(Being an Appeal arising from part of the Judgment of the Hon. Principal Magistrate J. Kibosia in Children’s Case Number MCCHCC/E1402/2024 at Milimani Children’s Court in Nairobi delivered on 4 th February, 2025.)
VMO…………………………………. APPELLANT
VERSUS
NGN ……………...………….. RESPONDENT
1. The Appellant filed this appeal arising from part of the Judgment of Hon. Jackie Kibosia, Principal Magistrate, in Children Case Number MCCHCC/E1402 of 2024 at Milimani Children’s Court at Nairobi, delivered on 4 th February, 2025.
2. The parties are the biological parents of H.N. (Minor), who was born on 5 th April, 2016. The Appellant sued the Respondent seeking sole legal custody of the Minor and an order for the Respondent to contribute towards the Minor’s maintenance and upkeep. She also sought that the Respondent be granted access to the Minor during the school term, half of the school holidays, public holidays and special holidays, on terms to be determined by the court.
3. The Respondent did not enter an appearance nor file a Defense at the Children’s Court.
4. The matter was heard, and the Children’s Court delivered judgment in the following terms.;
(i) THAT both parties shall have legal joint custody of the minor herein with the plaintiff/mother having actual custody, care and control;
(ii) Defendant/father granted unlimited but reasonable access, parties to agree on modality;
(iii) THAT the father’s name is to be retained in the Child’s birth documents;
(iv) This being a family matter, each party to bear their own cost;
(v) Parties at liberty to apply;
(vi) Apportionment of parental responsibility:
Plaintiff: food, shelter and utilities, clothing.
5. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Memorandum of Appeal dated 21 st February, 2025. She listed the following Grounds of Appeal;
(i) THAT the learned magistrate erred in fact and law by failing to interrogate the circumstances under which the plaintiff/appellant brought the case before court and particularly the fact that the defendant/respondent has made it clear that he is not interested in undertaking a parental rights and responsibilities by being an absentee father and failing to participate in the hearing despite service and granted the appellant and respondent joint legal custody contrary to the best interests of the minor;
(ii) THAT the learned magistrate erred in fact and in law by failing to take into consideration the conduct of the respondent which shows deliberate intention not to participate in the life of the minor herein in presence and in kind;
(iii) THAT the learned magistrate erred in fact and in law by adjudicating the issue of the minor's identity prejudicing the outcome therein despite the fact that it was not pleaded;
(iv) THAT the learned magistrate erred in fact and in law by granting maintenance orders to the appellant yet the same were not pleaded and contrary to the pleaded facts that the appellant has been taking care of the minor solely;
(v) THAT the learned magistrate erred in fact and in law by granting the appellant and respondent joint legal custody purely on the basis on his biological link to the child without due consideration of his deliberate absenteeism;
(vi) THAT the learned magistrate erred in fact and in law by failing to consider all facts and evidence relied upon by the appellant;
(vii) THAT the learned magistrate erred in law and in fact by failing to apportion parental responsibility to the respondent, neglecting and principle that child maintenance is a shared parental responsibility of both parties and as such the order is oppressive to the appellant;
(viii) THAT the learned magistrate erred in fact and in law by failing to consider the established guidelines used by court in making an order for the financial provision for maintenance of a child;
(ix) THAT the learned magistrate erred both in law and in fact the issue of the minor’s identity, a matter not raised by the appellant in the pleadings, thereby prejudicing the outcome of the case;
(x) THAT the learned magistrate erred in both fact and in law by failing to uphold and safeguard the inherent dignity of the minor, by requiring that the respondent’s name be retained in the birth certificate, notwithstanding the respondent abdicating his parental responsibilities, his lack of interest in the minor’s welfare and him generally being a stranger to the minor.
6. She asked this Court to allow the appeal and set aside the Judgment and substitute with an order allowing the prayers in the Plaint dated 29 th July, 2024.
7. In the appeal, the Respondent entered an appearance and filed a preliminary objection that the appeal had been lodged out of time. The P.O was heard, and a ruling was delivered on 18 th November, 2025. The Court dismissed the P.O, as the judgment of the lower court was delivered on 4 th February, 2025, and the appeal was lodged on 21 st February, 2025, a period of 17 days. Therefore, the appeal was lodged within time, and no leave was required.
