https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12102

AWK v AL (Civil Appeal E285 of 2024) [2026] KEHC 12102 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 12102 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E285 of 2024 NIO Adagi, J July 23, 2026 IN THE MATTER OF CHILDREN'S CASE NO. E023 OF 2022 IN THE MATTER OF: TLL (A MINOR) Between AWK Appellant and AL Respondent Judgment 1.By a Plaint dated 6th September 2022, the Respondent herein (then Plaintiff) before the Children’s court sued the Appellant (the Defendant) seeking an order that the legal custody of the minor herein be vested in both parents and the actual custody be vested in the Respondent and in the alternative, he be granted access to both parties. The Respondent also sought for an order that the Appellant to release the Birth Certificate for purposes of taking out an Insurance Policy and for school enrolment. The Respondent further prayed that both parents share responsibilities equally and that the minor should not be removed from the court’s jurisdiction. 2.The Appellant herein filed a Statement of Defence and a Counterclaim. She denied the averments in the Plaint and Counterclaimed seeking that the court grants her actual custody and both parties be granted joint legal custody. The Appellant sought for an order for the minor’s maintenance and an order restraining the Respondent from interfering whatsoever with the minor. 3.The case was set down for hearing. The Respondent’s case was that he is best suited to have custody of the minor. He stated that the Appellant moved out and took custody of the minor where she resides with her parents. He urged the court to grant him access. 4.The Appellant’s case was that she is best suited to have custody of the minor. It was her evidence that the Respondent was abusive and asked the court to apportion parental responsibilities equitably. evidence 5.Upon the trial court considering the pleadings, the evidence, the parties’ advocates written submissions and the law delivered its judgement on 11th October 2024 and made the following orders:a.That the legal custody of the child (minor) will be shared jointly between the Plaintiff and the Defendant. This is to say that both parents have a right to participate and make inputs in the major decisions concerning the child including but not limited to educational, religious and medical decisions;b.That Defendant shall have actual/physical custody of the minor herein;c.The Defendant shall continue providing shelter, food, home, clothes and pay utility bills;d.The Plaintiff shall have unlimited access to the minor with prior arrangement with the Defendant on alternate weekends;e.The Plaintiff shall have custody of the minor’s half the school holiday and the Defendant shall have custody half of the remainder period of the school holiday;f.Since the Defendant has enrolled the minor to her medical cover, the court shall deem the issue of medical cover well taken care of. In any case, both parties shall take out medical cover for the minor and or provide medical expenses equally;g.The Plaintiff shall pay school fees and school-related expenses for the minor at their current and future schools.h.The Plaintiff shall supplement by paying a monthly sum of Kshs.15,000/= upkeep payable every 5th day of the succeeding month when schools are in session and a sum of Kshs.10,000/= when schools are not in session.i.No orders as to costs. 6.Being dissatisfied with orders (d) and (e) of the trial court’s judgement as above, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 25th October 2025 on the following 9 grounds of appeal: -a.That the learned trial Magistrate erred in law and fact in granting the Respondent unlimited access to the minor on alternate weekends and half of the school holidays without considering that the minor does not know him and has never seen him since he was eight (8) months old.b.That the learned trial Magistrate erred in law and fact by failing to take into account that the minor having never seen or stayed with the Respondent since April 2019 when he was only eight (8) months, granting him such extensive unsupervised access without providing for a familiarization and or bonding period would upset and traumatize the child.c.The learned trail magistrate erred in law and fact by failing to take into consideration the threats of permanently taking away the child from the Appellant made by the Respondent in one of his insulting emails to the Appellant which threat he admitted in court, and which stated as follows in part:"I will not let you see Taji ever when I take him. And he’ll know all this when he's old enough. No filter. Hard truth. Go try trapping another man and have his ugly' ass kid (we all know Taji is ALL me! You could never!!!) — so you can continue your sociopathic shit with someone else. Pathetic cunt. "d.The learned trial erred in law and fact by failing to take into consideration the evidence of the Respondent's ungovernable temper, violence and vulgarity before giving the orders of unlimited access to the minor.e.That the learned trial Magistrate erred in law and fact by issuing orders that are prejudicial to the child's best interests, without considering the psychological Impact of such a sudden change in custodial arrangements to a Six (6) year old child.f.That the learned trial Magistrate erred in law and fact by not giving due consideration to the best interests of the minor, as required under the Children's Act and relevant international conventions on the rights of the child.g.That the learned trial Magistrate erred in law and fact by issuing orders that were not supported by sufficient evidence or proper inquiry into the current living and welfare conditions of the minor.h.That the learned trial Magistrate erred in law and fact by failing to appreciate the potential harm and prejudice to the minor's welfare if the said access orders were executed.i.That the Learned Magistrate of the trial court erred in law and fact and effectively take into consideration the averments contained in the Appellant's Statement of Defence and counterclaim, Witness Statement, the Appellant's testimony given before the court in the virtual hearing and the Written Submissions filed by the Appellant. 