https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6619

EAO v CEOO (Civil Appeal E017 of 2025) [2026] KEHC 6619 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6619 (KLR) Republic of Kenya In the High Court at Kilgoris Civil Appeal E017 of 2025 CM Kariuki, J May 18, 2026 Between EAO Appellant and CEOO Respondent (Being an Appeal from the Judgment of Hon. C W Waswa (SPM) delivered in Kilgoris Principal Magistrate’s Court, Children's Case No. E012 of 2025 on 4th September 2025) Ruling 1.The applicant/appellant instituted Children’s Case No. E012 of 2025 before the Chief Magistrate’s Court at Kilgoris seeking custody and maintenance orders in respect of the minors. 2.The matter was heard by Hon. C W Waswa (SRM), and judgment was delivered on 4th September 2025. 3.In the said judgment, the trial court ordered that the respondent continue having actual custody of the minors, while the applicant/plaintiff was granted access rights. The respondent was further directed to continue catering for the minors’ basic needs. 4.During the proceedings before the trial court, the minors were accorded an opportunity to express their wishes. 5.RN, who is in form four, informed the court that she was residing with the respondent/father, was comfortable staying with him, and that he was adequately providing for her basic needs. 6.KO, aged 9 years, testified that he was living with his father and sister, was comfortable there, and wished to continue staying with them as his father was taking care of him. 7.In arriving at its decision, the trial court relied on article 53(2) of the Constitution of Kenya, 2010, and the decision in FSC v FNK, Civil Appeal No. E060 of 2021 (2022) eKLR, which reaffirmed the principle that the best interests of the child are of paramount importance in every matter concerning the child. 8.The trial court also relied on section 8(3) of the Children Act, 2022, which requires that a child be accorded an opportunity to express their opinion, taking into account the child’s age and level of maturity. Consequently, the court made the following orders:i.Custody of the minors was granted to the defendant/respondent.ii.The plaintiff/applicant was granted access to the minors.iii.The defendant/respondent was to continue providing for the minors’ basic needs. 9.Aggrieved by the said decision, the plaintiff, now the appellant, filed the present appeal together with a notice of motion dated 4th May 2026 seeking, inter alia:i.The applicant has failed to comply with the court's custody orders by refusing to release the minor KO to the respondent, who currently holds lawful custody. Respecting court orders is essential to uphold the rule of law and ensure the child's stability.ii.Interim stay of the trial court’s orders granting custody to the respondent. 10.The application is supported by the affidavit of the applicant, sworn on 4th May 2026. The grounds advanced are that:i.The guiding principle in this matter remains the child's best interests, as enshrined in article 53(2) of the Constitution and the Children Act, 2022. The court's role is to ensure these interests are prioritised in all decisions concerning the child.ii.The respondent allegedly abandons the child under the care of the grandmother; andiii.The court notes with concern that the minor KO, who should be attending school and enjoying stability, has been unlawfully withheld by the applicant. This action risks the child's well-being and is not in his best interests, especially regarding his right to education and stability. 11.Should the applicant wish to contest the custody arrangement, the proper procedure is to pursue the appeal and seek appropriate interim orders from this court, rather than unilaterally withholding the child, thereby ensuring procedural fairness. 12.The respondent further states that the minor requested transport back to Kilgoris, and although he sent the fare to the applicant, she refused to release the child. 13.The respondent maintains that he personally takes the child to school and picks him up thereafter. He further states that previous decisions concerning custody of the child, from the age of four years, have consistently been in his favour, including findings and recommendations by: The Children’s Officer, Nyakach; The Children’s Officer, Kilgoris; and The judgment in the present Children’s Case No. E012 of 2025 granted him custody. 14.At this stage, the court is not determining the substantive application for interim custody, but rather the prevailing custodial position pending the inter partes hearing of the application and the appeal. 15.It is not disputed that the child has been residing and schooling under the respondent’s custody. 16.The judgment granting custody to the respondent was delivered on 4th September 2025. The applicant has, however, failed to comply with the said orders by refusing to release the minor KO to the respondent, who currently has lawful custody pursuant to the court order. 17.The appeal was lodged on 28th April 2026, while the present application is dated 4th May 2026. 18.The court has carefully perused the record, the application, the affidavits filed by both parties, and has considered the oral submissions made by counsel and the applicant. 19.The guiding principle in matters concerning children is the best interests of the child as enshrined under article 53(2) of the Constitution and the Children Act, 2022. The child’s views must also be considered pursuant to section 8 of the Children Act. 20.The minors had already expressed their wishes before the trial court. At present, there is no fresh evidence directly from the minors demonstrating any change of circumstances warranting immediate interference with the existing custody orders. 21.The court notes with concern that the minor KO, who ought to be attending school as before school holidays, has been withheld by the applicant contrary to the subsisting custody orders. Such action is not in the child's best interests, particularly regarding the child’s right to education and stability. 22.If the applicant was dissatisfied with the trial court’s decision, the proper course was to pursue the appeal and seek appropriate interim orders from the court, rather than unilaterally retaining the child in violation of the existing court orders. 23.Any new evidence or change of circumstances relevant to custody will be considered upon proper application or during the hearing of the appeal, allowing parties to understand the process for future modifications. 24.Therefore, the court confirms that the existing custody and interim orders, including the child’s return to the respondent, shall remain in force until the hearing and determination of the application, ensuring clarity on the current custodial status. 25.Accordingly, the court makes orders that-i.That the minor KO shall be returned to the respondent through the office of the Children’s Officer, Kilgoris. In default, the OCS Kilgoris Police Station shall assist the Children’s Officer and the respondent in ensuring compliance with these orders.ii.The matter shall be mentioned on 2nd June 2026 for directions.iii.Meanwhile, the respondent shall file and serve a further affidavit within fourteen (14) days from the date hereof. DATED, SIGNED, AND DELIVERED VIA TEAMS AT NAROK THIS 18TH DAY OF MAY, 2026..............................................CHARLES KARIUKIJUDGE