' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
FAMILY APPEAL NO. E010 OF 2024
NDANYO MUKHWANA WAFULA……………….…………..APPELLANT
VERSUS
CAROLYNE NAMACHANJA KHATETE…………………..RESPONDENT
(Being an appeal from the judgment and order of the Principal Magistrate Court, Webuye Senior Principal Law Courts in Children’s Case No. E013 of 2022 delivered by Hon. P.Y. Kulecho (PM) on 19TH March 2024.)
JUDGMENT
Appeal
1. The Appellant herein vide a Memorandum of Appeal filed in this Court lodged an appeal against the decision of Hon. P.Y. Kulecho (PM) delivered on 19th March 2024 in Webuye Senior Principal Magistrate Court Children Case No E013 of 2022.
2. The Appellant set out the following as the grounds of Appeal;
a. That the learned trial Magistrate exhibited actual bias against the Appellant by failing to consider the Appellant’s evidence on record.
b. That the learned trial Magistrate grossly erred in granting the Appellant access on two days per month, the said days being Saturdays, failing to take into account that the minor attends school on some Saturdays.
c. That the learned trial Magistrate grossly erred by subjecting the exchange of the minor by parties at the Children Offices without taking into account that the said Offices are not operational at the said times and day.
d. That the final orders have occasioned injustices to the Appellant.
e. That the learned trial Magistrate grossly erred in law in evaluation of the evidence before her.
3. The Appellant prayed that the judgment of the trial Court be reviewed and/or set aside and substituted with an appropriate order and that the appeal be allowed with costs.
Background
4. This Court being the first appellant Court must proceed to examine the evidence before the trial Court with a view of re-evaluating it and arriving at its own conclusions. The duty of a first appellate Court was succinctly stated by Wendoh J in JWN v MN [2019] eKLR in the following words:
“It is settled law that the duty of the first appellate court is to re-evaluate the evidence tendered in the subordinate court, both on points of law and facts and come up with its findings and conclusions.”
5. Vide a Plaint dated 19th July 2022, and filed in Court on an even date the Appellant (Plaintiff in the trial Court) herein sought the following prayers:
a. The legal access and actual custody, care and control of the minor be awarded to the Plaintiff.
b. Transfer of the minor to a school favourable and reliable to the Plaintiff.
c. The Registrar of Persons be ordered to change the name of the minor to read Cherryl Nangila Mukhwana.
d. The costs of the suit be borne by the Defendant.
e. The Honourable Court be pleased to make further or other orders as it may deem fit in the circumstances to grant.
6. Together with the suit, the Appellant (Applicant) herein file an application seeking visitation rights/access to the minor for two days a week pending hearing and determination of the suit. In response to the motion application the Respondent did not dispute the fact that the Appellant (Applicant) is the minor’s father. The trial Court vide its ruling delivered on 30th September 2022, proceeded in the best interest of the child, to grant the Appellant (Applicant) access to the minor and noted that since it was not clear where exactly the Appellant (Applicant) resides or how practical it would be to enforce the said access order, the trial Court listed the case for mention to enable the parties indicate to the Court as to how the said access order was going to be executed.
7. Opposing the Plaint, the Respondent filed his Statement of Defence dated 26th July 2022 and filed in Court on an even date. She averred that the Appellant has since retired and has the burden of another family that he is taking care of and cannot adequately provide for the minor; that the Appellant lacks a suitable place where the minor can live in Bungoma; that the minor is a girl approaching puberty and has had very close interaction with the Respondent; that the Respondent has always allowed the Appellant unlimited access to the minor. She averred that she has actively participated in the minor’s wellbeing and safeguarded her future dreams through education policy premiums. On the issue of the name of the minor, she averred that the same has been used by the Government’s National Education Management Information System, the Baptismal card, Bank Accounts and the Appellant had also used the same name to open an account for the minor at Jamii Sacco.