7.The Appellant prays that the appeal be allowed and orders (d) and (e) of the Children’s court’s judgement be substituted with the following orders:-a.That the Respondent will have telephone and video access to the minor once a week on a date to be agreed by the Parties.b.That the Respondent be ordered to submit himself to counselling in respect of his temper, violence, vulgarity and alcohol abuse.c.That the access arrangement in (a) above to continue in place for at least two (2) years after which the trial court may review the same on application by either party subject to the Respondent submitting himself to counselling.d.That in the alternative to (a), (b) and (c) above, this Honourable Court be pleased to remand the case for trial before a different Magistrate in respect of the issue of the Respondent’s access to the child. 8.Directions were given for the appeal to be canvassed through written submissions and both parties complied. Appellant’s submissions 9.The Appellant submits that the trial magistrate's decision to grant the Respondent unsupervised access and partial custody of the minor is deeply flawed. A child who has had no meaningful contact with a parent for over five years requires a gradual introduction to that parent to avoid emotional disorientation and trauma. The minor has lived exclusively with the Applicant since birth, enjoying a stable and secure environment with consistent schooling and medical care. To suddenly place him under the physical custody of a previously estranged parent, without any structured familiarization or supervision, risks severe psychological harm 10.The Children Act, 2001, Section 8(1)(a), mandates that the best interests of the child be the primary consideration in all matters, and the Constitution reinforces this in Article 53(2). International jurisprudence, such as the United Nations Convention on the Rights of the Child (UNCRC), to which Kenya is a party, recognizes that a child's emotional security and attachment to primary caregivers must guide custodial decisions. 11.The trial court's failure to implement a phased bonding process demonstrates disregard for these principles and an overemphasis on the Respondent's asserted parental rights. The law is clear: parental rights are not absolute; they are subordinate to the child's best interests. Immediate unsupervised contact in these circumstances is inconsistent with both Kenyan statutory law and recognized principles of child welfare. 12.That is crucial to note that the trial Magistrate failed to consider the Respondent's admitted history of abusive conduct, vulgar language, and threats to the Applicant, which directly inform his suitability as a caregiver. Evidence adduced in the trial included written communications in which the Respondent threatened to prevent the Applicant from seeing the child and used grossly offensive language. He admitted these statements in court, and they are corroborated by witness accounts and the Applicant's affidavits. Such conduct is not trivial; it is reflective of character and demonstrates a potential risk to the child's emotional and psychological safety. 13.Section 8(1)(a) of the Children Act requires courts to consider safety, protection from harm, and the overall welfare of the child. That the child's best Interests take precedence over procedural technicalities such as the requirement for security deposits when immediate harm is possible. 14.That the Respondent's prior conduct, including physical abuse during cohabitation and threats to the Applicant, illustrates that allowing unrestricted access would expose the minor to a risk of harm, contrary to statutory obligations and constitutional principles. Courts have consistently emphasized that in cases where a parent poses a potential threat, access must be conditioned and supervised, with necessary safeguards to protect the child. 15.That the trial magistrate further erred by failing to prioritize the child's best interests over the asserted rights of the Respondent. The minor has been thriving in a stable home environment under the care of the Applicant, with regular schooling, medical care, and emotional stability. The trial court did not consider the minor's current welfare, the quality of care provided by the Applicant, of the Respondent's consistent neglect, including his failure to contribute to maintenance. 16.Article 53(2) of the Constitution explicitly mandates that the child's best Interests are of paramount importance in every matter concerning the child. This principle has been affirmed in numerous cases, including MNN vs, S-MOK & Another [2017] eKLR, where the Court stressed that the welfare of the child must override the interests of either parent. 17.Similarly, the Children Act, 2001, Section 8(1), requires courts to make inquiries that assess the child's current environment, emotional, educational, and social well-being, none of which were adequately considered by the trial court in issuing extensive access orders. 18.That the Court must also recognize the cumulative effect of the Respondent's history of abuse, vulgarity, and threats. The minor has been shielded from these harmful influences since birth, and sudden exposure would destabilize his secure environment. Reliance was placed in JMM vs. PM [2018] eKLR, the Court emphasized that granting access without adequate safeguards can result in substantial loss and harm to a child. Therefore, the orders in question are not only unsupported by sufficient inquiry but are contrary to the statutory mandate to protect the child's welfare. 