RULING.
1. This court has before it the Memorandum of Appeal dated 1 st August 2025 . It is an appeal from the ruling of the lower court dated 17 th June 2025 . In the said Memorandum of Appeal, the Appellant has averred that:
a. The learned trial magistrate erred in law and fact in declining to grant the Appellant interim legal and actual custody of the minors despite evidence that the Respondent had abandoned them since they were toddlers.
b. The learned trial magistrate misdirected himself by failing to apply the paramount principle under Article 53(2) of the Constitution of Kenya and Section 8 of the Children Act, which require that the best interests of the child be the primary consideration.
c. That the learned trial magistrate erred in law and fact by failing to consider the Children Report dated 19th May 2025 filed by the Director Children Services.
d. The learned trial magistrate erred in law and fact by failing to consider the Respondent’s lack of demonstrated financial means or stability to provide for the minors’ basic needs, as she did not file any affidavit of means.
e. That the learned trial magistrate failed to consider the psychological and emotional welfare of the minors, in issuing orders that would uproot them from the home and parent they have known since infancy .
2. The ruling the subject of this challenge was in regard to the application dated 16 th April, 2025 . The said application, by the Plaintiff/Applicant and father of the twin minors had sought for the following substantive orders against the Defendant/Respondent, the mother to the twin minors:
a. THAT pending the hearing of this application inter-parties this honourable court be pleased to give the Applicant full legal and actual custody of the children.
b. THAT pending the full hearing and determination of this Application and this suit herein this honourable court be pleased to give the Applicant father full legal and actual custody of the children.
c. THAT pending the hearing of this application and determination of this suit this honourable court be pleased to restrain the Defendant/Respondent from abducting the children and taking them away from the home they know as provided by their Applicant father since their birth.
d. THAT pending the hearing of this application and determination of this suit this honourable court be pleased to restrain the Defendant/Respondent from interfering with the minors’ education by abducting them and taking them away from their home .
3. After considering the application, the Supporting and Replying Affidavits of the respective parties and also the submissions made by Counsel thereof, the learned Magistrate made the following determination:
i. Legal and actual custody of the minors is granted to the mother, with the father granted unlimited access to the minors.
ii. The father shall take care of the school fees and school related expenses of the minors.
iii. The mother shall take care of the other needs of the minors.
iv. No order as to costs .
4. It is this ruling that is the subject of the present appeal that the Appellant seeks should be reviewed and overturned by this court. In reaching his determination, I note that the court took note that the parentage of the minors is not in issue. Further, it was also noted by the court that the Respondent was away for some period of time as she was away attending training at the Kenya Water Institute (KEWI ) and she produced her Diploma that she acquired in 2023 to that effect. The undertaking was not challenged. In addition, the Respondent did provide proof that subsequent to the graduation from KEWI, she was engaged by Africa Sand Dam Foundation as a Dam Coordinator, an employment that she still holds. She was thus capable of catering for the children as she has a regular income as opposed to the Appellant who is a boda boda rider without a regular income.
5. The Appellant stated in the grounds of appeal that the trial court failed to consider that Respondent had abandoned the children and the children were in the custody of the for the whole time. In addition, the Appellant stated that the court did not consider that the Respondent had no financial ability to cater for the children, the report of the Children’s Officer was not considered and lastly that the learned Magistrate did not take into account the best interest of the children as enshrined under Article 53 (2) of the Constitution and section 8 of the Children’s Act, 2022 .
Analysis and determination .
6. I have carefully considered the pleadings in this matter, and the ruling of the learned Magistrate and the reasoning in the said ruling. I have also considered the directions given by my sister Hon. Lady Justice Matheka on the 6 th August 2025 and 24 th November 2025.
7. In reaching his determination, the learned Magistrate considered the guidance given in M.M. (Suing as the Mother and Next Friend of P.M.K., T.A, F.B, D.K, and E.M) VS T.O, Children’s Appeal Case No. 5 of 2021 (2023) KEHC 506 KLR, KMM VS JIL (2016), Mehrunissga vs Parvesh (1981) KLR 547 and J.O vs S.A.O (2016) eKLR , among others. The determination in the latter case is especially illuminating. The Court of Appeal stated thus:
“ There is a plethora of decisions by this court and the High Court that in determining matters of custody of children, and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise care and control of the children. Exceptional circumstances include: the mother been unsettled, where the mother has taken a new husband, where she is living in quarters that are deplorable or, where her conduct is disgraceful and/or immoral ”.
8. A reading of the ruling shows that the learned Magistrate took note of the facts and considered the averments of both the Appellant and the Respondent in reaching his interim verdict. There is no reason to state that either the learned Magistrate failed to consider relevant matters, the core being the best interest of the minors, or that the learned Magistrate was guided by irrelevant matters, external to the application and the averments of the respective parties herein.