8. In response to the Statement of Defence, the Appellant filed a Reply dated 5th August 2022, and filed in Court on the even date maintains that he had married the Respondent herein and even paid her full dowry; he has been supporting and paying school fees for the minor and denies the Respondent’s allegations; that the name Stephen Wafula was erroneously used on his baptismal card and the Respondent without his consent used the same to apply for the minor’s birth certificate; that the minor ought to bear his name Mukhwana and not Wafula which is his father and the child’s grandfather’s name.
9. On 4th April 2023, the matter was set down for full hearing wherein the parties and the minor testified. During examination in chief, the Appellant herein testified as PW1. He told the Court that he is the minors’ biological father, that he resides in Mikuva and he is a retired civil servant and now a farmer. At his request the trial Court adopted his recorded statement dated 19th July 2022. According to him, the Respondent herein is the mother of the minor and she has denied him access to the child. He produced in Court a joint parental agreement dated 2021 as PEXH 1, cash receipt for school fees as PEXH 2 and an Affidavit as PEXH 3.
10. On cross-examination, he testified that his daughter attends school in Kisumu and she is currently in Grade 6. (PEXH 2). It was his evidence that he has not seen or been in communication with the minor and that he has not been paying the minor’s school fees as the Respondent won’t let him do so. He told the Court that the minor has not complained of any mistreatment or neglect by the Respondent. He confirmed that he has the means to cater to the minor and that besides the minor he has a daughter who is in form four. He told the Court that in addition to being a farmer, he has two houses in Nairobi, but he lacks the documentary evidence to prove his financial capabilities. He told the Court that he was married to the Respondent herein under Luhya customary laws and that her parents are well aware of that fact. He referred the Court to PEXH 1, joint parental responsibility agreement and told the Court that he has no proof that he has been complying with the terms of the said agreement. He confirmed to the Court that he has not complied with 9 terms of the said joint agreement because the Respondent denied him access to the minor and that he admits that he has failed in his parental responsibilities. He told the Court that the last time he visited the minor at school was in 2021 and he was denied access and the school administration notified him that the Respondent had instructed the school administration not to allow him to meet the child. H e told the Court that he has not seen the minor for 7 years.
11. The Respondent testified as DW1 and she equally adopted her statement dated 25th July 2022 as her evidence in chief. She testified that, she resides in Kisumu and she is a civil servant and that the Appellant herein was her friend. According to her, they got a baby, the minor herein and that she has never denied the Appellant access to the child. She produced in Court a Replying Affidavit dated 27th July 2022 as DEXH 1 and told the Court that they both were at the Children Office for a session when they entered into a joint parental responsibility agreement which she produced in Court as DEXH 2. She told the Court that the Appellant never complained about the terms of the said agreement and that she has been single handedly catering to the minor’s needs and she attached the bundle of school fees cash receipts to her Supporting Affidavit. She told the Court that she has never denied the Appellant access to the minor and all she does is not allow him to visit the minor at her house.
12. On cross-examination, she told the Court that the Appellant only paid the minor’s school fee once and that was in the year 2020 and she maintained that she has duly performed her duties as per the joint agreement. She confirmed that a mediator failed to help them reach a consensus and that she has never denied the Appellant access to the minor.
13. On re-examination, she told the Court that the minor is in grade 7 and that she has single handedly raised the child. On the name of the child, she told the Court that the minor bears the Appellant’s family name as her last name and that the minor’s father is Wafula Mukhwana, the Appellant herein.
14. DW2, C.N.W, testified that the Appellant herein is her father and the Respondent her mother. She equally adopted her statement dated 20th December 2023, as her evidence in chief. According to her, she did not want to stay with her father. On cross-examination, she told the Court that she was not willing to stay the Appellant during school holidays as she studies during her school holidays. On re-examination, she told the Court that she wishes to stay with her mother.