8. In her submissions on appeal, the Appellant submitted that the Lower Court erred in granting joint legal custody, given the Respondent’s absence from the Minor’s life and his abdication of parental responsibility, contrary to the Minor’s best interests.
9. She submitted that the Trial Court erred by failing to consider the evidence on record, which led to an unjust decision on apportionment of parental responsibility.
10. The Appellant also argues that the Trial Court addressed matters of the Minor’s identity, which were neither pleaded nor supported by evidence.
Analysis and determination
11. Having carefully considered the Grounds of Appeal and the submissions by the Appellant, I find that there are four issues for determination;
a) Whether the Appellant should be granted sole legal custody of the Child;
b) Whether the apportionment of parental responsibility was correct;
c) Whether the lower Court’s orders on the Child’s identity should be altered;
d) Whether the Respondent should be granted access.
12. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial Court afresh, evaluate, analyze it, and come to its own independent conclusion. This Court is required to conduct a comprehensive review of the Plaint and the evidence presented and reach an independent conclusion.
Whether the Appellant should be granted sole legal custody of the Child;
13. The Appellant also asked the Court to grant her sole legal custody over the minor. Accordingly, I find that Section 103 of the Children’s Act comes into play. The Section outlines the factors that the Court should consider when making a custody order. It provides as follows;
103. Principles to be applied in making custody order
(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;
(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.
14. I shall relook at the facts and determine whether the Appellant supported her request for sole legal custody over the Child.
15. The Child is now 10 years old. He has been under the exclusive actual custody of the Appellant, who has also maintained sole legal custody from the time of birth.
16. The evidence presented indicates that the Appellant has been solely responsible for the Minor and has managed all aspects of his daily life and nurturing.
17. In a joint legal custody arrangement, both parents retain the legal rights and responsibilities to make significant decisions concerning the Child’s welfare. This encompasses, but is not limited to, areas such as education, healthcare, religion, and travel arrangements. It is typically considered the default custody arrangement unless there is clear evidence that such an arrangement would not serve the Child’s best interests. The Court is required to evaluate all relevant factors in each case and weigh them to ensure the best interests of the Child is prioritized.
18. Joint legal custody is not suitable when one parent exhibits a significant lack of interest and collaboration in the shared decision-making process. In this instance, the Respondent has clearly shown disinterest in the Child’s life since birth. He was served with the pleadings in the matter before the Children’s Court, but did not bother to participate in the trial. His conduct raises concerns about his ability to engage constructively in co-parenting responsibilities.
19. The circumstances of this case reveal that a joint legal custody arrangement could potentially have adverse effects on the Child’s welfare, thus failing to prioritize his best interest. The Appellant presented compelling evidence of the need for her to be granted sole legal custody. The trial court erred in principle by failing to adequately consider the evidence regarding the Respondent’s conduct, the compelling evidence presented by the Appellant, and the potential implications of a joint legal custody order on the Child’s welfare in light of the circumstances.
Whether the apportionment of parental responsibility was correct;
20. Section 110 of the Children Act provides as follows on joint maintenance of children;
110. Unless the Court otherwise directs, and subject to any financial contribution ordered by the Court to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child—
(a) it shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other; …
21. The trial court apportioned parental responsibilities to the Appellant regarding food, shelter, utilities, and clothing. Although the judgment explained the doctrine of equal contribution, it seems there was an oversight regarding the maintenance orders for the Child’s education.
22. The Appellant has demonstrated that she is already incurring substantial costs for the Child’s maintenance, and none of the items listed as requiring provision were exaggerated.
23. The Respondent is obliged to also support the Child. Since education and incidental costs are not included in the Judgment, this responsibility is now assigned to the Respondent.
Whether the lower Court’s orders on the Child’s identity should be altered;
24. The Court has reviewed the Appellant’s argument that there was no pleading or evidence to justify the orders allowing the Respondent’s name to remain on the Child’s birth certificate. However, during the oral proceedings, she requested the Court to grant her permission to remove the Respondent’s details from the Child’s birth certificate.
