REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
FAMILY APPEAL NO. E010 OF 2024
PNM (Suing as a father &
next friend of the minor, AWN……………. ……………………. APPELLANT
VERSUS
MJS…………………………….. ……………………………….. RESPONDENT
(Being an Appeal from the Judgment and Decree of the Children’s Court at Nakuru in Children’s Case No. E224 of 2022 delivered on 28 th June, 2024 by Hon. Vincent Adet, Senior Principal Magistrate)
JUDGEMENT
1. Introduction
1. This Appeal arises from the judgment of the Children’s Court at Nakuru, delivered by Hon. Vincent Adet (SPM) on 28th June, 2024. In that decision, the trial court granted actual and physical custody of the minor child, AWN (now aged approximately 7 years), to the Respondent mother, with unlimited visitation access accorded to the Appellant father.
2. The Appellant was dissatisfied with the trial court's decision and preferred an appeal to this Court via a Memorandum of Appeal. The matter was directed to be canvassed by way of written submissions. The Appellant filed his principal submissions on 15th October, 2025, further submissions on 11 th December, 2025, and subsequent further supplementary submissions on 1 st July, 2026. The Respondent did not file any submissions or response to the Appeal despite entering an appearance through counsel.
2. Preliminary Issue: Competence of Pleadings Filed Without Leave
3. Before evaluating the merits of the Appeal, this Court must address a procedural irregularity on the face of the record. Following the closing of standard pleadings and the filing of primary submissions on 15 th October, 2025, the Appellant unilaterally filed "Further Submissions" on 11 th December, 2025 and "Further Submissions" on 1 st July, 2026.
4. In these latter documents, the Appellant attempts to introduce entirely new evidentiary matters and fresh allegations of fact, claiming that the child has been abandoned to a third party and unilaterally converted to a different religious faith.
5. It is a fundamental rule of civil and family procedure that parties are bound by their primary pleadings. Once a timeline for submissions is settled, no party may continuously inject supplementary materials, statements of fact, or fresh evidence into an appellate record without first seeking and obtaining formal leave of the Court.
6. An appeal is not a rolling repository for ongoing domestic grievances. Consequently, all supplementary submissions and purported fresh evidence filed by the Appellant after 15 th October, 2025, having been filed without leave, are hereby struck out from the record. The Court will confine its determination to the primary grounds and evidence legally elements of the trial record.
3. Issues for Determination
6. Having streamlined the record, the core issues remaining for determination are:
i. Whether the trial court misapplied or failed to apply the principle of the Best Interest of the Child under Article 53(2) of the Constitution and Section 95 of the Children Act, 2022.
ii. Whether the fact that the Appeal stands undefended removes the obligation of the Court to independently interrogate its merits.
4. Analysis and Determination
A. The Legal Standard of an Undefended Appeal
7. The record shows that the Respondent failed to participate in the highlighting or filing stages of this Appeal. However, in family matters—and specifically those involving the welfare of a minor child—the mere fact that an appeal is undefended does not operate as an automatic walkover or default judgment for the appellant.
8. The statutory burden remains squarely on the Appellant to demonstrate that the trial magistrate committed a clear, demonstrable error of law or fact that warrants appellate disruption of the status quo. In the absence of such proof, an appeal must be dismissed notwithstanding the silence of the responding party.
B. The Tender Years Doctrine vs. The Best Interest of the Child
9. The Appellant contends that because the minor had adjusted to his care during the subsistence of interim holding orders since 2022, the trial magistrate erred by interrupting that continuity in favor of the mother. He further argues that the trial court improperly prioritized a gender preference over his proven capacity as a caregiver.
10. Under Kenyan family jurisprudence, as anchored in Section 95 of the Children Act, 2022, and Article 53(2) of the Constitution, the "best interests" of a child are the single most important consideration. As correctly cited by the Appellant from M .A. v R.O.O. [2013] eKLR, our legal system recognizes a strong, historical presumption that children of tender years (defined as ten years and below) are best nurtured under the primary care and physical custody of their biological mother.