15. The trial Court upon considering the pleadings of the parties their evidence produced in court, their testimonies and those of the minors and their submissions delivered its decision follows: -
“FINDINGS AND REASONS THEREOF
Given the said evidence which is uncontroverted the Court finds that the Plaintiff has established a balance of probability that he is the child''s father. As father the Court finds that in the absence of evidence of any extraneous circumstances to warrant the contrary, the Plaintiff has a right to access his child. There is no evidence to show that the best interests of the child would be served by denying one parent access to the minor.
The court having made the above finding the next true for determination is whether the Plaintiff is entitled to the orders sought.
The Plaintiff prays the custody of the child asserting that the Defendant has denied him access to the child. On the other hand, the Defendant states she has not denied the Plaintiff access adding that her only challenge is that she cannot allow the Plaintiff to meet the child in her (DW1’s) house. The Defendant also seems to take issue with the fact that the Plaintiff has failed to honour his parental obligations towards the child as set out in the joint parental responsibility agreement on record. The Plaintiff confirms that he is married, it is not clear whether or not the Plaintiff’s other family knows the child and whether she would gel with them were the Plaintiff granted custody as he requests.
Regarding custody, the Court, guided by the fact that the Defendant has always had the custody of the minor, sees no reason for upsetting the said status. However, given the fact that there is no evidence to show that the Plaintiff has in the past harmed the child or acted in a manner that was contrary to the child’s best interest, the Court finds that the Plaintiff has a legitimate expectation to wish to spend some time with the child to enable them bond.
To ensure the child’s education is not unduly interfered with the Court directs that the Defendant shall retain custody of the minor as has been the case with limited access granted to the Plaintiff to enable the Plaintiff to get to bond with the child. Given the child is in school and seeing as the Defendant says the Plaintiff is barred from accessing her residence, the handover of the child is to be done at the Kisumu County Children Office, every alternate weekend, on Saturdays between 9.00 a.m. and 5.00 p.m. The Plaintiff is to pick the child at the said office spend the day with her and return her at the same spot at 5.00 p.m. for the Defendant to pick her up. If and when the child goes to boarding school either party shall be at liberty to apply to apply to Court for variation of the orders to factor in the changes in the said school calendar.
Regarding maintenance, both parties assert that they are persons of means capable of meeting the child’s needs. The Court is cognizant of the fact that the responsibility to provide for the child lies with both parents. The Plaintiff’s decision not to pay the child’s school fees and provide a monthly stipend is simply inexcusable. The Court orders the Plaintiff to honour that part of the bargain, namely he shall be paying the child’s school fees and giving Kshs. 4,000/= monthly stipend towards the child’s meals as agreed upon by the parties and set out in the joint parental responsibility agreement.
In a nutshell, the Court enters judgment as hereunder: -
-The Plaintiff shall pay the child''s school fees and all school related expenses for the minor at the current school.
-The Plantiff shall be making monthly contributions of Kshs. 4,000/= towards the child''s food and Kshs. 500/= every week for entertainment.
-The Defendant being employed by the Government she is obligated to list the minor in her medical cover towards meeting the child''s medical needs as and when the need arises.
-The Defendant shall be responsible for meeting the child''s clothing needs as and when the need arises as well as provide food in the event the amount provided by the Plaintiff is insufficient.
-The Defendant shall be responsible for meeting the cost of rent, the child will stay with the Defendant wherever it is she stays. For the avoidance of doubt the Defendant is granted the custody of the minor with limited access accorded to the Plaintiff namely every alternate Saturday between 9.00 a.m. and 5:00 p.m., the handover and take-over to be done at the Kisumu County Children Offices. The Children Office is tasked and with execution.”
16. Being aggrieved by the decision of the trial Court the Appellant filed this Appeal. The Court directed that the Appeal be canvased by way of written submissions which the parties filed.
Analysis and Determination
17. I have carefully considered this Appeal on record as well as the written submissions filed by both parties. The issue for determination by this Court is whether it should grant the prayers as sought by the Appellant.
18. It is trite law the Courts cannot re-write agreements between the parties as was held in the case of in National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503 [2011] eKLR at 507,
“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.”
See also Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR.
