[2011] KEHC 3044 (KLR)

[2011] KEHC 3044 (KLR)

The court found that the subordinate court failed to properly apply the legal principles governing custody of children of tender years, particularly the presumption in favour of the mother unless special circumstances are shown. The respondent did not demonstrate any such special circumstances. The court held that...

Source-derived case information.

Citation
[2011] KEHC 3044 (KLR)
Parties
Appellant: D.K; Respondent: J.K.N
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
8 April 2011
Case Number
Civil Appeal 54 of 2010
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay and Interim Custody Pending Appeal
Outcome
Application allowed in part; stay of subordinate court's order granted; joint custody ordered with actual custody to appellant; structured visitation to respondent; no order as to costs.
Judges
LK Kimaru
Legal Topics
Child Custody, Best Interest of Child, Interim Orders, Stay of Execution
Source Language
english
Family and Children Civil Procedure Child Custody Best Interest of Child Interim Orders Stay of Execution

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Summary, issues, holding and outcome

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Parties

D.K

Appellant

J.K.N

Respondent

Procedural Posture

Civil Appeal / Ruling on Interlocutory Application for Stay and Interim Custody Pending Appeal

Legal Issues

  1. 1 Whether the appellant established sufficient grounds for stay of the subordinate court's order denying her custody of the child pending appeal.
  2. 2 Whether interim custody should be granted to the appellant in the best interest of the child.
  3. 3 Whether the subordinate court properly applied the legal principles governing custody of children of tender years.

Ratio Decidendi

The court found that the subordinate court failed to properly apply the legal principles governing custody of children of tender years, particularly the presumption in favour of the mother unless special circumstances are shown. The respondent did not demonstrate any such special circumstances. The court held that the best interest of the child, a girl of nine years, required that the mother have actual custody pending appeal. The appellant established that she would suffer substantial loss if the order was not stayed. Accordingly, the court stayed the subordinate court's order and granted joint custody, with actual custody to the appellant and structured visitation rights to the respondent.

Court Disposition

Application allowed in part; stay of subordinate court's order granted; joint custody ordered with actual custody to appellant; structured visitation to respondent; no order as to costs.

Orders

  • Stay of the subordinate court's order granting custody to the respondent pending appeal.
  • Joint custody of the child granted to both parties with equal parental responsibility.