https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6042

GG v CMM (Civil Appeal E029 of 2023) [2026] KEHC 6042 (KLR) (Family) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 6042 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E029 of 2023 HK Chemitei, J May 7, 2026 Between GG Appellant and CMM Respondent Ruling 1.This judgment relates to the revised amended memorandum of appeal amended on 19th April, 2023 filed by the Appellant, GG; based on the grounds that:1.That the learned Magistrate erred in law and fact by awarding the Respondent sole custody care and control of the minor without any compelling reasons or evidence.2.That the learned Magistrate erred in law and fact by awarding the Respondent sole custody care and control of the minor without considering all the requisite principles to be applied by the Court in making a custody order.3.That the learned Magistrate erred in law and fact by awarding the Respondent sole custody, care and control of the minor contrary to the best interest’s principle as espoused in the Constitution, the Children Act and other international instruments in which Kenya is party to.4.That the learned Magistrate erred in law and fact by denying the Appellant custody, care and control of the minor and imposing a superior claim of custody of the minor, CMG on the Respondent in spite of the law providing for equal right of custody for both the mother and father.4A.That the learned Magistrate erred in law and fact by awarding the Respondent sole custody care and control of the minor without considering the ascertainable wishes of the child taking into account the child’s evolving capacity.5.That the learned Magistrate erred in law and in fact by denying the Appellant custody, care and control of the minor without any compelling reasons, evidence or challenge on his suitability t having custody of the minor.5A.That the learned Magistrate erred in law and fact by failing to adhere to the doctrine of stare decisis particularly by failing to adhere to the principle in a binding authority on parental responsibility falling on both parents and no parent having superior right or claim against the other in the exercise of parental responsibility, [SAK V ZDNP (2019) eKLR].6.That the learned Magistrate erred in law and fact by ordering that the Appellant solely provides school fees and related expenses at the current school in UK without conducting a proper inquiry and assessment into the income levels of both parents and their respective financial responsibilities.7.That the learned Magistrate erred in law and fact by ordering that the Appellant solely provides school fees and related expenses at the current school in UK contrary to the constitution which provides for equal responsibility of the mother and father to provide for the child.7A.That the learned Magistrate erred in law and fact by ordering that the Appellant solely provides school fees and related expenses of the minor without having regard to the fact that the Appellant is solely maintaining other children who are attending high school and college respectively and is meeting the costs for their education as well as other needs.7B.That the learned Magistrate misdirected himself by ordering that the Appellant provides school fees and related expenses without properly examining the school situation of the minor. CMG especially the fact that he is studying at a public school in the UK where no school fees are paid.8.That the learned Magistrate erred in law and fact by ordering that the Appellant provides food and utilities assessed at Kshs. 85,000/= per month in spite of concluding that both parents were of modest means and are able to provide for the child within their means.9.That the Learned Magistrate erred in law and fact by ordering the Appellant provides food and utilities assessed at Kshs. 85,000/= per month without considering the affidavit of means and other crucial circumstances of the case such as the testimony of the Appellant’s accountant.9B.That the learned Magistrate erred in law and fact by denying the Appellant custody care and control of the minor and making unfair orders against the Appellant without considering the unchallenged evidence by the numerous Appellant’s witnesses. To wit the expert testimony adduced by the Appellant’s accountant, the minor’s siblings and by Professor Peter Theuri.10.That the learned Magistrate erred in law and fact by rejecting to order for repatriation of the minor in spite of being vested with the authority and jurisdiction to do so.11.That the learned Magistrate erred in law and fact by rejecting to order for repatriation of the minor contrary to the best interests principle.12.That the learned Magistrate erred in law and fact by rejecting to order for repatriation of the minor which has an effect of denying the Appellant access to the minor contrary to the order of the court.13.That the learned Magistrate erred in law and fact by rejecting to order for repatriation of the minor thereby denying the minor right to live with, to be cared for and to be guided by the Appellant father.14.That the learned Magistrate erred in law and fact by rejecting to order for repatriation of the minor which has an effect of denying the Appellant access to the minor contrary to the order of the court. 2.The Appellant prays for orders that:A.The ruling and order of the Case No. E1288 of 2022 (Hon. R. O. Mbogo SRM) delivered on 3rd March, 2023 be and is hereby set aside in its entirety.B.The present appeal be and is hereby allowed in the following terms:i.The court makes an order for joint custody of the minor, CMG.ii.The Appellant be allowed unfettered access of the minor, CMG.iii.An order that the Appellant bears all costs including school fees for the two other children of the Appellant and the Respondent bears the costs including school fees of the minor, CMG.iv.The Respondent to produce evidence of her monthly income and salary for effective and efficient determination of maintenance orders.v.The court makes an order for repatriation of the minor, back to the country to be reunited with the Appellant and the minor child’s siblings.vi.An order be issued restraining the Respondent from making any important decision or taking any important steps in the minor’s life including travel, education, schooling and major medical treatment without consultation and permission from the Appellant.C.The court grants any further orders in the interest of justice. 