I note that the trial Court in its judgment heavily referred to the Parental Responsibility Agreement that the parties had entered into on 16th September 202, in granting actual custody of minor to the Respondent and made orders which were in tandem with the said agreement. In fact, the learned trial Magistrate further commented on the agreement in her analysis of the evidence that was before him. Section 103 (1) of the children Act 2022 provides that;
103. (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.
19. In the case of MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment) the Supreme Court of Kenya listed guidelines for determining custody matters to wit
“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.”
20. In this case, there is a joint parental responsibility agreement between the parties, the wishes of the child were ascertained. DW2, C.N.W, also testified in Court that the Appellant is her father but she was comfortable living with her mother, the Respondent herein, even during school holidays. This simply means that the Appellant and the minor do not have any co-existing relationship for her to be comfortable enough to live with him. I am satisfied enough that bearing this in mind and the parental responsibility agreement dated 16th September 2021, the trial Court chose to uphold the same agreement and ensure that the same terms are adhered to especially by the Appellant herein.
21. It is trite law that parents have equal a both responsibility towards the welfare of their children under Article 53 of the Constitution and the doctrine that custody of children of tenders belongs to the mother has to be considered together with the principle of the best interest of the child as was held in the case of SMM v ANK [2022] eKLR which I find persuasive in my determination of this case, the Court observed as follows;
“However, it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. This is not to say that the substance of the rule has dissipated completely; it is to say that its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases. The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.”
22. I must state categorically that this is not a child’s play matter but a children’s case and the concern of this Court is the best interest of the children and nothing more. I take cognizance of the fact that the trial Court’s decision was majorly focused on the best interest of the child when it issued its orders, but it is also essential to ensure that this Court provides the Appellant with a platform to forge a relationship with his young daughter. The only issues within the orders as issued by the trial Court is the aspect of execution of the same during the visitation days by the Appellant. It is clear as day that most government offices do not operate on Saturdays and Sundays and it will be difficult for the Kisumu County Children offices to execute the handover and take-over of the minor every alternate Saturdays and Sundays. On this I insist the parents of the minor have to co-operate for the best interest of the child. They can agree on the appropriate public place meet up point to carry out the hand over and the take-over.
23. On the issue of alternate Saturdays and Sundays, the Appellant herein should be aware that this Court is only focused on the best interests of the child. DW2 clearly has no strong relationship with the Appellant and it is prudent for this Court to approach carefully the timelines the Appellant is allowed to spend time with child so that she does not feel overwhelmed. The Appellant should know best that with children, only patience rules. I find no error with the Court order granting him access to the minor on alternate Saturdays and Sunday as the same was in the best interest of the child.
24. From the foregoing, I proceed to vary the Judgment of the Lower Court dated 19th March 2024 as follows:
a. The Appellant shall pay the child''s school fees and all school related expenses for the minor at the current school.
b. The Appellant shall be making monthly contributions of Kshs. 4,000/= towards the child''s food and Kshs. 500/= every week for entertainment.
c. The Respondent being employed by the Government she is obligated to list the minor in her medical cover towards meeting the child''s medical needs as and when the need arises.
d. The Respondent shall be responsible for meeting the child''s clothing needs as and when the need arises as well as provide food in the event the amount provided by the Appellant is insufficient.
e. The Respondent shall be responsible for meeting the cost of rent, the child will stay with the Respondent wherever it is she stays. For the avoidance of doubt the Respondent is granted the custody of the minor with limited access accorded to the Appellant namely every alternate Saturday between 9.00 a.m. and 5:00 p.m., the handover and take-over to be done at a public place of choosing by both the Appellant and Respondent.
25. In conclusion the appeal partially succeeds as stipulate above. There shall be no order as to costs.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of Septemer 2025.
M.S.Shariff
Judge
In the presence of:
Appellant
Ms Atieno h/b for Ma Nyagol for the Respondent.