19.The Appellant submitted that in light of the foregoing, the trial magistrate erred in granting unrestricted access and partial custody to the Respondent, failed to consider his abusive and threatening conduct, and neglected to prioritize the child's best interests as required by law. Execution of these orders threatens to destabilize the minor's home environment, exposing him to emotional and psychological harm. 20.That the Appellant acted promptly in filing this appeal and requests that this Honourable Court set aside the impugned orders. 21.That this Court in its orders made on 19th February 2025 granted access to the Respondent father on Saturdays so as to give opportunity to him to bond with the child so that his access can be enhanced. The Appellant has religiously availed the child to him every Saturday though at time he does not show up for the child for weeks. 22.The Appellant urges the Court to order this access to continue and when the Appellant is more consistent with his access and bonding is enhanced, they can agree on more access time failing which either party can move the Children Court which has discretion and power to send a Children Officer to assess the relationship between father and son. 23.The Appellant submits that the appeal is meritorious, supported by statutory provisions, case law, and the compelling facts of this case. Respondent’s submissions 24.The Respondent submits that the Appellant has failed to establish any lawful or evidentiary basis to warrant the restriction of access to the minor. The allegations of abuse, threats, and misconduct relied upon by the Appellant were not substantiated before the trial court and remain unproven. 25.That no independent or corroborative evidence was presented to demonstrate that the Respondent poses any risk to the minor. In matters of this nature, the restriction of a parent's access rights is a grave measure that must be supported by cogent and credible evidence. Mere allegations cannot suffice. 26.The Respondent also submits that tit is evident that the child has a right to parental care and it is in the best interest of the child that he is brought up and cared for by his or her parent. This right can only be denied if it is proved with cogent evidence and valid grounds that a parent is not suitable or is incapable of taking care of the child. Ultimately, therefore, a child needs both of their parents, which is their right, especially where a parent's incapacity has not been proven (See MAK v RMAA & 4 Others [2023] KESC 21 (KLR) 27.Additionally, it is a known fact that the society in which children grow up shapes who they are. Having both a mother and father involved in a child's life can provide significant social, psychological, and health benefits. Further, the stability of having a relationship with both parents can provide security and greater opportunities for children to find their own paths to success. (See Supreme Court Petition 2 of 2022 Mutheu Agatha KhimuZu v Raheem Mehdi Aziz Azadand 4 Others [2023] eKLR) 28.It is submitted that it is in the best interest of a minor to have regular access to both parents. No parent has superior rights over the other and both ought to be allowed to interact with the minor. The only exception is if there exists a real threat that the child will be exposed to imminent harm and there is no evidence that the Respondent possess a threat to the minor. In the absence of proof of harm or risk to the child, there exists no legal justification for restricting the Respondent's access. The Appellant's case is therefore founded on speculation rather than evidence. (See RK v AN (Family Appeal E 028 of 2022) [2022] KEHC 10970 (KLR) (Family) (29 July 2022) (Ruling). 29.The Respondent submits that the orders granting access were fully consistent with the best interests of the child. Article 53(1) (e) of the Constitution guarantees every child the right to parental care and protection, including the equal responsibility of both parents. Article 53(2) further provides that a child's best interests are of paramount importance in every matter concerning the child.Section 11 of the Children's Act further provides that:“Every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with the parent or parents on a regular basis, unless it is shown to the satisfaction of the Court that such contact is not in the best interest of the child”. 30.In its ruling of 19th February 2025, this Honourable Court affirmed that a child benefits from the participation of both parents and that such interaction should not be unnecessarily curtailed. The court further found that no exceptional circumstances had been demonstrated to justify denying the Respondent physical access to the minor. 31.While the Court temporarily structured access to allow for gradual bonding, this was not a rejection of the Respondent's entitlement to access. Rather, it was a practical measure aimed at facilitating the child's adjustment, given the period of separation. The underlying principle remained intact: that the child should have a meaningful relationship with both parents. 32.The Appellant's position, if upheld, would have the effect of perpetuating the Respondent's exclusion from the child's life, thereby undermining the child's constitutional rights and exposing the child to the risk of parental alienation. Such an outcome would plainly be contrary to the child's best interest. 33.The Respondent submits that the learned trial magistrate properly and judiciously exercised its discretion when issuing orders of access to the minor, and the same should not be interfered with. The decision was grounded on the evidence and guided by the constitutional principle of the best interests of the child as captured above. 