https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7826

AAM v IAI (Civil Appeal E001 of 2025) [2026] KEHC 7826 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7826 (KLR) Republic of Kenya In the High Court at Garissa Civil Appeal E001 of 2025 JN Onyiego, J May 22, 2026 Between AAM Appellant and IAI Respondent Judgment 1.Via a Plaint dated 30.10.2024, the appellant/plaintiff moved the magistrate’s court seeking for the following prayers:i.That the defendant be compelled to provide monthly maintenance for the child totaling to Kshs. 16,500/.ii.That the plaintiff be granted the custody of the children herein as they are of tender age thus they require the plaintiff’s care.iii.The plaintiff also seeks protection from this Honourable Court against any form of intimidation or threats issued by the defendant.iv.Cost of this case.v.Any other relief that this Honourable Court may deem just and fit to grant. 2.The respondent entered appearance and consequently filed a Statement of Defence and a Witness Statement all dated 21.11.2024 in which he denied the allegations by the appellant citing reasons to the contrary that, it is the appellant who had neglected the minors despite attempts from him to provide for the family. 3.The court upon considering the evidence and the law, delivered a judgment dated 04.03.2025 decreeing that:i.The court grants the defendant actual custody of all the children. On the other hand, the court is convinced that both the plaintiff and the defendant are fit to be allowed legal custody. Plaintiff is allowed visitation rights in consultation with the defendant.ii.Maintenance, school, dugsi, cloth and medical care shall primarily be catered for by the defendant. The plaintiff is at liberty to assist and contribute.iii.Each party to bear own costs. 4.Aggrieved by the determination of the court, she filed a Memorandum of Appeal dated 25.03.2025 on grounds that:i.The Honorable magistrate erred in law and facts by failing to consider and properly interpret the law and the Constitution and in particular Sections 8 of the Children’s Act, 2022 and Article 53(e) of the Constitution.ii.The Honorable Magistrate erred in law and facts by failing to consider the well set out principles of custody of minors and that minors were to be in the actual custody of the mother.iii.The Honorable Magistrate erred in law and facts by failing to define what a minor is/was in granting the respondent a male parent custody of the minors.iv.The Honorable Magistrate erred in law and facts by relying on uncorroborated and hearsay evidence adduced by the respondent during the hearing of the case resulting to miscarriage of justice.v.The Honorable Magistrate erred in law and facts by adjudicating on extraneous matters, which had not been litigated in the pleadings and which it upheld as truthful without any concrete evidence.vi.The Honorable Magistrate erred in law and facts by failing to consider and appreciate the evidence tendered by the appellant.vii.The Honorable Magistrate erred in law and facts when he failed to demonstrate neutrality, control and fairness in the proceedings and accordingly demonstrated bias towards the appellant at the expense of the respondent and therefore the judgment entered cannot be said to be fair.viii.The Honorable Magistrate misdirected himself by not appreciating that it was not available for the court to stretch its imagination, invoking les pendes and filling gaps and inadequacies in the respondent’s case.ix.The Honorable Magistrate totally disregarded the plaintiff’s evidence making the judgment to be marred with numerous contradictions and rendering it manifestly unfair.x.The judgment of the Honourable Magistrate was manifestly erroneous as it violated the provisions of the Children’s Act and the Constitution when dealing with matters in respect of the children. 5.Reasons wherefore, the appellant prayed that the appeal be allowed, the court be pleased to reverse the impugned judgment and consequently award costs to the appellant. 6.The appeal was canvassed by way of written submissions. 7.The appellant argued that the respondent had acted improperly by removing the children from the physical custody and care of their biological mother and placing them with a third party without her consent. He contended that such conduct was heartless and inconsistent with the best interests of the children. It was further submitted that, owing to the nature of the respondent’s employment, he was compelled to leave the children in the care of his mother and a domestic helper to attend to their daily needs. The appellant maintained that, given the tender age of the minors, they ought to be under the care of their mother rather than being entrusted to third parties. 8.That there existed no exceptional circumstances to warrant the court to take away the actual custody of the children to the respondent. To that end, support was drawn from the case of JKN vs HWN [2019] eKLR where the court stated that: -‘’As I read our case law now, sexual indiscretion or extra marital sexual behaviour will only be a factor in a custody award if it rises to the level where it harms the children as for example is assumed to happen when the parent in question has behaved so dishonorably that it affects the children through trauma. If there is no showing of harm, sexual indiscretion alone, without more, is not an inexorable rule excluding a court from awarding custody to a parent where other favourable factors are present.’’ 9.The appellant stated that in the present matter she had not remarried and therefore remarriage alone, without any evidence that it would negatively affect the wellbeing of the children, ought not to have been treated as a determining factor in the custody dispute. She further maintained that she only relinquished the physical custody of her children under coercion, stressing that she had not been ready or willing to part with them voluntarily. 10.Counsel submitted that the appellant had testified she was running a small shop in Wajir town, which placed her in a position to contribute to the children’s upkeep, while the respondent supplemented her efforts with a monthly maintenance of Kshs. 16,000. It was urged that the court should consider that the minors were of tender years and had remained under the appellant’s custody until they were forcefully taken away from her. On that basis, counsel implored the court to allow the appeal as prayed. 