https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12849

EAO v CEOO (Civil Appeal E017 of 2025) [2026] KEHC 12849 (KLR) (14 August 2026) (Ruling) Neutral citation: [2026] KEHC 12849 (KLR) Republic of Kenya In the High Court at Kilgoris Civil Appeal E017 of 2025 CM Kariuki, J August 14, 2026 Between EAO Appellant and CEOO Respondent (Being an appeal from the Judgment of Hon. W. C. Waswa, Senior Resident Magistrate, delivered on 4th September 2025 in Kilgoris Senior Principal Magistrate’s Court Children Case No. E012 of 2025) Ruling 1.Before this Court is the Appellant/Applicant’s application dated 4th May 2026 concerning the interim care and custody of S.K. (hereinafter “the child”), a minor aged approximately ten years, pending the hearing and determination of the appeal. 2.The Applicant seeks, in substance, an order that the child be placed in her custody during the pendency of the appeal. Upon the application being presented, the Court issued interim orders preserving the prevailing status quo pending inter partes consideration of the application. 3.The parties subsequently appeared before the Court and made oral submissions regarding the interim arrangements that ought to prevail pending the hearing and determination of the appeal. The Parties’ Respective Positions 4.The Applicant relied on her application and supporting affidavit sworn on 4th May 2026. She submitted that the child should be put in her custody while the appeal is pending. She contended that, although the Respondent is the child’s father, the child had substantially been left under the care of the paternal grandmother, who had allegedly failed to provide adequate care. 5.The Applicant further stated that the child was unwilling to return to the Respondent. She nevertheless acknowledged the importance of the child’s continued education and submitted that the child ought to attend school in Kilgoris. 6.The Respondent opposed the application through a replying affidavit sworn on 8th May 2026. Through learned counsel, Mr Odeyi, he submitted that the child had been residing with him pursuant to the judgment of the subordinate court and that the Applicant had failed to release the child despite having been facilitated with transport expenses. 7.The Respondent expressed concern that the child’s education was being disrupted, schools having reopened. He urged the Court to preserve the existing custody arrangement and direct that the child immediately resume school pending the hearing of both the application and the substantive appeal. Interview With The Child 8.Considering the nature of the dispute, the Court interviewed the child in camera in the presence of Defina Orondo. The interview was conducted in a child-sensitive manner and without subjecting the child to the adversarial contest between his parents. 9.The child informed the Court that he had been residing with the Respondent together with his elder sister, who is presently pursuing a nursing course in Nyandarua. He further stated that the Respondent had been providing for his needs. 10.The Court has taken the child’s views into account, having due regard to his age and level of maturity. Those views are relevant but are not, by themselves, determinative of the dispute. The ultimate consideration remains the child’s best interests. Issue For Determination 11.At this interlocutory stage, the principal issue is whether the Court should alter the existing custody arrangement pending the hearing and determination of the appeal. Analysis And Determination 12.Article 53(2) of the Constitution provides that:“A child’s best interests are of paramount importance in every matter concerning the child.” 13.This principle is reinforced by section 8 of the Children Act, 2022, which requires every court, administrative institution and person exercising authority in a matter concerning a child to treat the child’s best interests as the primary consideration. The governing provisions are available in the [Children Act, 2022] 14.In determining the child’s best interests, the Court must consider, among other factors, the child’s physical and emotional security, educational welfare, stability, continuity of care, relationship with each parent, and the likely effect of any abrupt change in the child’s living arrangements. 15.The application before the Court is interlocutory. The substantive appeal challenges the trial court's judgment regarding the child’s custody and welfare. It would therefore be inappropriate, at this stage and without considering the entire record of appeal, to make findings that would effectively determine the appeal in advance. 16.The Court is equally mindful that custody proceedings are not contests in which one parent triumphs over the other. Parental rights and claims remain subordinate to the welfare and best interests of the child. 17.The material presently before the Court does not disclose an immediate or substantial danger to the child that would justify abruptly altering the existing arrangement before the appeal is heard. The allegations concerning inadequate care by the paternal grandmother are disputed and cannot conclusively be determined based on the interlocutory material presently before the Court. 18.Stability and continuity are particularly important to a child of tender age. Frequent or abrupt movement between the parents may cause anxiety, interfere with schooling and expose the child to the parties’ conflict. The Court must therefore avoid orders likely to cause unnecessary disruption. 19.The child’s education is also an immediate and pressing consideration. Article 53(1)(b) of the Constitution guarantees every child the right to free and compulsory basic education. Neither parent may retain the child or otherwise act in a manner that interferes with his regular school attendance. 20.Having considered the application, the affidavits, the parties’ submissions, the child’s views and the constitutional imperative that the child’s best interests remain paramount, the Court finds that the prevailing arrangement should not be disturbed pending the expeditious determination of the appeal. 21.This finding is strictly interim. Nothing stated in this ruling shall be construed as a final determination of the parties’ respective claims to custody or of any ground raised in the appeal. Disposition 22.Accordingly, the Court makes the following orders:a.The status quo regarding the care and custody of the child, S.K., shall be maintained pending the hearing and determination of the appeal. The child shall therefore remain in the Respondent’s care.b.The Respondent shall ensure that the child is enrolled in and regularly attends school without interruption.c.The Respondent shall provide for the child’s educational, medical, nutritional and general welfare needs during the pendency of the appeal.d.The Applicant shall have reasonable access to the child at mutually agreed times, including reasonable telephone or electronic communication, provided that such access does not interfere with the child’s schooling and welfare.e.Neither party shall remove the child from the jurisdiction of this Court or change his school or ordinary place of residence without the written consent of the other parent or prior leave of the Court.f.Both parties shall refrain from discussing the merits of the dispute with the child, coaching or influencing him, denigrating the other parent in his presence, or otherwise involving him in their disagreement.g.The parties shall cooperate in facilitating the child’s continued relationship with both parents and shall not obstruct the access ordered by the Court.h.The appeal shall be prosecuted on a priority basis, considering that it concerns the welfare of a child.i.Costs of the application shall abide by the outcome of the appeal. 23.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT NAROK THIS 14TH DAY OF AUGUST 2026.................................................CHARLES M. KARIUKIJUDGE