34.That the trial court considered the central issue before it, which was the welfare of the minor, and correctly applied the constitutional principle that the best interests of the child are paramount. The court further appreciated that the Respondent, being the biological father, has both a right and a responsibility to participate in the upbringing of the child. 35.The evidence on record showed that the Respondent had been denied access to the minor for a prolonged period, not out of disinterest, but due to the Appellant's conduct. In those circumstances, the trial court properly intervened to restore the parental relationship by granting access. That decision cannot be said to have been erroneous; rather, it reflects a sound application of both the law and the facts. 36.The Respondent thus submits that there is no basis upon which this Court can properly interfere with the trial court's exercise of discretion. The Appellant has not demonstrated any misdirection in law, misapprehension of facts, or improper exercise of discretion. The appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo & Another v Shah (1968) EA 93 at 96) 37.In the present case, the learned trial magistrate carefully evaluated the evidence on record, considered the applicable legal principles, and arrived at a reasoned and balanced decision aimed at safeguarding the best interests of the minor. The Appellant has merely invited this Court to substitute its own discretion for that of the trial court without demonstrating any legal or factual error. This is not a proper basis for appellate interference. 38.The Respondent, therefore, submits that the appeal does not meet the threshold for interference and ought to be dismissed and that the orders of the Lower court granting of access be upheld in their entirety. Children Officer’s Inquiry Report 39.On 3rd March 2026, this court directed the Children’s Department, Machakos County to prepare and file in Court a home study and/or an Inquiry Report particularly on the Father-Son bonding progress so far in this matter following the access orders issued by this court on 19th February 2025. 40.The Children Officer from Athi River Sub-County, Madam Mercy Muli filed in Court through the CTS an undated Inquiry Report after interviewing the Appellant on 28th May 2026, the Respondent on 2nd June 2026 and the subject minor separately after interviewing his father (the Respondent). 41.The inquiry report shows that the Children Officer’s interview with the minor at the Respondent (Father’s residence) on 2nd June 2026 following interaction withe the Respondent (just a month ago), the child herein appeared cheerful and comfortable. The minor informed the Officer that he enjoys spending time with his father, playing football, walking the dogs, watching movies and playing Fortnite on Xbox. The minor identified Miles, Trevor, Prince and Jamil as friends within the Respondent’s residential environment that he has so far made friendship with. The minor also reported enjoying time spent with paternal cousins during his recent visit. 42.The Children Officer further stated that the direct observation conducted on 2nd June 2026 established a positive and age-appropriate relationship between the Respondent and the minor. Communication was natural, affectionate and spontaneous. The minor voluntarily approached the Respondent, initiated conversations and engaged him in recreational activities. The Respondent demonstrated attentiveness, patience and warmth. The minor appeared genuinely comfortable and secure in the Respondent’s presence. The said report recommends as follows :-* The minor appears well-adjusted and maintains a positive relationship with both parents. The Applicant continues to provide primary care, while the Respondent has demonstrated commitment towards maintaining and strengthening his relationship with the child. Both homes were found suitable and the child’s welfare appears satisfactory, with parental conflict remaining the primary area of concern.* The minor should continue residing under the actual custody, care and control of the mother, as she has been the primary caregiver since separation and the minor appears settled in her care.* The father should continue enjoying reasonable and structured access to the minor to promote and preserve the existing positive father-child relationship observed during the home visit.* The current access arrangements may be maintained and progressively expanded where appropriate, subject to the child’s age, adjustment and continued positive interaction with both parents.* Both parents should ensure that the child is shielded from parental conflict, court disputes and negative discussions concerning either parent.* The parents should communicate respectively and directly regarding matters affecting the child, including education, healthcare, extracurricular activities and welfare needs.* Both parents should encourage the child to maintain a healthy and meaningful relationship with the other parent.* The minor should remain in the mother’s custody while the father continues to enjoy reasonable, structured and meaningful access, with both parents being encouraged to cooperate in all matters concerning the child’s welfare and development, as this arrangement best serves the child’s welfare and preserves the positive relationship observed between the child and both parents. 43.The Children’s Officer invited the Court to have the final word in deciding the matter. Analysis and Determination 45.As this is a first appeal, this court is called upon to re-evaluate, re-examine and reassess the evidence from the lower court and come up with its own deduction. See United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) EA 898. 46.Having evaluated the grounds of appeal, gone through the judgement of the Children’s court, submissions on the appeal and the comprehensive Inquiry Report by the Children’s Officer, Athi River Sub-county, the singular issue for my determination is whether the appeal has merit and what orders should issue. 