11.The respondent did not file submissions. 12.PW1, AA, testified that she resides in Madina Location where she runs a small shop. She explained that I is her former husband and that she was in court in respect of their three children: MI, a four‑year‑old girl; MI 2, a three‑year‑old boy; and MI 3, a girl aged one year and two months. She stated that she married I in 2019, that they had three children together, and that she is now divorced. The divorce, she said, was initiated because I insulted her physically, and she herself took the step to dissolve the marriage. 13.She told the court that after the divorce she initially took custody of the children, but she no longer has them. According to her, the respondent threatened that unless she surrendered the children, she would not be granted a divorce. She added that there was no reconciliation between them, and that in July 2024 the respondent took the children by force and thereafter, he blocked communication between her and the children. 14.She further testified that the children were placed under the care of the respondent’s mother in Dandu, where they remain to date. She recounted that the respondent’s mother warned her that if she ever visited them, her blood would be shed. She said she reported the matter to the children’s officer, first at Kamukunji and later at Wajir, where I was summoned but refused to attend, and she was advised to seek redress in court in September 2024. 15.She concluded her testimony by stating that she wanted all her children returned to her custody, that I should cease threatening her, and that he should be ordered to pay upkeep for the children. 16.PW1 testified that she was requesting a monthly upkeep of Kshs. 17,000. She explained that she was engaged in business, operating a shop from which she made a profit of about Kshs. 5,000 per month. She stated that if granted custody of the children, she would be able to contribute by providing them with housing and clothing, while I, being a police officer, would cater for their medical needs. She added that the costs of maintaining the children could be shared between them. 17.On cross‑examination, PW1 stated that she was divorced in April 2024 while residing in Wajir, and at the time of divorce the children were with her there. She explained that she had been evicted from the matrimonial home in DAa in February 2024, and that she was with the children when the eviction occurred. She acknowledged a letter dated 25 October 2024 but disagreed with the last part beginning “in the light,” insisting that she had not neglected the children. 18.She recounted that during that period the respondent brought her from Nairobi to the Children’s Officer and attempted to force her to hand over the children, but the officer refused and referred them to the police. She testified that the OCS instructed her to retain the children, but I later called elders who, together with him, directed her to hand over the children. She concluded by emphasizing that the children were still too young and should be given back to her. 19.On re‑examination, PW1 stated that she had given out the children as a result of threats from the respondent. She explained that he insulted her, which led her to leave the house without his knowledge. She emphasized that she had never neglected the children and that after the divorce she continued to have them in her custody. She further clarified that she had never handed the children over to anyone else voluntarily and concluded by asserting that she wanted her children back. 20.DW1, I Adan I, testified that he had never threatened the plaintiff and that, on several occasions, she had abandoned the children. He stated that he married A on 02.11.2019 at Bula Hothan and that they were blessed with three children. After the marriage, they moved to Nairobi since he was working there, and their child Mahir was born in Nairobi in October 2022. He explained that, due to A’s behaviour, he was later transferred to Wajir, where he shared accommodation with fellow police officers as they were not permitted to rent outside. He added that A’s conduct was such that she was forcing his colleagues out of the shared house. 21.He further testified that his wife would at times place diapers in his colleague’s room. He stated that when he was summoned over the matter, he denied that his wife was responsible, but his colleague produced evidence to the contrary. As a result, he was ordered to take his wife to Mandera. He explained that he provided her with transport, but she refused to go and because of that incident, he was transferred to Wajir in October 2022. 22.He continued to describe a troubled relationship between A and him as marked by repeated conflict, threats and abandonment of children. He reported that in April 2023, after difficulties near Wajir High School, he requested a transfer to DAa. Later, in October 2023, while A was about to give birth to their child M, he took her to Mandera for delivery but she soon left. By January 2024, she accused him of infidelity and on 9th January allegedly attempted to stab him, demanding divorce and leaving the children behind. Elders intervened and reprimanded her. 23.He explained that on 30.01.2024 he was transferred to Nairobi as a bodyguard, leaving the family in DAa. A then moved between Wajir and Habaswein, abandoning the children, prompting her parents to call him to collect them. On 17.04.2024, he claimed she again tried to stab him and threatened to poison him, leading him to leave the house on 19th April. That she continued to demand divorce, which was finalized on 15.05.2024, with dowry paid and custody arrangements made. 24.He stated that although he agreed to pay Kshs. 5,000 monthly, A repeatedly abandoned the children. On 27.06.2024, she left them in a bus, even saying to Children Officers that the youngest slowed her down and hindered her plans. From then, the children remained in his custody. He arranged care through his mother and a helper, though A briefly took them back before returning them again. 