to the needs of the youngest child in the matter. That therefore her mother was therefore best suited to provide day-to-day care.
10. The Respondent also stated that she maintained daily contact with the children through phone and video calls, during which she received regular updates on their academic performance and overall well-being. In contrast, she asserted that the Appellant had shown minimal to no involvement in the academic lives of the children, failed to participate in school activities, and generally exhibited no interest in their schooling, as demonstrated by the pleadings filed before the Trial Court.
11. It was the Respondent’s assertion that the Appellant was exceedingly occupied, being an employee of the Murang’a County Government, operating a private dental clinic, and concurrently undertaking a five-year academic program. These competing obligations, she contended, significantly limited his availability. The Trial Court had duly taken note of these constraints when it granted the Appellant access to the minors on alternate Saturdays.
12. The Respondent further stated that, prior to the Ruling delivered on 13th May 2024, the Appellant had consistently failed to collect or spend time with the minors even on the Saturdays when he had access. As such, she contended that the Appellant had not approached this Appellate Court with clean hands. That the Appeal had been instituted with the ulterior
motive of defeating the ends of justice.
13. The Respondent also averred that her physical absence did not adversely affect the welfare of the children. She maintained that she had made adequate and deliberate arrangements to ensure their safety, comfort, and emotional stability during her periods of absence.
14. The Respondent expressed grievance that since the Ruling dated 13th May 2024, the children had not been taken to church, contrary to their established routine of attending church services every Sunday. She contended that this omission infringed upon the children’s constitutional right to freedom of worship and spiritual development, which she emphasized as essential to their holistic growth.
15. Regarding school-related activities, the Respondent stated that the Appellant had consistently demonstrated a lack of involvement. She particularly highlighted that the 1st issue, being a male child, had not received adequate paternal attention or guidance from the Appellant, who, in her view, had failed to exhibit the qualities of a responsible father.
16. The Respondent further stated that since the Appellant began exercising visitation rights after 13th May 2024, he has failed to personally pick the children, instead sending his mother to do so. Consequently, the children have spent entire weekends in the care of their grandmother rather than with the Appellant. She averred that, on occasions when the Appellant did take custody of the children, they were made to sleep on the floor due to his failure to provide basic necessities such as beds. The Respondent alleged a lack of adequate care, including insufficient supervision, inadequate feeding, grooming, bathing, and washing of clothes. The Respondent asserted that only after the ruling had the Appellant started exercising his visitation rights, albeit in a manner detrimental to the children’s welfare. She cited instances of neglect and absence of church attendance during the weekends in question.
17. The Respondent also contended that the Appellant posed a risk to the children’s well-being, alleging that he consumed alcohol even when in their presence. She maintained that the Appellant has never assisted the children with their school assignments. That on the rare occasion he attempted to do so, he exhibited impatience and lost his temper. Thereby demonstrating a lack of suitable paternal care and responsibility.
18. The Respondent further averred that since the Ruling delivered on 13th May 2024, the Appellant had taken the children for a treat on only one occasion, specifically during a visit to a shopping mall. She urged the Court to give paramount consideration to the best interests and welfare of the children.
19. The Respondent also lamented that, since the children commenced school, the Appellant had attended only one school closing day meeting. That he had failed to participate in any Parents’ Day meetings. Additionally, she contended that the Appellant did not follow up on the children’s academic progress or general well-being.
20. The Respondent challenged the procedural validity of the Appeal, submitting that no notice of Appeal had been filed. That the Appeal was lodged out of time without the requisite leave of the Court. Thus, the Appeal was defective, bad in law, instituted in bad faith, and therefore unsustainable.
21. Finally, the Respondent urged the Court to find that the Appellant had failed to take the children for entertainment pick them up during holiday periods. Even when granted shared holiday custody, the Appellant allegedly failed to pick up the children as agreed.
Appellant’s Submissions
22. The Court has considered the Appellant’s submissions dated 15th November 2024.
23. The Appellant submitted that, in determining whether he should be granted actual custody, care, and control of the minors, the Court must consider the Respondent’s decision to leave the jurisdiction for Australia. Hence leaving the minors in the care of her brother. The Appellant contended that this arrangement compromises the safety of the children and deprives them of their right to parental care and protection. He referred to Article 53 of the Constitution of Kenya, which enshrines the best interests of the child, including the right to parental care and protection, as well as Section 11 of the Children’s Act, 2022, and Article 19 of the African Charter on the Rights and Welfare of the Child. The appellant noted that joint custody of the minors was vested in both parties by the Trial Court. However, given the Respondent’s admission that she is pursuing studies abroad for a period of two to three years, the Trial Court’s decision to vest legal custody jointly implies that, in the Respondent’s absence, the Appellant is best suited to care for the minors. The Appellant argued that this further illustrates the Respondent’s unsettled position and unreadiness to fulfill parental responsibilities. Reliance was placed on the Court of Appeal decision in JO v SAO (2016) eKLR.