11. This presumption is not absolute, but it can only be displaced by demonstrating "exceptional circumstances" showing that the mother is hopelessly unfit, toxic, or entirely incapable of providing a secure base for the child. As clarified in Sospeter Ojaamong v Lynette Amondi Otien o , exceptional unfitness includes clear proof of severe neglect, deplorable safety conditions, or absolute instability.
12. A review of the legitimate trial record confirms that, the trial magistrate utilized social inquiry reports prepared by the Children’s Officer to make a careful, structural evaluation. While the child had adjusted well to the father's house during the pendency of the litigation, the Appellant failed to provide any compelling or admissible evidence proving that the Respondent mother was unfit to exercise parental responsibility. The fact that a mother works demanding hours or relies on supportive childcare structures does not equate to abandonment or moral disqualification.
13. The trial court engineered a balanced arrangement: vesting actual physical custody in the mother to secure essential maternal care during these critical developmental years, while granting the father unlimited, expansive visitation rights to ensure his continuous, robust involvement in the child's life.
14. This Court finds no misapplication of the law or failure of logic in the trial magistrate’s approach. The status quo established by the trial court's final decree is calculated to serve the child's long-term emotional and physical welfare.
5. Conclusion and Determination
14. This Court is satisfied that the trial court properly evaluated the pleadings, reports, and statutory principles under the Children Act, 2022. The Appellant has failed to discharge his burden to prove any reviewable error that would justify this Court uprooting the child from the primary custodial framework ordered below.
15. Accordingly, the following orders are hereby issued:
i. The Appeal dated 9 th July, 2025 is hereby disallowed.
ii. The Judgment and Decree of the trial court delivered on 28 th June, 2024 is upheld in its entirety.
iii. All supplementary submissions and evidentiary materials filed by the Appellant without leave of this Court are struck out.
iv. Given the familial nature of these proceedings, each party shall bear their own costs of this Appeal.
It is So Ordered
Signed, Dated and Delivered in virtually From Busia
On this 7 th Day of July 2026
____________________
Mohochi S.M
PRESIDING JUDGE
IN THE HIGH COURT OF KENYA AT NAKURU
FAMILY APPEAL NO. E010 OF 2024
PNM (Suing as a father &
next friend of the minor, AWN……………. ……………………. APPELLANT
VERSUS
MJS…………………………….. ……………………………….. RESPONDENT
(Being an Appeal from the Judgment and Decree of the Children’s Court at Nakuru in Children’s Case No. E224 of 2022 delivered on 28 th June, 2024 by Hon. Vincent Adet, Senior Principal Magistrate)
JUDGEMENT
1. Introduction
1. This Appeal arises from the judgment of the Children’s Court at Nakuru, delivered by Hon. Vincent Adet (SPM) on 28th June, 2024. In that decision, the trial court granted actual and physical custody of the minor child, AWN (now aged approximately 7 years), to the Respondent mother, with unlimited visitation access accorded to the Appellant father.
2. The Appellant was dissatisfied with the trial court's decision and preferred an appeal to this Court via a Memorandum of Appeal. The matter was directed to be canvassed by way of written submissions. The Appellant filed his principal submissions on 15th October, 2025, further submissions on 11 th December, 2025, and subsequent further supplementary submissions on 1 st July, 2026. The Respondent did not file any submissions or response to the Appeal despite entering an appearance through counsel.
2. Preliminary Issue: Competence of Pleadings Filed Without Leave
3. Before evaluating the merits of the Appeal, this Court must address a procedural irregularity on the face of the record. Following the closing of standard pleadings and the filing of primary submissions on 15 th October, 2025, the Appellant unilaterally filed "Further Submissions" on 11 th December, 2025 and "Further Submissions" on 1 st July, 2026.
4. In these latter documents, the Appellant attempts to introduce entirely new evidentiary matters and fresh allegations of fact, claiming that the child has been abandoned to a third party and unilaterally converted to a different religious faith.
5. It is a fundamental rule of civil and family procedure that parties are bound by their primary pleadings. Once a timeline for submissions is settled, no party may continuously inject supplementary materials, statements of fact, or fresh evidence into an appellate record without first seeking and obtaining formal leave of the Court.
