[2023] KEHC 24433 (KLR)

DG v ROO (Civil Appeal E113 of 2021) [2023] KEHC 24433 (KLR) (Family) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24433 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E113 of 2021

MA Odero, J

October 27, 2023

Between

DG

Appellant

and

ROO

Respondent

(Being an Appeal against the judgement entered by Honourable Festus Terer (RM) dated 3rd September, 2021 in Nairobi Children’s Court Case No. E107 of 2021)

Judgment

1. Before this Court for determination is the Amended Memorandum of Appeal dated 2nd February 2022 by which the Appellant DOROTHY GAZARWA seeks the following orders:-“1. That the Appeal be allowed.2. That the orders of access given by the trial court in its judgement made on 3rd September 2021 be set aside and substituted with the following orders:-2A That the Respondent will have telephone and video access to the minor for once a week on Saturday afternoon.2B That the Respondent is at liberty to visit the minor on alternate Saturdays in Uganda or Ethiopia or wherever the Appellant is resident with the minor and spend time with the minor between 9. 00a.m to 5. 00 p.m of the same day in the presence of the Appellant or a person the minor is familiar with.2C That the access arrangement in 2A above and 2B above to continue in place for at least two (2) years when the lower court may review the same on application by either party subject to the Respondent submitting himself to counselling.3. Thatthe Judgement entered on 3rd September, 2021 by the Honourable Festus Terer (RM) in Nairobi Children’s Court Case No. E107 be set aside.4. Thatthe cost of the Appeal to be award to the Appellant.”

2. The Respondent Ronald Odhiambo Omutheopposed the Appeal. The matter was canvassed by way of written submissions. The Appellant filed the written submissions dated 20th March 2023 whilst the Respondent relied upon her written submissions dated 9th May 2023.

Background 3. The Appellant a Ugandan National and the Respondent a citizen of Kenya herein got married to each other in April 2016. The couple had a son together named Aaron Jayson Omuthe who was born on 28th June 2017.

4. The Defendant filed in the Magistrates Court Divorce Cause No. 1158 of 2020. The Respondent also filed Nairobi Children’s Case No. E107 of 2021 seeking that the minor be enrolled in a school in Nairobi. He also sought that the Appellant (child’s mother) who due to the nature of her employment frequently travelled and worked out of the country be granted access to the minor when she is on leave from non family duty stations.

5. The suit was heard inter parte and on 3rd September Hon. F. Terer Resident Magistrate delivered a judgement in which he made the following orders:-(1)Thatthe legal custody of the minor A.A shall jointly vest in the Plaintiff and the Defendant.(2)Thatactual custody shall vest in the Defendant/Mother(3)Thatthe Plaintiff/Father is granted access as follows:a)On alternate weekends from Saturday 9. 00am to Sunday 5. 00 p.m. during school days. The access shall take place in Addis Abba, Ethopia. Parties to agree on pick-up and drop-off points;b)On alternate weekends from Friday evening to Sunday evening in Kenya should the Defendant relocate to Kenya;c)During school holidays at a ratio of 50:50;d)During special holidays like Easter, Christmas and New year on alternating basis;e)During special days like birthdays on alternating basis;f)At school subject to school rules and regulations;(4)That each party to bear own costs and Parties are at liberty to apply.”

