https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8163

FOC v ES & 3 others (Civil Appeal E099 of 2023) [2026] KEHC 8163 (KLR) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 8163 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E099 of 2023 S Mbungi, J June 10, 2026 Between FOC Appellant and ES 1st Respondent GM 2nd Respondent RS 3rd Respondent GS 4th Respondent Judgment 1.This appeal arises from the judgment of Hon. G. Ollimo (SRM) delivered on 8th June 2023 in Butere Children’s Case No. EXXX of 2022 concerning the custody, care and maintenance of K.E. (Minor). 2.The Appellant, who was the Plaintiff before the trial court and biological father of the minor, instituted proceedings seeking custody orders and unrestricted access to the child following the separation between himself and the 1st Respondent, who is the biological mother of the minor. 3.Upon hearing the parties and their witnesses, the learned trial magistrate rendered judgment granting actual custody, care and control of the minor to the 1st Respondent, joint legal custody to both parents, visitation rights to the Appellant during school holidays, and apportioned parental responsibilities between the parties. 4.Dissatisfied with the judgment, the Appellant filed the present appeal raising several grounds principally challenging the award of actual custody to the mother and the findings of the trial court regarding the best interests of the child. 5.As a first appellate court, this Court is obligated to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in the case of Selle v Associated Motor Boat Co. Ltd where the Court held that a first appellate court must re-evaluate the evidence and make its own findings while giving due allowance to the fact that the trial court had the advantage of seeing and hearing witnesses. 6.Article 53(2) of the Constitution of Kenya provides that:“The best interests of the child are of paramount importance in every matter concerning the child.” 7.Similarly, Section 8 of the Children Act, 2022 reiterates the constitutional principle that in all actions concerning children, the best interests of the child shall be the primary consideration. 8.The Court is therefore required to determine the appeal through the lens of the best interests principle and not the competing interests of the parents. Issues For Determination 9.Having considered the Memorandum of Appeal, the Record of Appeal and the submissions by the parties, the following issues arise for determination:a.Whether the learned trial magistrate erred in awarding actual custody of the minor to the 1st Respondent.b.Whether the trial court failed to consider the evidence on record.c.Whether the trial court properly applied the principle of the best interests of the child.d.Whether there exists any basis for interfering with the discretion exercised by the trial court. Analysis And Determination a. Whether the learned trial magistrate erred in awarding actual custody to the 1st Respondent 10.The Appellant argues that the 1st Respondent unlawfully left the matrimonial home with the child and that such conduct disentitled her from being granted custody. 11.The Court has carefully examined the record. The minor was born on 31st October 2021 and was therefore approximately one and a half years old at the time of judgment. 12.The law relating to custody of children of tender years is settled. In J.O. v S.A.O. the Court of Appeal held that custody of children of tender years should ordinarily be granted to the mother unless exceptional circumstances are demonstrated. 13.Similarly, in KMM v JIL the Court emphasized that children of tender years are generally best placed in the custody of their mothers unless evidence is presented showing that the mother is unsuitable. 14.The record does not reveal any evidence demonstrating that the 1st Respondent was incapable of caring for the child or that she posed any danger to the minor. 15.The Appellant’s principal complaint is that the child was removed from the matrimonial home without his consent. While such conduct may have contributed to the breakdown of the parties’ relationship, custody disputes are not determined on the basis of fault between parents but on the welfare of the child. In custody matters, the Court is not called upon to punish one parent or reward the other. The overriding consideration remains the welfare of the child. 16.The Court therefore finds no error in the learned magistrate’s decision to place actual custody of a child of tender years with the biological mother. b. Whether the trial court failed to consider the evidence on record 18.The Appellant contends that the learned magistrate disregarded the testimony of his witnesses and relied on unsubstantiated allegations by the Respondents.A review of the judgment shows that the learned magistrate summarized the evidence of all witnesses before arriving at her conclusions. 19.The fact that a court does not adopt a party’s evidence does not necessarily mean that such evidence was ignored. 20.The Appellant’s witnesses mainly testified regarding the relationship between the parties and their observations concerning the circumstances under which the 1st Respondent left the matrimonial home. 21.However, the central question before the trial court was not who was responsible for the marital disagreement but what arrangement best served the interests of the minor.The learned magistrate considered the circumstances of both parents and noted that the child was already residing with the mother. 22.The Court finds no basis for concluding that the learned magistrate failed to consider the evidence placed before her. c. Whether the trial court properly applied the best interests principle 25.The Appellant argues that he possesses superior financial means, stable employment and better capacity to provide for the child.It is not disputed that the Appellant is a trained teacher with a regular source of income. 26.However, financial superiority alone is not the determining factor in custody disputes. 27.In JKN v HWN the Court observed that the best interests principle encompasses emotional, psychological, social and developmental needs of a child and not merely economic considerations.The trial court granted joint legal custody to both parents thereby recognizing the equal parental responsibility imposed by Article 53(1)(e) of the Constitution. 28.The trial court further directed the Appellant to provide school fees and medical cover while granting him access rights. 29.These orders ensured that both parents remained actively involved in the life of the child. 30.This Court is satisfied that the learned magistrate properly directed herself to the welfare and best interests of the minor. d. Whether there is basis to interfere with the discretion of the trial court 33.An appellate court will only interfere where it is shown that the trial court misdirected itself in law, considered irrelevant factors, failed to consider relevant factors or arrived at a plainly wrong conclusion. 34.In Mbogo v Shah it was held that an appellate court should not interfere with the exercise of discretion unless satisfied that the judge misdirected himself or arrived at a decision that is clearly wrong. 35.The Appellant has not demonstrated any misdirection on the part of the learned magistrate. 36.The trial court considered the age of the child, the circumstances of the parties, the parental responsibilities of each parent and ultimately fashioned orders aimed at safeguarding the child’s welfare. Although the Appellant may disagree with those findings, disagreement alone is not sufficient ground for appellate interference. 37.This Court is therefore unable to find any legal or factual basis warranting interference with the judgment of the subordinate court. 40.Having independently re-evaluated the evidence and applicable law, this Court finds that the learned trial magistrate properly appreciated the facts and correctly applied the law relating to custody of children of tender years. 41.The orders granting actual custody to the mother, joint legal custody to both parents and visitation rights to the Appellant were consistent with the constitutional principle that the best interests of the child are paramount. 42.The Appellant has failed to demonstrate any error of law or fact warranting interference by this Court. 43.Consequently, the appeal lacks merit and is hereby dismissed. 44.The judgment and orders of the Senior Resident Magistrate in Butere Children’s Case No. EXXX of 2022 delivered on 8th June 2023 are hereby upheld. 45.Given the nature of the dispute involving parents of a minor child, each party shall bear their own costs of the appeal. 46.Right Of Appeal 30 days. 47.File closed. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaAppellant present.Respondent absent.