3.The Appellant has filed written submissions dated 20th November, 2025. The submissions set out the factual background of the dispute, indicating that the parties are the biological parents of the minor born in 2012, and that prior to July 2022 the child resided in Kenya under the joint care of both parents. 4.The Appellant states that the Respondent travelled to the United Kingdom with the child for a temporary holiday but subsequently declined to return the child to Kenya after the expiry of the visa period. It is asserted that the relocation was unilateral, undertaken without the Appellant’s consent and resulted in the Appellant being denied meaningful access and participation in the child’s upbringing. The Appellant further claims that the Respondent has concealed her actual residence and schooling arrangements in the UK and has frustrated communication between father and child. 5.The Appellant argues that the trial court failed to consider relevant evidence demonstrating his active role in the child’s life and his continued financial obligations towards other children and dependants. He emphasizes that the child previously enjoyed close interaction with paternal siblings and extended family in Kenya and that relocation to the UK disrupted these familial and emotional ties. 6.Reliance is placed on constitutional provisions, the Children Act 2022, international instruments such as the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, as well as judicial precedents affirming that both parents possess equal parental responsibility and that no parent enjoys superior custodial rights over the other. 7.The submissions particularly criticize the trial court’s apparent reliance on the tender years’ doctrine, contending that such an approach undermines the constitutional equality of parents and improperly favours mothers in custody disputes. 8.Further, the Appellant submits that the trial court erred by ordering him to solely cater for maintenance and educational expenses without conducting a proper inquiry into the respective financial capacities of both parties. He contends that the Respondent is educated, employable and possessed of income-generating assets, yet deliberately chose unemployment while shifting the financial burden entirely onto him. 9.The submissions also challenge the factual basis of the maintenance award, arguing that the child attends a public school in the UK where tuition is allegedly not payable and that the monthly maintenance figure of Kshs. 85,000/= was unsupported by evidence. The Appellant therefore urges the Court to set aside the impugned orders, grant joint custody, order the child’s repatriation to Kenya and redistribute parental responsibilities in accordance with constitutional and statutory principles of equality and the best interests of the child. 10.The Respondent has filed written submissions dated 17th September, 2025. She opposes the appeal and urges this court to uphold the ruling of the Children’s Court delivered on 3rd March, 2023 in Nairobi Children’s Case No. E1288 of 2022. 11.She maintains that the trial court properly exercised its discretion after hearing and cross-examining both parties and considering the welfare and best interests of the minor. The Respondent states that she had instituted the children’s case seeking maintenance for the child and that, after hearing the parties, the trial court ordered the Appellant to pay monthly maintenance of Kshs. 85,000/= together with school fees and related expenses. 12.The Respondent recounts that she travelled to the United Kingdom with the child in July 2022 with the Appellant’s knowledge and consent, initially for a temporary visit. She contends that while in the UK she and the child were subjected to threats, emotional abuse and harassment from the Appellant, prompting her to seek legal advice and eventually remain in the UK for safety and stability. 13.She further states that both she and the child obtained lawful immigration status and that allegations that they are illegally resident in the UK are unfounded. According to her, the child was enrolled in school, has adapted well to life in the UK, is excelling academically, maintains communication with relatives and friends and enjoys a stable environment under her care. 14.The Respondent submits that the Appellant has failed in his parental obligations by neglecting to consistently provide maintenance despite court orders and despite being a person of substantial means. She avers that the Appellant accumulated maintenance arrears and only partially met his obligations after enforcement efforts were initiated. 15.It is further argued that the Appellant has focused more on litigation than on the welfare of the child and has attempted to evade responsibility by questioning the Respondent’s financial capacity while disregarding his own legal duty to support the child. The Respondent emphasizes that parental responsibility is shared but should be apportioned according to the financial means and circumstances of each parent and she argues that the trial court properly evaluated the parties’ respective incomes, obligations and needs of the child before making the maintenance order. 16.In addressing custody and access, the Respondent maintains that the Appellant has not been denied access to the child and that communication between father and child has continued through telephone calls and other electronic means. 17.She contends that the Appellant’s conduct, including alleged threats and emotional abuse, demonstrates that he is unsuitable for custody. 18.The Respondent further submits that the appeal is largely an attempt to revisit factual findings already made by the trial court and that the appellate court should not interfere with those findings unless they are plainly erroneous. 