[2012] KEHC 5678 (KLR)
The court found that the wife, having actual custody and having placed the child in boarding school, acted in the best interest of the child by insulating him from parental conflict and potential trauma. The husband.s desire for day school and actual custody was deemed ill-conceived given the estrangement and...
Source-derived case information.
- Citation
- [2012] KEHC 5678 (KLR)
- Parties
- Appellant: David Wakaba Moche; Respondent: Grace Gathoni Wambui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 77 of 2011
- Procedural Posture
- Succession Cause / Interlocutory Application; Reasons for Interim Orders Pending Appeal
- Outcome
- Interim orders granted: each parent to have custody of the child for half of the school holidays; further proceedings in the lower court stayed pending appeal; no order as to costs.
- Legal Topics
- Child Custody, Access Rights, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wakaba Moche
Appellant
Grace Gathoni Wambui
Respondent
Procedural Posture
Succession Cause / Interlocutory Application; Reasons for Interim Orders Pending Appeal
Legal Issues
- 1 Whether the husband should be granted actual custody of the minor child or equal access to the child.
- 2 Whether the wife.s decision to place the child in boarding school was in the best interest of the child.
- 3 Whether further proceedings in the lower court should be stayed pending appeal.
Ratio Decidendi
The court found that the wife, having actual custody and having placed the child in boarding school, acted in the best interest of the child by insulating him from parental conflict and potential trauma. The husband.s desire for day school and actual custody was deemed ill-conceived given the estrangement and ongoing disputes between the parties. The court therefore ordered that each parent have custody of the child for half of the school holidays, ensuring both parents maintain a relationship with the child while prioritizing the child.s emotional stability and welfare. Further proceedings in the lower court were stayed pending the outcome of the appeal to prevent prejudice and...
Court Disposition
Interim orders granted: each parent to have custody of the child for half of the school holidays; further proceedings in the lower court stayed pending appeal; no order as to costs.
Orders
- Each parent shall have custody of the child for half of the school holidays.
- Further proceedings and/or execution in Nairobi Senior Resident Magistrate Court Case No.747 of 2011 are stayed pending the outcome of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 77 OF 2011
DAVID WAKABA MOCHE ………………...........………… APPELLANT
VERSUS
GRACE GATHONI WAMBUI ………......................………. RESPONDENT
REASONS FOR DECISION
On 20. 1.2012, this court granted orders in terms of prayers (c) and (d) of the Application by Notice of Motion dated 20. 12. 2011 and ordered that each parent would have access and custody of the minor for half of the holiday period. The effect of granting orders in terms of prayers (c) and (d) is that the further proceedings and/or execution in Nairobi Senior Resident Magistrate Court Case No.747 of 2011 was stayed pending the outcome of the Appeal in this court.
The trial court dismissed the entire suit with costs to be borne by the husband, David Wakaba Moche. The husband had sought actual custody of the minor and reasonable access to the defendant, Grace Gathoni Wambui or equal access by the parties to the child. The husband acknowledged in his averments in the plaint in the trial court
that the wife had actual custody and he averred that he feared the wife might deny him access to the child.
The child is aged 13 years. He is said to be attending School at Imani School, Thika. He is a boarder. The parties are estranged. The husband is unemployed. The wife is in gainful employment. The child is at a very critical age and needs emotional stability so as to do well in school. It would not auger well to allow him to be pulled this way and that like a rag doll. The wife has actual custody and it is she who has placed the child in a boarding school. At a time when the couple are living apart and are wrangling, the decision by the wife to place the child in boarding school was wise as it served to insulate the child from exposure to marital friction and possible trauma. That decision was in the best interest of the child. The husband’s desire to keep the child in day school in the circumstances where the spouses did not see eye to eye nor were they ready to live under one roof was certainly ill-conceived. It is for this reason that I ordered on 20. 1.2012 that the parties shall each have custody of the child for half of the school holidays.
In the meantime, the husband shall proceed to prosecute the appeal. I make no order as to costs.
Dated at Milimani Law Courts, Nairobi, this 8th day Of March 2012.
G.B.M. KARIUKI, SC
JUDGE
COUNSEL APPEARING
Mrs. Wambugu of W. G. Wambugu & Co.advocates, for the Appellant/Applicant
Mr.Mbuthia of B. N. Mbuthia & Co. advocates, for the Respondent
Mr. Kugwa – Court Clerk