Peter Machoni – Court Assistant
'
IN THE HIGH COURT OF KENYA
AT BUNGOMA
FAMILY APPEAL NO. E010 OF 2024
NDANYO MUKHWANA WAFULA……………….…………..APPELLANT
VERSUS
CAROLYNE NAMACHANJA KHATETE…………………..RESPONDENT
(Being an appeal from the judgment and order of the Principal Magistrate Court, Webuye Senior Principal Law Courts in Children’s Case No. E013 of 2022 delivered by Hon. P.Y. Kulecho (PM) on 19TH March 2024.)
JUDGMENT
Appeal
1. The Appellant herein vide a Memorandum of Appeal filed in this Court lodged an appeal against the decision of Hon. P.Y. Kulecho (PM) delivered on 19th March 2024 in Webuye Senior Principal Magistrate Court Children Case No E013 of 2022.
2. The Appellant set out the following as the grounds of Appeal;
a. That the learned trial Magistrate exhibited actual bias against the Appellant by failing to consider the Appellant’s evidence on record.
b. That the learned trial Magistrate grossly erred in granting the Appellant access on two days per month, the said days being Saturdays, failing to take into account that the minor attends school on some Saturdays.
c. That the learned trial Magistrate grossly erred by subjecting the exchange of the minor by parties at the Children Offices without taking into account that the said Offices are not operational at the said times and day.
d. That the final orders have occasioned injustices to the Appellant.
e. That the learned trial Magistrate grossly erred in law in evaluation of the evidence before her.
3. The Appellant prayed that the judgment of the trial Court be reviewed and/or set aside and substituted with an appropriate order and that the appeal be allowed with costs.
Background
4. This Court being the first appellant Court must proceed to examine the evidence before the trial Court with a view of re-evaluating it and arriving at its own conclusions. The duty of a first appellate Court was succinctly stated by Wendoh J in JWN v MN [2019] eKLR in the following words:
“It is settled law that the duty of the first appellate court is to re-evaluate the evidence tendered in the subordinate court, both on points of law and facts and come up with its findings and conclusions.”
5. Vide a Plaint dated 19th July 2022, and filed in Court on an even date the Appellant (Plaintiff in the trial Court) herein sought the following prayers:
a. The legal access and actual custody, care and control of the minor be awarded to the Plaintiff.
b. Transfer of the minor to a school favourable and reliable to the Plaintiff.
c. The Registrar of Persons be ordered to change the name of the minor to read Cherryl Nangila Mukhwana.
d. The costs of the suit be borne by the Defendant.
e. The Honourable Court be pleased to make further or other orders as it may deem fit in the circumstances to grant.
6. Together with the suit, the Appellant (Applicant) herein file an application seeking visitation rights/access to the minor for two days a week pending hearing and determination of the suit. In response to the motion application the Respondent did not dispute the fact that the Appellant (Applicant) is the minor’s father. The trial Court vide its ruling delivered on 30th September 2022, proceeded in the best interest of the child, to grant the Appellant (Applicant) access to the minor and noted that since it was not clear where exactly the Appellant (Applicant) resides or how practical it would be to enforce the said access order, the trial Court listed the case for mention to enable the parties indicate to the Court as to how the said access order was going to be executed.
7. Opposing the Plaint, the Respondent filed his Statement of Defence dated 26th July 2022 and filed in Court on an even date. She averred that the Appellant has since retired and has the burden of another family that he is taking care of and cannot adequately provide for the minor; that the Appellant lacks a suitable place where the minor can live in Bungoma; that the minor is a girl approaching puberty and has had very close interaction with the Respondent; that the Respondent has always allowed the Appellant unlimited access to the minor. She averred that she has actively participated in the minor’s wellbeing and safeguarded her future dreams through education policy premiums. On the issue of the name of the minor, she averred that the same has been used by the Government’s National Education Management Information System, the Baptismal card, Bank Accounts and the Appellant had also used the same name to open an account for the minor at Jamii Sacco.
