[2012] KEHC 1651 (KLR)

[2012] KEHC 1651 (KLR)

The court found that the best interests of the children, aged 8 and 6, would be served by granting physical custody to their mother (the appellant) to facilitate their psychological and social support. The court considered the children's own preferences, which favored returning to Busy Bee Private School and living with their mother, despite acknowledging the superior facilities at Lukenya Academy. The court also recognized the established principle that children of tender age should remain with their mother. Accordingly, the court granted physical custody to the appellant, ordered the children's return to Busy Bee Private School pending appeal, and stayed the lower court's ruling and...

Citation
[2012] KEHC 1651 (KLR)
Parties
Appellant: B.M.; Respondent: S.M.M.
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
23 October 2012
Case Number
Civil Appeal 3 of 2012
Procedural Posture
Civil Appeal / Interlocutory Application (ruling on Notice of Motion for Custody and Stay Pending Appeal)
Outcome
Application allowed in part; physical custody granted to appellant; stay of lower court ruling and proceedings; children to return to Busy Bee Private School pending appeal; costs in the appeal.
Judges
EM Muriithi
Legal Topics
Child Custody, Best Interests of Child, Interlocutory Orders, Schooling Decisions
Source Language
English
Family and Children Child Custody Best Interests of Child Interlocutory Orders Schooling Decisions

Case Brief

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Parties

B.M.

Appellant

S.M.M.

Respondent

Procedural Posture

Civil Appeal / Interlocutory Application (ruling on Notice of Motion for Custody and Stay Pending Appeal)

Legal Issues

  1. 1 Whether the physical custody of the children should be granted to the appellant pending appeal.
  2. 2 Whether the children should return to Busy Bee Private School or remain at Lukenya Academy.
  3. 3 Whether a stay of the ruling and proceedings in Tononoka Children Case No. 652 of 2012 should be granted.

Ratio Decidendi

The court found that the best interests of the children, aged 8 and 6, would be served by granting physical custody to their mother (the appellant) to facilitate their psychological and social support. The court considered the children's own preferences, which favored returning to Busy Bee Private School and living with their mother, despite acknowledging the superior facilities at Lukenya Academy. The court also recognized the established principle that children of tender age should remain with their mother. Accordingly, the court granted physical custody to the appellant, ordered the children's return to Busy Bee Private School pending appeal, and stayed the lower court's ruling and...

Court Disposition

Application allowed in part; physical custody granted to appellant; stay of lower court ruling and proceedings; children to return to Busy Bee Private School pending appeal; costs in the appeal.

Orders

  • Physical custody of the children is granted to the appellant.
  • Pending determination of the appeal, there shall be a stay of the ruling of the Tononoka Children Court in Case No. 652 of 2012.