[2011] KEHC 2789 (KLR)
The court found that since the minor had been living with the father both before and after the subordinate court proceedings, and considering the child's schooling in Kapsabet and the mother's residence and work in Nairobi, it was in the best interests of the child to maintain the status quo. The court held that...
Source-derived case information.
- Citation
- [2011] KEHC 2789 (KLR)
- Parties
- Appellant: Douglas Adagala Mwandishi; Respondent: Susan Ingosi Adewa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 158 of 2010
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Stay Pending Appeal
- Outcome
- Interim custody of the minor to remain with the appellant (father) pending hearing and determination of the appeal.
- Legal Topics
- Child Custody, Interim Orders, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Adagala Mwandishi
Appellant
Susan Ingosi Adewa
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Stay Pending Appeal
Legal Issues
- 1 Whether interim custody of the minor should remain with the father pending the hearing of the appeal.
- 2 Whether maintaining the status quo is in the best interests of the child.
Ratio Decidendi
The court found that since the minor had been living with the father both before and after the subordinate court proceedings, and considering the child's schooling in Kapsabet and the mother's residence and work in Nairobi, it was in the best interests of the child to maintain the status quo. The court held that changing custody at this stage would be disruptive. Therefore, the appellant (father) should retain custody of the minor until the appeal is heard and determined, and the appeal should be fixed for hearing on a priority basis to conclusively resolve all issues.
Court Disposition
Interim custody of the minor to remain with the appellant (father) pending hearing and determination of the appeal.
Orders
- The appellant shall retain custody of the minor until the appeal is heard.
- The appeal to be fixed for hearing on a priority basis.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO. 158 OF 2010
DOUGLAS ADAGALA MWANDISHI.................................................................. APPELLANT
VERSUS
SUSAN INGOSI ADEWA ..................................................................................RESPONDENT
R U L I N G
1. This Appeal relates to the custody of a minor, in a matter pitting her parents. In a Ruling delivered on 19. 11. 2010, the learned magistrate, Mrs. M. Moranga, SRM, granted interim custody to the mother and that order triggered the present Appeal.
2. Further, by an Application dated 1. 2.2010, the Appellant, who is the father of the minor, seeks an order of stay pending the hearing of the Appeal. I have read the Supporting Affidavit sworn on 1. 2.2010 as well as the Replying Affidavit sworn on 28. 2.2011 by the mother, who is the Respondent. I also interviewed the minor, privately, on 1. 3.2011 before allowing the father to maintain custody.
3. Having given the temporary order of stay and the minor having lived with the father prior to the proceedings before the subordinate court and even subsequent to these proceedings, it is in the best interest of the child that I should maintain the status quo and order that the Appeal be fixed for hearing on a priority basis and all the issues obtaining, be conclusively determined. To make any other order will be disruptive to the child, more so where she attends school in Kapsabet and her mother works and resides in Nairobi.
4. In the event, I will extend the orders that the Appellant shall retain custody of the minor until the Appeal is heard.
5. Let dates for hearing of the Appeal be taken upon delivery of this Ruling.
6. I shall make no order as to costs.
7. Orders accordingly.
Delivered, dated and signed at Kakamega this 14th day of April, 2011.
ISAAC LENAOLA
J U D G E