24. The Appellant submits that he is capable of adequately caring for the children, who have suffered undue disruption due to the Respondent’s extended stay in Australia and being left in the care of the Respondent’s brother and a house-help. The Appellant further submits that the children’s only meaningful parental interaction occurs during weekends when he collects them. He contends that such circumstances are not conducive to the proper upbringing of three children of tender years. Reliance is placed on the decision of Justice Joel Ngugi, J in JKN v HWN [2019] eKLR.
25. The Appellant also submitted that the Respondent, being the mother, had strayed from her parental obligations and therefore could not be permitted to enjoy custodial rights while residing in Australia. It was noted that the minors subject to the matter—namely a boy, E.M., aged 10 years, and two girls, A.W. and A.M., aged 6 and 2 years respectively—were at critical formative stages of their lives. When the Trial Court initially delivered its judgment, subsequently amended, both parents were within the jurisdiction of the court. The Appellant did not seek full custody prior to the judgment delivered on 14th June 2023, as the respondent was present and there was no indication that she would leave the jurisdiction for an extended period. The Appellant later moved the Trial Court to grant him full custody on the basis of the Respondent’s absence; however, the Trial Court instead extended the appellant’s access by granting an additional day and ordering that the Appellant have custody of the minors every weekend, from Saturday 8:00 a.m. to Sunday 5:00 p.m.
26. It would not have been fair to the minors to continue living in an unstable environment where they had access to their father only on weekends, while the mother continued to enjoy custodial rights despite being outside the jurisdiction of this Court. Such a scenario deprived the minors of their right to consistent care and nurturing by both parents. This is notwithstanding that the original custody orders were issued in the best interests of the children at the time. However, circumstances had since changed, warranting a review of the custodial orders. The continued absence of the Respondent posed a clear risk to the minors’ wellbeing, a situation that could only be remedied by the Appellant assuming the parental duties, obligations, and responsibilities which the Respondent had effectively relinquished.
27. It was therefore in the interest of justice and the wellbeing of the minors, and in their best interests, that the Appellant be granted actual custody of the minors due to the Respondent’s absence.
Respondent’s Submissions
28. The Court has duly considered the Respondent’s submissions dated 26th November 2024.
29. With regard to the issue of whether the Appellant ought to be granted legal and actual custody of the minors, while the Respondent be granted limited access, the Respondent submits that the minors are currently under her custody and are being adequately cared for. It is the Respondent’s position that the Applicant poses a threat to the safety and well-being of both the minors and the Respondent herself. This is evidenced by the contents of the Occurrence Book (OB) entry marked as “MGM-4” annexed to the Further Affidavit of the Respondent dated 6th December 2022, which forms part of the Record of Appeal.
30. The Respondent further avers that the Applicant has a history of excessive alcohol consumption and general irresponsibility, rendering him a serious threat to the lives of the minors. The Applicant is said to have abdicated his parental responsibilities and has on several occasions issued threats to harm or kill both the minors and the Respondent.
31. The Respondent further submitted that, as a result of the repeated death threats, the Applicant’s excessive alcohol abuse, and his persistent irresponsibility—culminating in the abandonment of his parental duties—she found it necessary to relocate with the minors in order to ensure their safety and well-being.
32. The Respondent maintained that the best interests of the children are best served under her custody. She emphasized that threats of violence against minors and their caregivers should not be taken lightly. This is because history has demonstrated that cold-blooded murders often originate from such threats. In the present case, the Appellant is alleged to have issued multiple threats to the lives of both the Respondent and the minors, prompting their relocation in search of a secure environment.
33. The Respondent further submitted that the Trial Court duly considered these factors before issuing its orders. She contended that there was no error in the Trial Court’s determination, as the underlying facts and circumstances remain unchanged. Additionally, the Respondent relied on a well-established principle in custody matters: absent exceptional circumstances, the custody of children of tender years should, as a prima facie rule, be granted to the mother. In support of this position, the Respondent cited the decision in Re S (an Infant) [1958] 1 All ER 783 at 786–787, as quoted with approval in the Court of Appeal’s judgment in the Githunguri Case, and urged this Honourable Court to uphold the Trial Court’s orders in recognition of the minors' tender ages.