19.Relying on constitutional provisions, the Children Act and judicial precedents, the Respondent argues that the impugned orders were guided by the paramount consideration of the child’s welfare and best interests. 20.She therefore prays that the appeal be dismissed with costs and that the existing maintenance and custody arrangements remain in force. Background 21.The genesis of this appeal is the Ruling in Nairobi Children’s Case No. E1228 of 2022: CMM Versus GG, delivered by Hon. R. O. Mbogo, Senior Resident Magistrate (Mr.) on 3rd March, 2023 and Order issued Hon. R. O. Mbogo, Senior Resident Magistrate (Mr.). 22.In the ruling, the court considered the parties’ competing claims relating to custody, maintenance and welfare of the minor child, CMG. It was noted that the dispute arose after the Respondent relocated to the United Kingdom with the child, while the Appellant sought custody, repatriation of the minor and regulation of parental responsibility. Upon evaluating the material placed before it, the court determined that the child’s welfare and best interests remained the paramount consideration. 23.The court proceeded to issue interim custodial and maintenance orders. It granted the Plaintiff/Respondent actual custody, care and control of the minor, while the Defendant/Appellant was accorded access rights as previously consented between the parties. The court further directed that the Plaintiff would continue providing day-to-day care, shelter, clothing and supervision of the child. 24.On financial responsibility, the court ordered the Defendant/Appellant to provide for the child’s educational needs by paying school fees and all related expenses at the minor’s current school in the United Kingdom. 25.In addition, the court directed the Appellant to pay Kshs. 85,000/= per month towards food and utilities for the minor, the payments to commence on 5th April, 2023 and thereafter be remitted monthly. The court also directed that the child should continue utilizing the NHS medical cover issued to him. 26.The court granted liberty to either party to apply for further directions or variation of the orders where necessary and directed that each party would bear their own costs. It further ordered that the main suit be fixed for hearing within six months, failing which the interim orders would lapse automatically. Analysis and Determination 27.I have carefully considered the memorandum of appeal and the rival submissions thereto and shall address them as follows: 28.The appeal challenges interlocutory orders issued by the Children’s Court concerning custody, maintenance and the relocation of the minor child, CMG, to the United Kingdom. The Appellant principally faults the learned Magistrate for granting the Respondent actual custody and care of the minor, declining to order repatriation of the child to Kenya and directing the Appellant to solely shoulder school fees, educational expenses and monthly maintenance of Kshs. 85,000/=. 29.The Appellant argues that the trial court failed to properly consider the constitutional principle of equal parental responsibility, the evidence regarding the Respondent’s earning capacity and the effect of the relocation on his access to the child. 30.Conversely, the Respondent maintains that the impugned orders were properly grounded on the best interests of the child, which remains the paramount consideration under Article 53(2) of the Constitution and Section 8 of the Children Act, 2022. 31.This being a first appeal, the court is enjoined to re-evaluate and re-analyze the entire evidence on record and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 32.The guiding principles are well settled, including the duty to subject the impugned decision to fresh scrutiny and determine whether the trial court misdirected itself in law or fact as was established in Mursal & Another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) where the court stated as follows: “First appellate court is mandated to re – evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.” 33.The record demonstrates that the trial court was confronted with a highly contested dispute involving allegations of emotional abuse, parental alienation, concealment of the child’s whereabouts and competing claims regarding the welfare of the child. Importantly, the orders appealed from were interim in nature and intended to preserve the child’s welfare pending the hearing of the substantive suit. In children matters, courts are not guided by the competing rights of parents but by the singular principle of the best interests of the child. 34.In NKG v SGB [2024] KEHC 5658 (KLR) the court pronounced itself as follows: “… 22. Since the two issues are intertwined, I will deal with them together. I must be guided at all times by the mantra that the best interest of a child principle is paramount when dealing with children matters. 23.Article 53 (2) of the Constitution provides: “A child’s best interests are of paramount importance in every matter concerning the child.” 24. Section 8(1) of the Children’s Act 2022 provides; a. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies — a. the best interests of the child shall be the primary consideration; b. the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 25. The First Schedule of the Children’s Act 2022 lists down the considerations to be taken into account when ascertaining what is in the best interest of a child: - 1. The age, maturity, stage of development, gender, background and any other relevant characteristic of the child. 2. Distinct special needs (if any) arising from chronic ailment or disability. 3. The relationship of the child with the child's parent(s) and/or guardian(s) and any other persons who may significantly affect the child's welfare. 4. The preference of the child, if old enough to express a meaningful preference. 5. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity. 6. The stability of any proposed living arrangements for the child; 7. The motivation of the parties involved and their capacities to give the child love, affection and guidance. 8. The child's adjustment to the child's present home, school and community. 9. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access. 