6. Being aggrieved by this judgement the Appellant filed the Memorandum of Appeal dated 27th September 2021 which was later amended on 2nd February 2022. In the said Amended Memorandum of Appeal the following grounds were raised:“1. That the learned Magistrate of the trial court erred in law and in fact in finding that the Appellant had pegged the Respondent’s access to the minor on the basis of the Respondent providing for and maintaining the minor, facts which were neither alluded to nor pleaded during the trial;2. That the learned Magistrate of the trial court erred in law and in fact in failing to interrogate and take into account the evidence that had been adduced via the Appellant’s list of Documents dated 2nd June 2021, Certificate of Electronic Evidence dated 9th June, 2021 and the evidence presented before the Honourable Court for consideration before arriving at his determination, specifically on a contested issue of the Respondent’s state of mind without calling expert evidence on the same as sought by the Appellant.3. That the learned Magistrate of the trial court erred in law by failing to take into account the laid-out principles that need to be applied in and before making custody orders concerning a minor;3. A The learned trial Magistrate erred by failing to take into account the long period of time the minor has not been with the Respondent owing to the parties failed marriage and work commitments, before granting the Respondent overnight and half holidays access to the minor.3. B The learned trial Magistrate erred by granting the Respondent overnight access to the child and half holidays without providing for bonding and or familiarization period between the child and the Respondent noting that the child is only four (4) years old and has never been with him long enough to know him, and that it would traumatize the child to go off with him, and thereby failed to take into consideration the best interests of the child.3. C The learned trial Magistrate erred by not calling for a Children Officer’s Report to ascertain that the Respondent had a proper home and circumstances that would enable hem cater for a four (4) year old child in the absence of the mother .4. That the learned Magistrate of the trial court erred in fact in failing to take into account the peculiar and knotty circumstances of the minor and the toxicity exuded by the Respondent towards the Appellant to the extent of sending false and harmful emails to the Appellant’s colleagues and employer and the request by the Appellant for visitation, if so ordered by the Honourable Court, to take place at the Appellant’s permanent address in Kampala Uganda and not Addis-Ababa, Ethiopia where she works so that the Appellant’s source of livelihood is not jeopardized.4. A The learned trial Magistrate erred in law ordering that the Respondent should not access the child in Uganda, while failing to consider that; Uganda is the native country of the Appellant and her permanent home; that the parties marriage was at an end and there are pending divorce proceedings and therefore the Appellant is unlikely to settle back in Kenya: and that Ethiopia (currently in civil conflict) was only a work station for the Appellant not her permanent home.5. That the learned Magistrate of the trial court erred in law and in fact failed to effectively take into consideration the averments contained in the Appellant’s statement of Defence dated 29th March 2021, Witness Statement dated 9th June, 2021, the Appellant’s testimony given before the court in a virtual haring conducted on the 29th July, 2021 and the written submissions filed by the Appellant.

7. As stated earlier the Appeal was opposed.

Analysis and Determination 8. This being a first appeal, it is the duty of the court to review the evidence adduced before the lower court and draw its own conclusions. In Selle & Another v Associated Motor Boat Company Ltd & Others [1968] E.A. 123 it was held that:-“An appeal to this court from trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions through it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial Judge’s findings of facts if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally…”

9. Similarly, the Court of Appeal in Kiruga v Kiruga & Another [1988] eKLR 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.”

10. This court cannot lose sight of the fact that this matter relates to the custody, and welfare and maintenance of a minor. It is trite law that in matters concerning the welfare of children courts are required to give priority to the best interest of the child.

11. The Constitution of Kenya 2010 provides at Article 53 (2) that:-“(2)A child’s best interest are of paramount importance in every matter concerning the child.”

12. Likewise Children Act 2022 at Section 8(1) provides as follows:-“(8)(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;” [own emphasis]

14. The Appellant did not challenge the entire judgement of the Childrens Court. The Appellant took no issue with the orders which the court made with respect to the custody of the minor.

15. The Appellant however took issue with the court’s restriction of the Respondents access to the minor only to Ethiopia whilst forbidding access to the minor in Uganda which is the home country of the Appellant.

16. In that regard the trial court observed as follows:-“As such and so as to maintain order and certainty in the manner in which parties discharge their parental Responsibility over the minor. The court deems the Defendants (mother’s) current residence in Addis Ababa as the minor’s fixed place of abode. As such any order on access will be made with this in mind.” [own emphasis]

17. It must be remembered that at the time the Children Court wrote its judgement the Appellant was living and working in Addis Ababa, Ethiopia where she had the minor in her custody. It therefore made sense that orders be made for the Respondent be allowed to access the minor in Ethiopia.

18. However, the situation has now changed. The Appellant submitted that due to political strife in Ethiopia and the consequent deterioration of the security situation in that country her employer the United Nations evacuated its staff out of Ethiopia. That the Appellant moved back to her home country Uganda which is her permanent residence where she now resides and the minor is enrolled in elementary school in Kampala, Uganda.

19. I have carefully and anxiously perused the judgement of the trial court. Nowhere did the trial magistrate make orders expressly forbidding the Respondent to access the child in Uganda.

20. What the trial magistrate rejected was the Appellant’s proposal that the Respondent access the child at her mother’s residence in Uganda. In this regard the trial court stated as follows:-“While on this I note that the Defendant had proposed the Plaintiff to access the minor in Uganda from her Mother’s residence. I overrule this proposal. From my findings above, nothing stops the plaintiff from accessing the minor from the Defendant’s current town of residence.” [own emphasis]

22. It is clear that what the court overruled was the Appellant proposal to have the Respondent access the child at her mother’s residence in Uganda. The trial Magistrate rightly in my view found that it made more sense for the Respondent to access his child at the Appellant’s own residence in Ethiopia.