9. This is a unique case. It is not the Appellant or the Respondent who are the subject of the proceedings but the two minors. It is thus paramount for the court to take the interest of the minors in consideration when making its determination. In the directions given on the 6 th August 2025, the High Court directed that there be a stay of execution of the ruling of the learned Magistrate pending the hearing and determination of the appeal herein. The directions further allowed the parties to have a sharing arrangement over the December 2025 school holidays, which the court notes were not fully complied with by the Appellant.
10. The ruling of the learned Magistrate was expected to subsist until the case was heard and determined fully. That is yet to happen. Without then predetermining the substantive issues that are likely to arise in the hearing of the main suit, this court, guided by the provisions of Article 53 (2) of the Constitution and section 8 of the Children’s Act , is called upon to determine this appeal with the above provisions in mind. Article 53 (2) of the Constitution provides as follows:
“( 2) A child’s best interests are of paramount importance in every matter concerning the child ”.
11. The children remain with the Appellant, albeit on the strength of the directions given by the High Court on 6 th August 2025. I also note that this appeal has delayed the hearing and determination of the main suit. The minors are in school and the academic year has one term to come to an end. The parties do not live in close proximity of each other.
12. It is not in the best interest of the children to destabilise them at this stage, as effecting the order will require their immediate relocation and placement in new schools in the middle of the school year. In addition, I note, as confirmed by the Children Officer reports, that neither of the parents are unfit parents. Further, the children have had a reasonable opportunity to engage with both parents. Both parents have cared for the children well.
13. I will thus direct as follows:
a. The ruling of the learned Magistrate is stayed. The same is on the condition that the parties adhere with the previous arrangement that allowed the parties reasonable access to the children, under the supervision of the Children Officer.
b. The parties to finalise the pre-trial issues, if they are yet to do so within 21 days of this ruling.
c. The matter to be mentioned before the Chief Magistrate at Makueni Law Courts 3 rd September 2026 and the hearing and determination of the substantive suit within 90 days of the mention on 3 rd September 2026.
d. Each party to bear its costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 12 th day of August 2026.
HCFA NO. E009 OF 2025 PETER KIMAE KIOKO VS BENEDETTE MWIKALI SABETH RULING Pg. 6
1. This court has before it the Memorandum of Appeal dated 1 st August 2025 . It is an appeal from the ruling of the lower court dated 17 th June 2025 . In the said Memorandum of Appeal, the Appellant has averred that:
a. The learned trial magistrate erred in law and fact in declining to grant the Appellant interim legal and actual custody of the minors despite evidence that the Respondent had abandoned them since they were toddlers.
b. The learned trial magistrate misdirected himself by failing to apply the paramount principle under Article 53(2) of the Constitution of Kenya and Section 8 of the Children Act, which require that the best interests of the child be the primary consideration.
c. That the learned trial magistrate erred in law and fact by failing to consider the Children Report dated 19th May 2025 filed by the Director Children Services.
d. The learned trial magistrate erred in law and fact by failing to consider the Respondent’s lack of demonstrated financial means or stability to provide for the minors’ basic needs, as she did not file any affidavit of means.
e. That the learned trial magistrate failed to consider the psychological and emotional welfare of the minors, in issuing orders that would uproot them from the home and parent they have known since infancy .
2. The ruling the subject of this challenge was in regard to the application dated 16 th April, 2025 . The said application, by the Plaintiff/Applicant and father of the twin minors had sought for the following substantive orders against the Defendant/Respondent, the mother to the twin minors:
a. THAT pending the hearing of this application inter-parties this honourable court be pleased to give the Applicant full legal and actual custody of the children.
b. THAT pending the full hearing and determination of this Application and this suit herein this honourable court be pleased to give the Applicant father full legal and actual custody of the children.
c. THAT pending the hearing of this application and determination of this suit this honourable court be pleased to restrain the Defendant/Respondent from abducting the children and taking them away from the home they know as provided by their Applicant father since their birth.
d. THAT pending the hearing of this application and determination of this suit this honourable court be pleased to restrain the Defendant/Respondent from interfering with the minors’ education by abducting them and taking them away from their home .
3. After considering the application, the Supporting and Replying Affidavits of the respective parties and also the submissions made by Counsel thereof, the learned Magistrate made the following determination:
i. Legal and actual custody of the minors is granted to the mother, with the father granted unlimited access to the minors.
ii. The father shall take care of the school fees and school related expenses of the minors.
iii. The mother shall take care of the other needs of the minors.
iv. No order as to costs .