6. An appeal is not a rolling repository for ongoing domestic grievances. Consequently, all supplementary submissions and purported fresh evidence filed by the Appellant after 15 th October, 2025, having been filed without leave, are hereby struck out from the record. The Court will confine its determination to the primary grounds and evidence legally elements of the trial record.
3. Issues for Determination
6. Having streamlined the record, the core issues remaining for determination are:
i. Whether the trial court misapplied or failed to apply the principle of the Best Interest of the Child under Article 53(2) of the Constitution and Section 95 of the Children Act, 2022.
ii. Whether the fact that the Appeal stands undefended removes the obligation of the Court to independently interrogate its merits.
4. Analysis and Determination
A. The Legal Standard of an Undefended Appeal
7. The record shows that the Respondent failed to participate in the highlighting or filing stages of this Appeal. However, in family matters—and specifically those involving the welfare of a minor child—the mere fact that an appeal is undefended does not operate as an automatic walkover or default judgment for the appellant.
8. The statutory burden remains squarely on the Appellant to demonstrate that the trial magistrate committed a clear, demonstrable error of law or fact that warrants appellate disruption of the status quo. In the absence of such proof, an appeal must be dismissed notwithstanding the silence of the responding party.
B. The Tender Years Doctrine vs. The Best Interest of the Child
9. The Appellant contends that because the minor had adjusted to his care during the subsistence of interim holding orders since 2022, the trial magistrate erred by interrupting that continuity in favor of the mother. He further argues that the trial court improperly prioritized a gender preference over his proven capacity as a caregiver.
10. Under Kenyan family jurisprudence, as anchored in Section 95 of the Children Act, 2022, and Article 53(2) of the Constitution, the "best interests" of a child are the single most important consideration. As correctly cited by the Appellant from M .A. v R.O.O. [2013] eKLR, our legal system recognizes a strong, historical presumption that children of tender years (defined as ten years and below) are best nurtured under the primary care and physical custody of their biological mother.
11. This presumption is not absolute, but it can only be displaced by demonstrating "exceptional circumstances" showing that the mother is hopelessly unfit, toxic, or entirely incapable of providing a secure base for the child. As clarified in Sospeter Ojaamong v Lynette Amondi Otien o , exceptional unfitness includes clear proof of severe neglect, deplorable safety conditions, or absolute instability.
12. A review of the legitimate trial record confirms that, the trial magistrate utilized social inquiry reports prepared by the Children’s Officer to make a careful, structural evaluation. While the child had adjusted well to the father's house during the pendency of the litigation, the Appellant failed to provide any compelling or admissible evidence proving that the Respondent mother was unfit to exercise parental responsibility. The fact that a mother works demanding hours or relies on supportive childcare structures does not equate to abandonment or moral disqualification.
13. The trial court engineered a balanced arrangement: vesting actual physical custody in the mother to secure essential maternal care during these critical developmental years, while granting the father unlimited, expansive visitation rights to ensure his continuous, robust involvement in the child's life.
14. This Court finds no misapplication of the law or failure of logic in the trial magistrate’s approach. The status quo established by the trial court's final decree is calculated to serve the child's long-term emotional and physical welfare.
5. Conclusion and Determination
14. This Court is satisfied that the trial court properly evaluated the pleadings, reports, and statutory principles under the Children Act, 2022. The Appellant has failed to discharge his burden to prove any reviewable error that would justify this Court uprooting the child from the primary custodial framework ordered below.
15. Accordingly, the following orders are hereby issued:
i. The Appeal dated 9 th July, 2025 is hereby disallowed.
ii. The Judgment and Decree of the trial court delivered on 28 th June, 2024 is upheld in its entirety.
iii. All supplementary submissions and evidentiary materials filed by the Appellant without leave of this Court are struck out.
iv. Given the familial nature of these proceedings, each party shall bear their own costs of this Appeal.
It is So Ordered
Signed, Dated and Delivered in virtually From Busia
On this 7 th Day of July 2026
____________________
Mohochi S.M
PRESIDING JUDGE