23. The trial Magistrate merely made a decision in view of the circumstances which were prevailing at that time i.e. the mother resided in Ethiopia whilst the Father lived in Nairobi, Kenya. The court did not consider Uganda as a venue for access because none of the parties was at the time resident in Uganda.

24. In the circumstances I cannot fault the trial Magistrate for making orders for access only in Addis Ababa, Ethiopia.

25. It is manifest that there has been a change in the circumstances, specifically the residence of the mother who was granted actual custody of the minor. The Appellant states that she now resides in Uganda. The proper thing would have been for the Appellant to seek a review of the judgement on account of her new location/residence.

26. Be that as it may I find it prudent to now vary the orders made by the trial court and direct that the place of access for the time being be Uganda.

27. The second ground of challenge to the judgement of the Children’s Court was that the court had granted the Respondent overnight access without providing for a bonding period between the minor and his father who according to the Appellant the child barely knew. A child has the right and indeed it serves the best interests of the any child to have regular contact and interaction with both parents. The only way this child will get to know his father is by visiting him.

28. The Appellant had initially argued in the trial court that the Respondent’s access to the minor be made dependant on the production of a mental assessment report in respect of the Respondent. The trial court however found that the allegations of mental instability made by the Appellant against the Respondent had no basis. I do agree with this finding by the trial court.

29. All in all I find no tangible reason why the Respondent should be denied overnight access to his son. The child lives in a different country. It would be impracticable to only allow day access. If the Appellant is concerned that the minor is not fully familiar with his father then she can send a person the child trusts like a Nanny to accompany the minor for the period of overnight access. I therefore dismiss this ground of the appeal.

30. Finally the Appellant claim that the trial court erred in finding that the Appellant had pegged the Respondents right to access to the minor on the Respondents providing for the maintenance for the minor facts which the Appellant alleges were neither pleaded nor alluded to during the trial.

31. On this aspect the learned trial Magistrate observed as follows:-“One other aspect of access that should not escape my attention is the Defendant’s act of conditioning and/or pegging access to provision for the minor. That the Plaintiff has not been providing for the minor and should therefore not be granted custody or access. I respectfully disagree with the Defendant and find that the Plaintiff has a right to participate in the life of the minor irrespective of whether or not he has been discharging his parental responsibilities towards him. If it was the case that he was not doing so, then the Defendant was always at liberty to initiate legal action for him to be compelled to do so.”

32. Whilst I do agree with the learned trial Magistrate that access to a child ought not be pegged on whether or not that particular parent has been providing for the maintenance of said child, my perusal of the record indicates that at no time did the Appellant raise this issue during the trial or in her pleadings.

33. All that the Appellant stated was that the Respondent had not been providing for the child, leaving her to meet all the maintenance costs for the child. The Appellant did not however suggest that the Respondent should be denied access on account of his failure to provide maintenance. I do agree that in the circumstances the learned trial Magistrate erred in making the above finding.

34. Finally, the Appellant faults the trial court for failing to make orders with respect to the maintenance of the child. In my view the issue of maintenance is best handled initially in the Children’s Court. The Appellant is at liberty to file a suit for maintenance in the Children’s Court.

34. Finally, this appeal is partially successful. This court makes the following orders:-

(1)The orders made on 3rd September 2021 are hereby varied in respect to access only as follows:-(a)The Respondent shall have video and /or telephone access to the minor once a week on Saturday at a time convenient to both parties.(b)The Respondent shall have access to visit the child on alternate weekends from Saturday 9. 00 am to Sunday 5. 00p.m. during the school term. The access shall take place in Kampala, Uganda or at whichever location the Appellant is residing with the child. Parties to agree on pick-up and drop-off points.(c)All other conditions and modalities of Access will remain as per the judgement dated 3rd September, 2021. (2)For avoidance of doubt, the orders on custody remain as per the judgement delivered on 3rd September 2021. (3)This being a family matter each side will meet is own costs.

DATED IN NAIROBI THIS 27TH DAY OF OCTOBER, 2023. .......................................MAUREEN A. ODEROJUDGE