34. The Respondent further submitted that since the delivery of the Ruling, she has consistently discharged her parental responsibilities, notwithstanding any temporary physical absence. She reiterated the contents of the Supporting Affidavit dated 27th August 2024 and highlighted the following concerns. The Appellant has been in contempt of Court by failing to provide for the minors. The minors are not adequately groomed or fed during periods when they are in the Appellant’s care. The Appellant often arranges for third parties to collect the minors and, on several occasions, has left them unattended. The minors have reported instances where they were compelled to sleep on the floor over the weekend, were not properly groomed, and in some cases went an entire weekend without bathing.
35. These reports, which the Respondent receives from the minors themselves upon their return, are deeply distressing. The Appellant has not contested his inability to assist the minors with their academics and school assignments. Granting him actual custody would, in the Respondent’s view, significantly undermine the minors’ educational progress. In contrast, while in her custody, the Respondent ensures that the children receive academic support from her mother and brother, who also attend their school functions.
36. Moreover, the Appellant has not denied his failure to facilitate the minors’ participation in church or religious activities. As deposed in the Supporting Affidavit, the Respondent contends that unless the Cross-appeal is allowed, the minors’ right to freedom of worship will be unjustifiably curtailed. The Respondent submits that, given the prevailing moral and spiritual climate, no parent can afford to neglect the spiritual upbringing of their children. Consequently, the Respondent urges the Court to review the current order to, at a minimum, permit the minors to attend church and fellowship on Sundays.
37. The Respondent submitted that she maintains daily communication with the minors, who keep her informed about their welfare and day-to-day experiences. She emphasized that her temporary absence from the country for academic pursuits has not adversely affected the close bond she shares with the children. Moreover, the Respondent makes frequent visits to Kenya to spend time with the minors and was, in fact, in the country a few weeks prior to the making of these submissions.
38. The Respondent further noted that the Appellant is equally engaged in both work and studies and had, during the trial, acknowledged the demands of his schedule. No new or material change in circumstances has occurred since the issuance of the Trial Court’s orders. The Respondent therefore submits that the Trial Court properly evaluated all relevant factors before granting her actual custody. She also informed the Court that she is expected to return permanently to Kenya within a period of less than twenty-two (22) months.
39. The Respondent additionally submitted that physical presence alone is not the sole determinant in custody matters. Despite her partial absence, the minors have not experienced any neglect or emotional detachment. Conversely, the Appellant has neither demonstrated nor expressed a genuine commitment to fulfilling his parental responsibilities in the event that actual custody is granted to him. The Respondent contends that, even on the few occasions when the Appellant has been with the minors, he has consistently failed to meet his obligations as a parent.
40. The Respondent submitted that the Appellant has failed to demonstrate how he would ensure the proper care and supervision of the minors, particularly given his own admission that he holds two jobs while simultaneously pursuing his studies. The Respondent posed the critical questions: where would the minors reside, and under whose direct supervision would they be placed? She noted that the Appellant had previously indicated he would entrust the care of the minors to his mother—an arrangement no different from the support system currently in place for the Respondent.
41. In light of this, the Respondent questioned the justification for disturbing the Trial Court’s orders on actual custody, emphasizing that those orders were not punitive in nature but rather precautionary, intended to safeguard the minors' rights and promote their best interests—an obligation this Honourable Court is constitutionally and legally bound to uphold.
42. The Respondent urged this Honourable Court to give due consideration to the academic welfare, safety, health, grooming, and overall well-being of the minors, as well as their right to worship. She submits these have been safeguarded under her custody. She emphasized that the Appellant’s demanding work and academic schedule, his alleged abusive conduct and substance use, and his failure to fulfill parental responsibilities—including acts of contempt of Court—render him unsuitable for actual custody. She further submitted that the minors have continued to receive consistent and proper care since the Trial Court’s ruling, and therefore prayed that the orders on custody be upheld in the best interests of the children.
Issues For Determination
43. The Court has carefully considered the pleadings, affidavits, and written submissions filed before this Honourable Court. Arising therefrom, the following issues fall for determination:
(i) Whether the Appeal was filed out of time without leave.
(ii) Who should have custody of the minors? And
(iii) Whether the learned Magistrate erred in failing to review and vary the existing maintenance orders in light of the material evidence presented before the Trial Court.
(iv) Whether the orders sought in the Cross- Appeal are merited.
Analysis
43. As the first Appellate Court, this Court is duty-bound to re-evaluate and re-analyze the evidence adduced before the subordinate court, as well as the findings and judgment thereof, and to arrive at its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses firsthand.
44. In Mursal & Another v Manese (suing as the legal administrator of the estate of Daphine Kanini Manesa) [2021] KEHC 282 (KLR); Civil Appeal No. E020 of 2021, Mativo J (as he then was) observed as follows: –
“A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses fast hand. This duty was stated in Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) EA 123 and in Peters versus Sunday Post Limited (1958) EA 424.”