8. In response to the Statement of Defence, the Appellant filed a Reply dated 5th August 2022, and filed in Court on the even date maintains that he had married the Respondent herein and even paid her full dowry; he has been supporting and paying school fees for the minor and denies the Respondent’s allegations; that the name Stephen Wafula was erroneously used on his baptismal card and the Respondent without his consent used the same to apply for the minor’s birth certificate; that the minor ought to bear his name Mukhwana and not Wafula which is his father and the child’s grandfather’s name.
9. On 4th April 2023, the matter was set down for full hearing wherein the parties and the minor testified. During examination in chief, the Appellant herein testified as PW1. He told the Court that he is the minors’ biological father, that he resides in Mikuva and he is a retired civil servant and now a farmer. At his request the trial Court adopted his recorded statement dated 19th July 2022. According to him, the Respondent herein is the mother of the minor and she has denied him access to the child. He produced in Court a joint parental agreement dated 2021 as PEXH 1, cash receipt for school fees as PEXH 2 and an Affidavit as PEXH 3.
10. On cross-examination, he testified that his daughter attends school in Kisumu and she is currently in Grade 6. (PEXH 2). It was his evidence that he has not seen or been in communication with the minor and that he has not been paying the minor’s school fees as the Respondent won’t let him do so. He told the Court that the minor has not complained of any mistreatment or neglect by the Respondent. He confirmed that he has the means to cater to the minor and that besides the minor he has a daughter who is in form four. He told the Court that in addition to being a farmer, he has two houses in Nairobi, but he lacks the documentary evidence to prove his financial capabilities. He told the Court that he was married to the Respondent herein under Luhya customary laws and that her parents are well aware of that fact. He referred the Court to PEXH 1, joint parental responsibility agreement and told the Court that he has no proof that he has been complying with the terms of the said agreement. He confirmed to the Court that he has not complied with 9 terms of the said joint agreement because the Respondent denied him access to the minor and that he admits that he has failed in his parental responsibilities. He told the Court that the last time he visited the minor at school was in 2021 and he was denied access and the school administration notified him that the Respondent had instructed the school administration not to allow him to meet the child. H e told the Court that he has not seen the minor for 7 years.
11. The Respondent testified as DW1 and she equally adopted her statement dated 25th July 2022 as her evidence in chief. She testified that, she resides in Kisumu and she is a civil servant and that the Appellant herein was her friend. According to her, they got a baby, the minor herein and that she has never denied the Appellant access to the child. She produced in Court a Replying Affidavit dated 27th July 2022 as DEXH 1 and told the Court that they both were at the Children Office for a session when they entered into a joint parental responsibility agreement which she produced in Court as DEXH 2. She told the Court that the Appellant never complained about the terms of the said agreement and that she has been single handedly catering to the minor’s needs and she attached the bundle of school fees cash receipts to her Supporting Affidavit. She told the Court that she has never denied the Appellant access to the minor and all she does is not allow him to visit the minor at her house.
12. On cross-examination, she told the Court that the Appellant only paid the minor’s school fee once and that was in the year 2020 and she maintained that she has duly performed her duties as per the joint agreement. She confirmed that a mediator failed to help them reach a consensus and that she has never denied the Appellant access to the minor.
13. On re-examination, she told the Court that the minor is in grade 7 and that she has single handedly raised the child. On the name of the child, she told the Court that the minor bears the Appellant’s family name as her last name and that the minor’s father is Wafula Mukhwana, the Appellant herein.
14. DW2, C.N.W, testified that the Appellant herein is her father and the Respondent her mother. She equally adopted her statement dated 20th December 2023, as her evidence in chief. According to her, she did not want to stay with her father. On cross-examination, she told the Court that she was not willing to stay the Appellant during school holidays as she studies during her school holidays. On re-examination, she told the Court that she wishes to stay with her mother.
