[2021] KEHC 3863 (KLR)

[2021] KEHC 3863 (KLR)

The High Court found that the trial magistrate erred by awarding actual custody of a child of tender years to the father without analyzing whether exceptional circumstances existed to displace the presumption in favour of the mother. The court also held that split custody of siblings of tender years is generally disfavoured unless justified by exceptional circumstances, and the trial magistrate failed to analyze the impact of separation on the children. The absence of a social inquiry report and failure to ascertain the wishes of the children rendered the custody award premature. Additionally, the trial court did not consider the respondent's conduct in obtaining custody of GLS by...

Citation
[2021] KEHC 3863 (KLR)
Parties
Appellant: AWK; Respondent: JS
Court
High Court
Court Station
High Court at Nakuru
Jurisdiction
Kenya
Judgment Date
23 September 2021
Case Number
Children's Appeal Case E06 of 2020
Procedural Posture
Children Appeal / Judgment on First Appeal
Outcome
appeal allowed; trial court judgment set aside; case remanded for rehearing
Judges
EM Ngugi
Legal Topics
Child Custody, Best Interests of Child, Split Custody, Social Inquiry Report, Children of Tender Years, Parental Responsibility
Source Language
English
Family and Children Child Custody Best Interests of Child Split Custody Social Inquiry Report Children of Tender Years Parental Responsibility

Case Brief

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Parties

AWK

Appellant

JS

Respondent

Procedural Posture

Children Appeal / Judgment on First Appeal

Legal Issues

  1. 1 Whether the trial court erred in awarding custody of a child of tender years to the father without impeaching the mother's suitability.
  2. 2 Whether the trial court erred by favouring the status quo despite evidence of unlawful removal of the child from the mother.
  3. 3 Whether the trial court erred by splitting custody of siblings and failing to consider the impact of separation.

Ratio Decidendi

The High Court found that the trial magistrate erred by awarding actual custody of a child of tender years to the father without analyzing whether exceptional circumstances existed to displace the presumption in favour of the mother. The court also held that split custody of siblings of tender years is generally disfavoured unless justified by exceptional circumstances, and the trial magistrate failed to analyze the impact of separation on the children. The absence of a social inquiry report and failure to ascertain the wishes of the children rendered the custody award premature. Additionally, the trial court did not consider the respondent's conduct in obtaining custody of GLS by...

Court Disposition

appeal allowed; trial court judgment set aside; case remanded for rehearing

Orders

  • The judgment of Honourable B.B. Limo, SRM dated and delivered on 3rd December, 2020 is set aside.
  • The case is remanded back to the Trial Court for rehearing in accordance with the guidance provided in this judgment.