25. The trial Court appropriately considered this matter in its Judgment. Under Article 53(1) of the Constitution and Section 7 of the Children Act, every child has an inherent right to their identity, including the right to know their biological parents. The sour relationship between the parties does not provide sufficient grounds to remove the father’s name from the birth certificate. Stripping away this identity element has the potential to have detrimental effects and is not in the best interests of the Child. There is no reason to disturb the trial Court’s holding on the ground
Whether the Respondent should be granted access.
26. The Child has a right to be cared for by both parents. The Court cannot shut out access unless there is compelling evidence to do so. The trial court granted unlimited access and allowed the parties to agree on the modalities. Since the respondent has not been involved in the Child’s life, the best interests of the child are served by providing gradual, structured access.
Disposition:
27. The Appeal is successful, save for the prayer for removal of the Respondent’s name from the birth certificate, and is allowed on the following terms.;
i. The order granting joint legal custody is set aside. The Appellant is granted sole actual and legal custody of the child H.N.
ii. The name of the father shall remain on the Birth Certificate.
iii. The order on maintenance is revised; The Appellant shall cater for food, shelter and clothing. The Respondent shall cater for the Child’s education and incidental costs.
iv. The order on access is revised; the order on unlimited access is set aside.
a. Access shall be gradual to give the Child time to build a relationship without sudden disruption and shall be subject to review.
b. There shall be supervised access for an initial period of 3 months beginning June, 2026 at a recognized public place and in the presence of a mutually agreed neutral party.
c. Access will be every three weeks on Saturdays from 11:00 a.m. to 1:00 p.m.
d. After 3 months, the parties shall file a report before the Children’s Court and the Court shall review the report. If the Court is satisfied that contact has been positive and non-disruptive, it may consider increasing the duration and make such orders as may be necessary. In the event of consecutive missed visits without a valid reason, the access orders may be suspended.
v. Either party may apply to vary the orders at any time if it is in the best interests of the child.
vi. The Appellant shall effect service of the orders upon the Respondent forthwith.
vii. Each party to bear own costs
28. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 28 TH day of MAY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Ms Kwega P. Advocate for the Appellant
No attendance for the Respondent
CIVIL APPEAL E028 OF 2025 JUDGMENT2
VMO…………………………………. APPELLANT
VERSUS
NGN ……………...………….. RESPONDENT
1. The Appellant filed this appeal arising from part of the Judgment of Hon. Jackie Kibosia, Principal Magistrate, in Children Case Number MCCHCC/E1402 of 2024 at Milimani Children’s Court at Nairobi, delivered on 4 th February, 2025.
2. The parties are the biological parents of H.N. (Minor), who was born on 5 th April, 2016. The Appellant sued the Respondent seeking sole legal custody of the Minor and an order for the Respondent to contribute towards the Minor’s maintenance and upkeep. She also sought that the Respondent be granted access to the Minor during the school term, half of the school holidays, public holidays and special holidays, on terms to be determined by the court.
3. The Respondent did not enter an appearance nor file a Defense at the Children’s Court.
4. The matter was heard, and the Children’s Court delivered judgment in the following terms.;
(i) THAT both parties shall have legal joint custody of the minor herein with the plaintiff/mother having actual custody, care and control;
(ii) Defendant/father granted unlimited but reasonable access, parties to agree on modality;
(iii) THAT the father’s name is to be retained in the Child’s birth documents;
(iv) This being a family matter, each party to bear their own cost;
(v) Parties at liberty to apply;
(vi) Apportionment of parental responsibility:
Plaintiff: food, shelter and utilities, clothing.
5. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Memorandum of Appeal dated 21 st February, 2025. She listed the following Grounds of Appeal;
(i) THAT the learned magistrate erred in fact and law by failing to interrogate the circumstances under which the plaintiff/appellant brought the case before court and particularly the fact that the defendant/respondent has made it clear that he is not interested in undertaking a parental rights and responsibilities by being an absentee father and failing to participate in the hearing despite service and granted the appellant and respondent joint legal custody contrary to the best interests of the minor;
(ii) THAT the learned magistrate erred in fact and in law by failing to take into consideration the conduct of the respondent which shows deliberate intention not to participate in the life of the minor herein in presence and in kind;
(iii) THAT the learned magistrate erred in fact and in law by adjudicating the issue of the minor's identity prejudicing the outcome therein despite the fact that it was not pleaded;
(iv) THAT the learned magistrate erred in fact and in law by granting maintenance orders to the appellant yet the same were not pleaded and contrary to the pleaded facts that the appellant has been taking care of the minor solely;
(v) THAT the learned magistrate erred in fact and in law by granting the appellant and respondent joint legal custody purely on the basis on his biological link to the child without due consideration of his deliberate absenteeism;
(vi) THAT the learned magistrate erred in fact and in law by failing to consider all facts and evidence relied upon by the appellant;
(vii) THAT the learned magistrate erred in law and in fact by failing to apportion parental responsibility to the respondent, neglecting and principle that child maintenance is a shared parental responsibility of both parties and as such the order is oppressive to the appellant;
(viii) THAT the learned magistrate erred in fact and in law by failing to consider the established guidelines used by court in making an order for the financial provision for maintenance of a child;
(ix) THAT the learned magistrate erred both in law and in fact the issue of the minor’s identity, a matter not raised by the appellant in the pleadings, thereby prejudicing the outcome of the case;
(x) THAT the learned magistrate erred in both fact and in law by failing to uphold and safeguard the inherent dignity of the minor, by requiring that the respondent’s name be retained in the birth certificate, notwithstanding the respondent abdicating his parental responsibilities, his lack of interest in the minor’s welfare and him generally being a stranger to the minor.
6. She asked this Court to allow the appeal and set aside the Judgment and substitute with an order allowing the prayers in the Plaint dated 29 th July, 2024.
7. In the appeal, the Respondent entered an appearance and filed a preliminary objection that the appeal had been lodged out of time. The P.O was heard, and a ruling was delivered on 18 th November, 2025. The Court dismissed the P.O, as the judgment of the lower court was delivered on 4 th February, 2025, and the appeal was lodged on 21 st February, 2025, a period of 17 days. Therefore, the appeal was lodged within time, and no leave was required.
8. In her submissions on appeal, the Appellant submitted that the Lower Court erred in granting joint legal custody, given the Respondent’s absence from the Minor’s life and his abdication of parental responsibility, contrary to the Minor’s best interests.
9. She submitted that the Trial Court erred by failing to consider the evidence on record, which led to an unjust decision on apportionment of parental responsibility.
10. The Appellant also argues that the Trial Court addressed matters of the Minor’s identity, which were neither pleaded nor supported by evidence.
Analysis and determination
11. Having carefully considered the Grounds of Appeal and the submissions by the Appellant, I find that there are four issues for determination;
a) Whether the Appellant should be granted sole legal custody of the Child;
b) Whether the apportionment of parental responsibility was correct;
c) Whether the lower Court’s orders on the Child’s identity should be altered;
d) Whether the Respondent should be granted access.
12. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial Court afresh, evaluate, analyze it, and come to its own independent conclusion. This Court is required to conduct a comprehensive review of the Plaint and the evidence presented and reach an independent conclusion.
Whether the Appellant should be granted sole legal custody of the Child;
13. The Appellant also asked the Court to grant her sole legal custody over the minor. Accordingly, I find that Section 103 of the Children’s Act comes into play. The Section outlines the factors that the Court should consider when making a custody order. It provides as follows;
103. Principles to be applied in making custody order
(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;
(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.
14. I shall relook at the facts and determine whether the Appellant supported her request for sole legal custody over the Child.
15. The Child is now 10 years old. He has been under the exclusive actual custody of the Appellant, who has also maintained sole legal custody from the time of birth.
16. The evidence presented indicates that the Appellant has been solely responsible for the Minor and has managed all aspects of his daily life and nurturing.
17. In a joint legal custody arrangement, both parents retain the legal rights and responsibilities to make significant decisions concerning the Child’s welfare. This encompasses, but is not limited to, areas such as education, healthcare, religion, and travel arrangements. It is typically considered the default custody arrangement unless there is clear evidence that such an arrangement would not serve the Child’s best interests. The Court is required to evaluate all relevant factors in each case and weigh them to ensure the best interests of the Child is prioritized.
