https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/361

AWW v JWW (Children's Case E010 of 2026) [2026] KEMC 361 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEMC 361 (KLR) Republic of Kenya In the Nyeri Law Courts Children's Case E010 of 2026 MM Gituma, SRM July 29, 2026 Between AWW Plaintiff and JWW Defendant Judgment 1.The Plaintiff states that she and the Defendant are the biological parents of F.W.W-17 years, A.W.W-13 years, and Z.W.W-5years. She claims that the three minors have been in her custody since birth. She laments that the Defendant has neglected and/or failed to assume parental responsibility for the three minors as he has not provided any financial, physical or emotional support towards their upbringing. 2.The Plaintiff claims that the Defendant has been absent in the lives of the minors and has not demonstrated any interest in them. She urges the court to note that she has solely provided food, shelter, clothing, education and medical care for the three minors. The Plaintiff states that she has at all times acted in the best interest of the three minors and has provided them with a stable and conducive environment for their upbringing. 3.For these reasons, the Plaintiff seeks legal custody, actual and physical custody of the three minors to enable her make decisions regarding their welfare without interference, any other order that the court may deem fit and just in the best interest of the minors and costs of the suit. 4.Despite being served with summons to enter an appearance, the Defendant neither entered an appearance nor filed a defence. Consequently, an interlocutory judgment was issued and the matter proceeded by way of formal proof. Hearing 5.When the matter came up for hearing, the Plaintiff adopted her statement dated 8th April 2026 as her evidence in chief. The statement was a reiteration of the Plaint. She produced three birth certificates for the three minors as part of her evidence. The Determination 6.The Plaintiff seeks legal custody and physical custody of the three minors. She explains that she has solely provided food, shelter, clothing and medical needs for the three minors at the exclusion of the Defendant who is the minors’ biological father. From the evidence of the Plaintiff, the three minors are in her custody. She has physical custody of the three minors. The issue would be whether the Plaintiff should also have sole legal custody of the three minors. 7.Article 53 of the Constitution provides for the rights of children. It reads as follows:53.(1)Every child has the right—(a)to a name and nationality from birth;(b)to free and compulsory basic education;(c)to basic nutrition, shelter and health care;(d)to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and(f)not to be detained, except as a measure of last resort, and when detained, to be held—(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that take account of the child’s sex and age.(2)A child’s best interests are of paramount importance in every matter concerning the child 8.The spirit of the above Article is also echoed in the Children Act, 2022. In determining the issue of legal custody, the paramount consideration should be the best interest of the minors. Section 8 of the Children Act, 2022 provides for the best interest of a child. It reads as follows:8.Best interests of the child(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.(2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.(4)The Cabinet Secretary shall issue guidelines to give effect to this section. 9.Other than the best interest of the child, the court is also governed by other principles when determining custody. These principles are enumerated under Section 103 of the Act as: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;(g)whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force;(h)the circumstances of any sibling of the child concerned, and of any other children of the home, if any;(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. 10.In this case, the Plaintiff seeks legal custody of the minors on the grounds that she has solely provided for their needs without any assistance from the Defendant. The Defendant has neglected his responsibilities. Further, having sole custody both legal and physical would enable her to make decisions involving the minors without interference. In my view, the Plaintiff can maintain physical/actual custody of the three minors. However, it would not be prudent to deny the Defendant legal custody of the minors without any cogent evidence to show that he no longer has interest in the children. In the alternative, that the Defendant has exhibited behavior or conduct that is unbecoming requiring his parental rights to be limited and/or completely extinguished. Further, there is no evidence that the Plaintiff has solely provided for the needs of the three children without any assistance from the Defendant and even if this court were to believe that the Plaintiff has done so, this would not be a sufficient ground to deny the Defendant legal custody. 11.For these reasons, orders will issue as follows:a.The Plaintiff and the Defendant will have joint legal custody of the three minors: F.W.W, A.W.W and Z.W.W.b.The Plaintiff will have physical/actual custody of the three minors:F.W.W, A.W.W and Z.W.W.c.This being a children matter, there shall be no orders as to costs. DATED, SIGNED AND DELIVERED IN NYERI THIS 29TH DAY OF JULY 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:…………………………..………………Plaintiff…………………………………………..Defendant…………………………………….Court Assistant