47.The bone of contention in this appeal is on access of the minor by the Respondent who is his biological father. By a ruling delivered on 19th February 2025, this Court set aside the Children Magistrate’s part of judgement delivered at Mavoko Law Courts on 11/10/2024 in Children's Case No. E023 of 2022 granting unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays by the Respondent and substituted thereof with an order that the Respondent shall have physical access of the minor every Saturday as from 9.00 a.m. to 5.00 p.m. commencing the 2nd coming Saturday of the ruling to allow for Father-Son familiarization and for gradual bonding pending further orders of the court and or pending the hearing of this appeal. 48.First and foremost, I must say that upon considering the parties respective submissions, I observe that both the Appellant and the Respondent have referred to the Children Act, 2001 (No. 8 of 2001) which has since been repealed and replaced with the Children Act No. 29 of 2022. 49.The Appellant denied the averments in the Plaint and Counterclaimed seeking that the court grants her actual custody and both parties be granted joint legal custody. The Appellant sought for an order for the minor’s maintenance and an order restraining the Respondent from interfering whatsoever with the minor. 50.On the other hand, the Respondent craved for legal custody of the minor herein to be vested in both parents and the actual custody be vested in the Respondent and in the alternative, he be granted access to both parties. 51.It is in the welfare and best interest of the minor to benefit from access by both parents as they are his biological parents. 52.As was held by the Supreme Court in MAK v RMAA & 4 Others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment):-“The society in which children grew up shaped who they were. Having both a mother and father involved in a child’s life could provide significant social, psychological, and health benefits. The stability of having a relationship with both parents could provide security and greater opportunities for children to find their own paths to success. Even if circumstances may warrant limited access to a parent, a court should order supervised access. The Supreme Court had the constitutional obligation to ensure that the child had access to parental care and protection as enshrined in the Constitution”. 53.It is not, therefore, in the interest of justice to deny the child access to his father. I am cognizant of Article 19 of the African Charter on the Rights and Welfare of the Child, which stipulates that:“Every child is entitled to parental care and protection and shall, wherever possible, reside with his or her parents.” 54.In Bhutt v Bhutt Mombasa HCCC No. 8 of 2014 (O.S) the Court held that:“The best interests of a child are superior to the rights and wishes of parents and they incorporate not just the physical comfort of the child but the welfare in the widest sense” 55.I understand that for this court interfere with the discretion of the trial court, it should be demonstrated that the discretion of trial court was not supported by the facts, law or evidence. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.” 56.Under Article 18 of the Convention on the Rights of the Child, it is stated thus:“States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.” 57.Having considered the prayers sought in the appeal, this court will proceed to summarily decline to grant any of the them as none is incapable of being granted in the circumstances of this matter. 58.On access, it is in the best interest of a minor to have regular access to both parents. No parent has superior rights over the other and both ought to be allowed to interact with the minor. The only exception is if there exists a real threat that the child will be exposed to imminent harm. 59.The Appellant has not satisfied this court that the finding of the trial court on access is against the welfare and best interest of the minor or denies or bars the Appellant's parental rights. The Appellant has also not demonstrated that access of the minor by the Respondent poses a potential threat to the welfare of the minor herein, she has further failed to show that the Appellant does not show up for the child for weeks. 60.None of the Parties has challenged the contents of the Children Officer’s inquiry report filed in this matter including the observations and recommendations made therein. 61.The access orders issued by this court on 19th February 2025 have impactfully assisted in the enhanced bonding progress of the Respondent and the minor leading to stronger Father-son relationship which has to be maintained. 62.Being guided by the observations and recommendations contained in the Children Officer’s inquiry report filed herein as set out in this judgement, I will make the following orders: -a.The Orders issued by this court on 19th February 2025 on access of the minor by the Respondent are to remain in force in that the Respondent shall have physical access of the minor every Saturday as from 9.00 a.m. to 5.00 p.m. to allow for a compatible Father-Son bonding which so far is progressing well as per the Children Officer’s inquiry report. However, Parties may agree to vary the access should a particular Saturday not be convenient for compliance of the access order.b.The access arrangement in (a) above to be reviewed after six (6) months of this judgement and or for further orders of the Court.c.School placement for the child herein to be mutually discussed and considered by his parents (the parties) in this matter.d.The matter to be mentioned after six months for further orders.e.There shall be no orders as to costs. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 23RD JULY 2026NOEL ADAGIJUDGE