18. Joint legal custody is not suitable when one parent exhibits a significant lack of interest and collaboration in the shared decision-making process. In this instance, the Respondent has clearly shown disinterest in the Child’s life since birth. He was served with the pleadings in the matter before the Children’s Court, but did not bother to participate in the trial. His conduct raises concerns about his ability to engage constructively in co-parenting responsibilities.
19. The circumstances of this case reveal that a joint legal custody arrangement could potentially have adverse effects on the Child’s welfare, thus failing to prioritize his best interest. The Appellant presented compelling evidence of the need for her to be granted sole legal custody. The trial court erred in principle by failing to adequately consider the evidence regarding the Respondent’s conduct, the compelling evidence presented by the Appellant, and the potential implications of a joint legal custody order on the Child’s welfare in light of the circumstances.
Whether the apportionment of parental responsibility was correct;
20. Section 110 of the Children Act provides as follows on joint maintenance of children;
110. Unless the Court otherwise directs, and subject to any financial contribution ordered by the Court to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child—
(a) it shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other; …
21. The trial court apportioned parental responsibilities to the Appellant regarding food, shelter, utilities, and clothing. Although the judgment explained the doctrine of equal contribution, it seems there was an oversight regarding the maintenance orders for the Child’s education.
22. The Appellant has demonstrated that she is already incurring substantial costs for the Child’s maintenance, and none of the items listed as requiring provision were exaggerated.
23. The Respondent is obliged to also support the Child. Since education and incidental costs are not included in the Judgment, this responsibility is now assigned to the Respondent.
Whether the lower Court’s orders on the Child’s identity should be altered;
24. The Court has reviewed the Appellant’s argument that there was no pleading or evidence to justify the orders allowing the Respondent’s name to remain on the Child’s birth certificate. However, during the oral proceedings, she requested the Court to grant her permission to remove the Respondent’s details from the Child’s birth certificate.
25. The trial Court appropriately considered this matter in its Judgment. Under Article 53(1) of the Constitution and Section 7 of the Children Act, every child has an inherent right to their identity, including the right to know their biological parents. The sour relationship between the parties does not provide sufficient grounds to remove the father’s name from the birth certificate. Stripping away this identity element has the potential to have detrimental effects and is not in the best interests of the Child. There is no reason to disturb the trial Court’s holding on the ground
Whether the Respondent should be granted access.
26. The Child has a right to be cared for by both parents. The Court cannot shut out access unless there is compelling evidence to do so. The trial court granted unlimited access and allowed the parties to agree on the modalities. Since the respondent has not been involved in the Child’s life, the best interests of the child are served by providing gradual, structured access.
Disposition:
27. The Appeal is successful, save for the prayer for removal of the Respondent’s name from the birth certificate, and is allowed on the following terms.;
i. The order granting joint legal custody is set aside. The Appellant is granted sole actual and legal custody of the child H.N.
ii. The name of the father shall remain on the Birth Certificate.
iii. The order on maintenance is revised; The Appellant shall cater for food, shelter and clothing. The Respondent shall cater for the Child’s education and incidental costs.
iv. The order on access is revised; the order on unlimited access is set aside.
a. Access shall be gradual to give the Child time to build a relationship without sudden disruption and shall be subject to review.
b. There shall be supervised access for an initial period of 3 months beginning June, 2026 at a recognized public place and in the presence of a mutually agreed neutral party.
c. Access will be every three weeks on Saturdays from 11:00 a.m. to 1:00 p.m.
d. After 3 months, the parties shall file a report before the Children’s Court and the Court shall review the report. If the Court is satisfied that contact has been positive and non-disruptive, it may consider increasing the duration and make such orders as may be necessary. In the event of consecutive missed visits without a valid reason, the access orders may be suspended.
v. Either party may apply to vary the orders at any time if it is in the best interests of the child.
vi. The Appellant shall effect service of the orders upon the Respondent forthwith.
vii. Each party to bear own costs
28. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 28 TH day of MAY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Ms Kwega P. Advocate for the Appellant
No attendance for the Respondent
CIVIL APPEAL E028 OF 2025 JUDGMENT2