15. The trial Court upon considering the pleadings of the parties their evidence produced in court, their testimonies and those of the minors and their submissions delivered its decision follows: -
“FINDINGS AND REASONS THEREOF
Given the said evidence which is uncontroverted the Court finds that the Plaintiff has established a balance of probability that he is the child''s father. As father the Court finds that in the absence of evidence of any extraneous circumstances to warrant the contrary, the Plaintiff has a right to access his child. There is no evidence to show that the best interests of the child would be served by denying one parent access to the minor.
The court having made the above finding the next true for determination is whether the Plaintiff is entitled to the orders sought.
The Plaintiff prays the custody of the child asserting that the Defendant has denied him access to the child. On the other hand, the Defendant states she has not denied the Plaintiff access adding that her only challenge is that she cannot allow the Plaintiff to meet the child in her (DW1’s) house. The Defendant also seems to take issue with the fact that the Plaintiff has failed to honour his parental obligations towards the child as set out in the joint parental responsibility agreement on record. The Plaintiff confirms that he is married, it is not clear whether or not the Plaintiff’s other family knows the child and whether she would gel with them were the Plaintiff granted custody as he requests.
Regarding custody, the Court, guided by the fact that the Defendant has always had the custody of the minor, sees no reason for upsetting the said status. However, given the fact that there is no evidence to show that the Plaintiff has in the past harmed the child or acted in a manner that was contrary to the child’s best interest, the Court finds that the Plaintiff has a legitimate expectation to wish to spend some time with the child to enable them bond.
To ensure the child’s education is not unduly interfered with the Court directs that the Defendant shall retain custody of the minor as has been the case with limited access granted to the Plaintiff to enable the Plaintiff to get to bond with the child. Given the child is in school and seeing as the Defendant says the Plaintiff is barred from accessing her residence, the handover of the child is to be done at the Kisumu County Children Office, every alternate weekend, on Saturdays between 9.00 a.m. and 5.00 p.m. The Plaintiff is to pick the child at the said office spend the day with her and return her at the same spot at 5.00 p.m. for the Defendant to pick her up. If and when the child goes to boarding school either party shall be at liberty to apply to apply to Court for variation of the orders to factor in the changes in the said school calendar.
Regarding maintenance, both parties assert that they are persons of means capable of meeting the child’s needs. The Court is cognizant of the fact that the responsibility to provide for the child lies with both parents. The Plaintiff’s decision not to pay the child’s school fees and provide a monthly stipend is simply inexcusable. The Court orders the Plaintiff to honour that part of the bargain, namely he shall be paying the child’s school fees and giving Kshs. 4,000/= monthly stipend towards the child’s meals as agreed upon by the parties and set out in the joint parental responsibility agreement.
In a nutshell, the Court enters judgment as hereunder: -
-The Plaintiff shall pay the child''s school fees and all school related expenses for the minor at the current school.
-The Plantiff shall be making monthly contributions of Kshs. 4,000/= towards the child''s food and Kshs. 500/= every week for entertainment.
-The Defendant being employed by the Government she is obligated to list the minor in her medical cover towards meeting the child''s medical needs as and when the need arises.
-The Defendant shall be responsible for meeting the child''s clothing needs as and when the need arises as well as provide food in the event the amount provided by the Plaintiff is insufficient.
-The Defendant shall be responsible for meeting the cost of rent, the child will stay with the Defendant wherever it is she stays. For the avoidance of doubt the Defendant is granted the custody of the minor with limited access accorded to the Plaintiff namely every alternate Saturday between 9.00 a.m. and 5:00 p.m., the handover and take-over to be done at the Kisumu County Children Offices. The Children Office is tasked and with execution.”
16. Being aggrieved by the decision of the trial Court the Appellant filed this Appeal. The Court directed that the Appeal be canvased by way of written submissions which the parties filed.
Analysis and Determination
17. I have carefully considered this Appeal on record as well as the written submissions filed by both parties. The issue for determination by this Court is whether it should grant the prayers as sought by the Appellant.
18. It is trite law the Courts cannot re-write agreements between the parties as was held in the case of in National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503 [2011] eKLR at 507,
“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.”