10. The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care. 11. Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent's/guardian’s willingness to use those methods. 12. The effect on the child if one parent/guardian has sole authority over the child's upbringing. 13. The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child. 14. The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child. 15. Where the child is under one year of age, whether the child is being breast-fed. 16. The existence of a parent's or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act. 17. Where there is a person residing with a parent or guardian, whether that person - a. been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code, or any other legislation. b. has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony. 18. Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child…” 35.In Jackson v. Jackson 2002 (2) SA (SCA) the Supreme Court in South Africa stated that, “… the interests of the children are the first and paramount consideration and a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bonafide and reasonable…” Scott JA further noted that, “… even if access by the non – custodial parent would be materially affected, it would not be in the best interest of the children that the custodian parent be prevented from emigrating on the basis of a decision reasonably and genuinely taken (although the courts now take a more neutral approach…” 36.The court must consider continuity, stability, emotional welfare, educational adjustment and the child’s present living environment. The evidence on record indicates that by the time of the ruling, the minor had already settled in school in the United Kingdom, obtained NHS medical coverage and established a degree of social and educational stability there. The trial court therefore cannot be faulted for declining to abruptly uproot the child at an interlocutory stage without the benefit of a full hearing and comprehensive welfare inquiry. 37.On custody and parental responsibility, however, the learned Magistrate’s formulation of the orders requires clarification. While actual custody, care and control were granted to the Respondent, the law does not recognize one parent as having superior parental rights over the other unless compelling circumstances such as neglect, abuse or demonstrated incapacity. 38.Both parents retain equal legal custody and parental responsibility under Article 53(1)(e) of the Constitution and Sections 23 and 24 of the Children Act. 39.The record does not disclose any definitive finding that the Appellant was unfit to exercise parental responsibility or to participate in major decisions affecting the child. Consequently, although the Respondent was properly granted actual custody on an interim basis due to the prevailing circumstances and the child’s residence abroad, the Appellant remained entitled to meaningful access, information regarding the child’s welfare and participation in major educational, travel and medical decisions. 40.To that extent, I find that the appeal partially succeeds in affirming the principle of shared parental responsibility and structured access. 41.With regard to maintenance, the trial court correctly appreciated that both parents bear responsibility to support the child according to their respective means. Nevertheless, the order directing the Appellant to solely provide school fees and all educational expenses without a comprehensive inquiry into the Respondent’s income and financial contribution was not fully supported by the material then on record. Equally, the evidence presented suggested that the child attended a public school in the United Kingdom where tuition fees were either minimal or non-existent, though ancillary educational expenses remained payable. 42.In the circumstances, I find that the maintenance orders required proportionality and periodic review rather than exclusive allocation to one parent. Accordingly, while the Appellant remains obligated to contribute towards the child’s maintenance given his demonstrated financial capacity, the Respondent must equally contribute within her means. 43.Consequently, the order for payment of Kshs. 85,000/= is hereby set aside. This of course does not stop the Respondent or either of them from making some necessary application at the opportune time if necessary. 44.I must also add that it is discomforting to also note that the Respondent still continues to seek the above compliance yet from the oral evidence on record during cross examination it was apparent that the Appellant was not in touch with the minor and she continued to erect several roadblocks to ensure that the Appellant does not reach the minor. 45.Of most disheartening was an admission that she listened into the minor’s conversation with the father. I think to be fair this was completely unnecessary. The Appellant remains a father of the minor regardless of the parents’ disagreement. 46.Both parents must not at any one moment demonstrate their differences in full glare of the minor or in any way influence one parent against the other. 47.She cannot therefore ask for financial support while she prevents the minor or the Appellant from reaching each other albeit by way of current technology. It is not even lost that the Appellant purchased a phone and sent it to the minor in an attempt to reach him. 48.In sum total, any demand by the Respondent whether in this court or the trial court, must be met with an exercise of goodwill and good faith. 49.The prayer, on the other hand, for immediate repatriation of the minor is declined, as such an order would be premature and potentially disruptive to the child’s stability and shall await the outcome of the main suit 50.In light of the foregoing, the trials court’s ruling is set aside and the appeal succeeds as hereunder:(a)The order for a monthly maintenance of Kshs 85,000 is hereby set aside.(b)Both the Appellant and the Respondent shall have a joint legal custody and unimpeded access to the minor.(c)The suit at the trial court be set down for hearing forthwith.(d)Costs in the cause. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 7TH DAY OF MAY 2026.H K CHEMITEIJUDGE