25.He recounted that in October 2024, A reported him to Kamukunji Police, but he clarified that the custody case was already in Wajir. On 24th October 2024, elders at the township chief’s office facilitated an agreement allowing A visitation rights. 26.On cross‑examination, DW1 stated that he was regularly transferred due to the nature of his work and therefore had no option but to leave the children with his mother when they were abandoned, since he could not move around with them. He explained that the plaintiff had requested a divorce, claiming that he stood in the way of her new marriage. He added that after the divorce they held discussions, during which the Children’s Officer advised that the children should be handed over to their mother as they were still too young. He maintained that he had been providing for the children. He further testified that they were referred to the OCS when the plaintiff returned the children to him, but the OCS did not hand themover. He concluded by stating that after the divorce the plaintiff initially took the children, but later returned to Nairobi and called him, asking that he takes them back. 27.He continued his testimony by stating that he had given the children to A, but she later returned them to him. He explained that A went to KMTC Murang’a with the children and subsequently called him, asking him to take them back. He recalled that on 24.06.2024, she contacted him from Murang’a, saying she was unable to care for the children. He emphasized that while the children were with him, they had never been abandoned. He asserted that his mother was better placed to care for the children, whereas A had repeatedly abandoned them. 28.I have considered the grounds of appeal and parties’ submissions. The only issues for determination are; who is entitled to physical custody of the children; who will take care of the maintenance expenses. 29.It trite that the best interests of a child are of paramount importance in every decision made concerning a child. This position is well articulated under Article 53(2) of the Constitution as well as Section 8 of the Children Act 2022. 30.The crux of the matter herein is custody of the minors herein. The Supreme Court in the case of MAK v RMAA & 4 Others Petition2 (E003)(2023)KESC21(KLR)(2March2023)(Judgment)gave guidelines or factors to consider when making a decision affecting a child as hereunder;“Courts, while making a decision that would impact the child, were mandated to consider all circumstances affecting the child. The following guidelines ought to be considered when balancing a child’s best interests and parental rights and responsibilities: 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 was 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 was not in the child's best interests, in which case supervised access to the child was to be granted. 9.Need to ensure that children were not placed in alternative care unnecessarily. 10.The mental health of the parents. 11.The totality of the circumstances”. 31.There is no dispute that the subject minors are all below seven years which as a general principle should be under the custody of the mother unless there are exceptional circumstances. See Githunguri Vs Githunguri 1 KAR 9 which states;“The prima-facie rule which is now quite clearly settled is that other things being equal, children of this tender age should be with their mother and where a court gives custody of child of tender age to the father, it is incumbent on it to make sure that there are really sufficient reasons to exclude the Prima facie rule ……” 32.In the instant case, both parents have claimed actual custody of the minors. The appellant stated that owing to the tender age of the children, she is the right person to be awarded custody. On the other hand, the respondent argued that the appellant had severally abandoned the children in a view to frustrate the respondent. The respondent gave a detailed history on how the appellant neglected the children by either abandoning them or surrendering them to him. This position is confirmed in the Children Officer’s report dated 25-10-2024 by the children officer Wajir East which was tendered to the trial court. 33.At paragraph 2 of the said letter, it is indicated that the appellant and the respondent had signed a consent giving custody of the children to the respondent. There is no doubt from the testimony of both parties that the two are not in good terms and have since divorced. In view of this conduct, the appellant is not fit to assume custody of the children until circumstances change in which case, a review can be considered. 34.As to the suitability of the respondent, he admitted that he is ever on transfer hence the reason why the children are with the mother and a helper. In other words, his availability is minimal. Given this scenario, the children’s best interest can be best articulated by the respondent with his mother as the custodian. Accordingly, actual custody shall be given to the respondent with the mother as the caregiver. This as I said can be reviewed after some time to assess the change of circumstances to determine on whether the mother would have changed in character before assuming custody or responsibility. 35.As to maintenance, the respondent is willing to take care of everything unless the mother wishes to support. 36.In a nut shell and in the best interest of the children, I find that the appeal herein lacks merit hence dismissed. However, in the best interest of the children, the court wishes to add and clarify that;a.Actual custody is given to the father but the children shall stay with their paternal grand-mother until such time that review orders shall be made.b.That legal custody is awarded jointly to both parents.c.That the mother shall have visitation rights with proper arrangements with the father through the relevant Children’s Officer.d.The respondent shall shoulder all necessary maintenance expenses including school expenses for the minors with the support of the appellant where possible.e.Bearing in mind the age of the children, the above orders shall be subject to review from time to time before the trial court if need be or circumstances changef.Each party to bear own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MAY 2026…………….....J. N. ONYIEGOJUDGE