See also Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR.
I note that the trial Court in its judgment heavily referred to the Parental Responsibility Agreement that the parties had entered into on 16th September 202, in granting actual custody of minor to the Respondent and made orders which were in tandem with the said agreement. In fact, the learned trial Magistrate further commented on the agreement in her analysis of the evidence that was before him. Section 103 (1) of the children Act 2022 provides that;
103. (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.
19. In the case of MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment) the Supreme Court of Kenya listed guidelines for determining custody matters to wit
“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.”
20. In this case, there is a joint parental responsibility agreement between the parties, the wishes of the child were ascertained. DW2, C.N.W, also testified in Court that the Appellant is her father but she was comfortable living with her mother, the Respondent herein, even during school holidays. This simply means that the Appellant and the minor do not have any co-existing relationship for her to be comfortable enough to live with him. I am satisfied enough that bearing this in mind and the parental responsibility agreement dated 16th September 2021, the trial Court chose to uphold the same agreement and ensure that the same terms are adhered to especially by the Appellant herein.
21. It is trite law that parents have equal a both responsibility towards the welfare of their children under Article 53 of the Constitution and the doctrine that custody of children of tenders belongs to the mother has to be considered together with the principle of the best interest of the child as was held in the case of SMM v ANK [2022] eKLR which I find persuasive in my determination of this case, the Court observed as follows;
“However, it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. This is not to say that the substance of the rule has dissipated completely; it is to say that its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases. The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.”
22. I must state categorically that this is not a child’s play matter but a children’s case and the concern of this Court is the best interest of the children and nothing more. I take cognizance of the fact that the trial Court’s decision was majorly focused on the best interest of the child when it issued its orders, but it is also essential to ensure that this Court provides the Appellant with a platform to forge a relationship with his young daughter. The only issues within the orders as issued by the trial Court is the aspect of execution of the same during the visitation days by the Appellant. It is clear as day that most government offices do not operate on Saturdays and Sundays and it will be difficult for the Kisumu County Children offices to execute the handover and take-over of the minor every alternate Saturdays and Sundays. On this I insist the parents of the minor have to co-operate for the best interest of the child. They can agree on the appropriate public place meet up point to carry out the hand over and the take-over.
23. On the issue of alternate Saturdays and Sundays, the Appellant herein should be aware that this Court is only focused on the best interests of the child. DW2 clearly has no strong relationship with the Appellant and it is prudent for this Court to approach carefully the timelines the Appellant is allowed to spend time with child so that she does not feel overwhelmed. The Appellant should know best that with children, only patience rules. I find no error with the Court order granting him access to the minor on alternate Saturdays and Sunday as the same was in the best interest of the child.
24. From the foregoing, I proceed to vary the Judgment of the Lower Court dated 19th March 2024 as follows:
a. The Appellant shall pay the child''s school fees and all school related expenses for the minor at the current school.
b. The Appellant shall be making monthly contributions of Kshs. 4,000/= towards the child''s food and Kshs. 500/= every week for entertainment.
c. The Respondent being employed by the Government she is obligated to list the minor in her medical cover towards meeting the child''s medical needs as and when the need arises.
d. The Respondent shall be responsible for meeting the child''s clothing needs as and when the need arises as well as provide food in the event the amount provided by the Appellant is insufficient.
e. The Respondent shall be responsible for meeting the cost of rent, the child will stay with the Respondent wherever it is she stays. For the avoidance of doubt the Respondent is granted the custody of the minor with limited access accorded to the Appellant namely every alternate Saturday between 9.00 a.m. and 5:00 p.m., the handover and take-over to be done at a public place of choosing by both the Appellant and Respondent.
25. In conclusion the appeal partially succeeds as stipulate above. There shall be no order as to costs.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of Septemer 2025.
M.S.Shariff
Judge
In the presence of:
Appellant
Ms Atieno h/b for Ma Nyagol for the Respondent.
Peter Machoni – Court Assistant
'