4. It is this ruling that is the subject of the present appeal that the Appellant seeks should be reviewed and overturned by this court. In reaching his determination, I note that the court took note that the parentage of the minors is not in issue. Further, it was also noted by the court that the Respondent was away for some period of time as she was away attending training at the Kenya Water Institute (KEWI ) and she produced her Diploma that she acquired in 2023 to that effect. The undertaking was not challenged. In addition, the Respondent did provide proof that subsequent to the graduation from KEWI, she was engaged by Africa Sand Dam Foundation as a Dam Coordinator, an employment that she still holds. She was thus capable of catering for the children as she has a regular income as opposed to the Appellant who is a boda boda rider without a regular income.
5. The Appellant stated in the grounds of appeal that the trial court failed to consider that Respondent had abandoned the children and the children were in the custody of the for the whole time. In addition, the Appellant stated that the court did not consider that the Respondent had no financial ability to cater for the children, the report of the Children’s Officer was not considered and lastly that the learned Magistrate did not take into account the best interest of the children as enshrined under Article 53 (2) of the Constitution and section 8 of the Children’s Act, 2022 .
Analysis and determination .
6. I have carefully considered the pleadings in this matter, and the ruling of the learned Magistrate and the reasoning in the said ruling. I have also considered the directions given by my sister Hon. Lady Justice Matheka on the 6 th August 2025 and 24 th November 2025.
7. In reaching his determination, the learned Magistrate considered the guidance given in M.M. (Suing as the Mother and Next Friend of P.M.K., T.A, F.B, D.K, and E.M) VS T.O, Children’s Appeal Case No. 5 of 2021 (2023) KEHC 506 KLR, KMM VS JIL (2016), Mehrunissga vs Parvesh (1981) KLR 547 and J.O vs S.A.O (2016) eKLR , among others. The determination in the latter case is especially illuminating. The Court of Appeal stated thus:
“ There is a plethora of decisions by this court and the High Court that in determining matters of custody of children, and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise care and control of the children. Exceptional circumstances include: the mother been unsettled, where the mother has taken a new husband, where she is living in quarters that are deplorable or, where her conduct is disgraceful and/or immoral ”.
8. A reading of the ruling shows that the learned Magistrate took note of the facts and considered the averments of both the Appellant and the Respondent in reaching his interim verdict. There is no reason to state that either the learned Magistrate failed to consider relevant matters, the core being the best interest of the minors, or that the learned Magistrate was guided by irrelevant matters, external to the application and the averments of the respective parties herein.
9. This is a unique case. It is not the Appellant or the Respondent who are the subject of the proceedings but the two minors. It is thus paramount for the court to take the interest of the minors in consideration when making its determination. In the directions given on the 6 th August 2025, the High Court directed that there be a stay of execution of the ruling of the learned Magistrate pending the hearing and determination of the appeal herein. The directions further allowed the parties to have a sharing arrangement over the December 2025 school holidays, which the court notes were not fully complied with by the Appellant.
10. The ruling of the learned Magistrate was expected to subsist until the case was heard and determined fully. That is yet to happen. Without then predetermining the substantive issues that are likely to arise in the hearing of the main suit, this court, guided by the provisions of Article 53 (2) of the Constitution and section 8 of the Children’s Act , is called upon to determine this appeal with the above provisions in mind. Article 53 (2) of the Constitution provides as follows:
“( 2) A child’s best interests are of paramount importance in every matter concerning the child ”.
11. The children remain with the Appellant, albeit on the strength of the directions given by the High Court on 6 th August 2025. I also note that this appeal has delayed the hearing and determination of the main suit. The minors are in school and the academic year has one term to come to an end. The parties do not live in close proximity of each other.
12. It is not in the best interest of the children to destabilise them at this stage, as effecting the order will require their immediate relocation and placement in new schools in the middle of the school year. In addition, I note, as confirmed by the Children Officer reports, that neither of the parents are unfit parents. Further, the children have had a reasonable opportunity to engage with both parents. Both parents have cared for the children well.
13. I will thus direct as follows:
a. The ruling of the learned Magistrate is stayed. The same is on the condition that the parties adhere with the previous arrangement that allowed the parties reasonable access to the children, under the supervision of the Children Officer.
b. The parties to finalise the pre-trial issues, if they are yet to do so within 21 days of this ruling.
c. The matter to be mentioned before the Chief Magistrate at Makueni Law Courts 3 rd September 2026 and the hearing and determination of the substantive suit within 90 days of the mention on 3 rd September 2026.
d. Each party to bear its costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 12 th day of August 2026.
HCFA NO. E009 OF 2025 PETER KIMAE KIOKO VS BENEDETTE MWIKALI SABETH RULING Pg. 6