45. A similar position was adopted by this Court in NABK v JSZ [2023] KEHC 20466 (KLR); Family Appeal No. 32 of 2022 (Judgment delivered on 12 July 2023).
“As the first appellate Court I am mandated to re-evaluate the evidence before the subordinate court as well as the judgment and arrive at my own independent judgment…….
In considering this matter I will scrutinize the facts and the law. In doing so I will take into account the fact that I did not have the opportunity of observing the demeanor of the witnesses and give due allowance.”
46. In view of the fact that this matter pertains to issues of child custody and maintenance, this Court is guided by the following statutory and constitutional provisions.
47. Article 53(2) of the Constitution provides that
A child best interests are of paramount importance in every matter concerning the child.
48. Section 8 of the Children Act, (CAP 141) provides that: -
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a)the best interests of the child shall be the primary consideration;
(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 19 No. 29 of 2022 Children
(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.
(4) The Cabinet Secretary shall issue guidelines to give effect to this section.
49. In considering this matter, the Court shall evaluate both the facts and the applicable law. In doing so, the Court will be mindful of the fact that it did not have the benefit of observing the demeanour of the witnesses firsthand and will therefore accord due allowance in that regard.
(i) Whether the Appeal was filed out of time without leave.
50. The Court refers to the decision in Kabaru & Another v Maina [2024] KEHC 10644 (KLR); Civil Appeal No. E172 of 2023 (Judgment delivered on 11 September 2024), the Court observed as follows: –
“The issue whether the appeal is competent, goes to the substratum of the matter and need to be settled in limine as it goes to the jurisdiction of the court. Any matter touching on the jurisdiction attracts a determination suo moto even where a party fails to address it either consciously or unconsciously.”
51. This being a Court of record, this Court takes note that the judgment of the lower Court was delivered on 15th May 2024. If the Appellants were dissatisfied with that decision, they were required to file a Memorandum of Appeal within thirty (30). Upon perusal of the record, this Court finds that the Memorandum of Appeal was filed within the prescribed timelines. The Appellants’ memorandum of appeal is dated 24th May 2024, while the cross-appeal is dated 25th May 2024—both having been filed within time. Consequently, the Respondent’s contention that the appeal is incompetent is without merit and must fail. The Court shall therefore proceed to consider the Appeal on its merits.
(ii) Who Should Have Custody of The Minors?
52. Section 2 of the Children Act (Cap 141) defines custody as
"custody" means lawful custody, whether by operation of law, written agreement or order of a Court of competent jurisdiction;
53. The same section defines actual custody as;
"Actual custody" means the physical possession, care and control over a child, whether or not such custody is exercised independently or jointly with another
person;
54. Article 19 of the African Charter on Rights and Welfare of the Child states that
“every child is entitled to parental care and protection and shall whenever possible reside with his or her parents”
55. Honourable Justice Musinga (as he was then), in J.O v R.M.N [2005] KEHC 1835 (KLR), elaborated on the concept of “actual custody” in the following terms:
“Actual custody is defined to mean the actual possession of the person of the child as opposed to legal custody which means as respects a child, so much so much of parental rights and duties and as to the person of the child including the place and manner in which time is spent”.
56. Black’s Law Dictionary (10th Edition) defines “legal custody” as follows:
“The authority to make significant decisions on a child’s behalf including decision about education religious training and healthcare”.
57. Custody thus comprises two distinct aspects: legal custody and actual custody, as defined above. Legal custody includes, inter alia, the authority to make decisions affecting the child’s welfare, such as matters of education, religious upbringing, healthcare, and generally encompasses parental rights and responsibilities.
58. The Court is persuaded that the Trial Court appropriately awarded joint legal custody to both parents. This Court, in P.W.M v C.M.M [2015] KEHC 6457 (KLR), held as follows:
“In the absence of any adverse conduct of any of the parents of the children of the marriage or any exceptional circumstances that adversely impact the welfare of the children of the marriage… both parents have joint legal custody of the children of the marriage …”
59. Parenting is fundamentally a joint and equal responsibility, precluding either parent from asserting superior rights over the child. This responsibility requires both parents to recognise and embrace their equal duty to support, care for, and protect the child, irrespective of their marital status. Parents are vested with distinct powers and authority over their children and their property, which must be exercised in a manner that respects the child’s evolving capacity.
60. This responsibility extends to the duty to maintain the children, which includes providing for their basic needs such as food, shelter, clothing, medical care, education, and general guidance. Our courts, guided by
[...truncated]