[1999] KEHC 179 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL SUIT 374 OF 1998

J. M. N..................................................... PLAINTIFF

VERSUS

M.N. K..................................................... DEFENDANT

RULING

On the 9th December 1998 J. N. M, whom I shallhereafter refer to as "JOSEPH" moved the court for injunction restraining M. N.K, whom I shall hereafter refer to as "MARGARET"from taking custody of L. N., whom I shall hereafter refer to as "the child"until further orders of the court on the ground that Margaret abandoned the childwhen she was only 10 months and had now secretly taken the child away. The childwas now 5 years old.

I ordered that Joseph should have the custody of the child and that Margaretwas at liberty to move for any necessary orders she deemed fit.

On the 15th December 1998 Margaret applied to have the Orders of 9. 12. 98set aside and that she be given custody of the child.

The parties appeared before me on the 17. 12. 98 and I ordered that the childshould remain with Joseph pending the full hearing of the application to set aside theOrder of 9. 12. 98. The parties were given liberty to file further affidavits.

It is Margaret's case that the child was born on 13. 10. 93 when she wascohabiting with Joseph. That she was under a great deal of harassment, mentaltorture and distress during the cohabitation. That on the night of 31. 8.94 and 1. 9.942 something strange happened to her and she lost her memory and went missing forabout 13 months. That she has been informed by her brother Kiruma andher sister Anne that her disappearance was announced over the radio andpublished in the newspapers. She was eventually located at Nanyuki and taken tohospital in Nairobi. That she never abandoned the child. That when she recoveredshe reported the issue of the child to Nyeri Children Officer. That she went to takeher child when Joseph's wife, came to her place of workand ordered her to collect her child from her house saying that she is not preparedto look after somebody else child.

That she has another child I.L.who was born on 8. 4.95, 8 months after herdisappearance. She was pregnant by the time she disappeared. That she has got herjob back and is working with Nyeri Co-operative Union Saving and Credit Society.She lives at home with her mother and is capable of looking after her children.

One SIMON WAIGWA KIBIRA, an elder, deponed that Joseph and Margaretwere not married and as such under Kikuyu customary law, Margaret was entitled asof right to have the child. His statement was supported by that of E.W. KAMANGU, Margaret's uncle, who deponed that Joseph and Margaretwere not married even under Kikuyu Customary law and as such the child belongs toMargaret.

Margaret's mother and sister also deponed how Margaret went missing andsteps they took to trace her. Mother deponed how she was traced looking frail.Margaret's boss, Branch Manager of Nyeri Farmers Sacco, also deponed how shedisappeared and what sort of employee Margaret was.

Margaret's advocate Mr A.J. Kariuki deponed how he obtained the MedicalReport of Margaret from F.G. Njenga & Nguithi Associates. The Report is preparedby Dr. A.N. Nguithi, Consultant Psychiatrist.

Joseph's case is that in October 1991 he started cohabiting with Margaret.That they were not married. That out of the said cohabitation L.N wasborn on the 13. 10. 93. That on 1. 9.94 and without any apparent reason Margaretdeserted him and abandoned the child who was then 10 months only. The child wasleft in his custody. That he made desperate attempts to trace her but all in vain. Hecaused her disappearance to be aired on the Kenya Broadcasting Corporation on threedifferent dates. He even placed a notice in the Nation of 26. 9.94. On the 12. 10. 95 hemet Margaret at her parents' home after hearing that she had reappeared. She wasunable to give any satisfactory explanation feigning total loss of memory. He carriedout his own investigations and discovered that she had been cohabiting with oneJ. KARIUKI at Likii and had a child out of the said relationship. That the childis now 5 years and has remained in the exclusive custody of the Plaintiff until 2. 12. 98when Margaret abducted the child from his home.

J. N. N, the wife of Joseph, deponed that it was not true thatshe went to Margaret's place of work and ordered her to take the child. She deniedsubjecting the infant to any harassment. She went on to depone that she is ready,able and willing to discharge her duties, responsibilities and obligations towards thechild and that the relationship between her and the child is that of mother and child.

When Joseph applied to this court on the 9. 12. 98 seeking to have custody ofthe child as Margaret had abducted her, this court granted him the Order and he tookover the custody of the child. I also ordered that Margaret was at liberty to move thecourt for any orders she wished. She accordingly applied to set aside the Ordergranting Joseph custody of the child.

The matter came up before me on the 16. 12. 98 and I ordered the matter stoodover to the 17. 12. 98 and ordered that the step mother and the child should attend in Chambers. I remained in Chambers with my clerk and the child after sending all thepeople concerned out of my chambers.

I found the child healthy and she talked freely. She said that J. N washer mother while Margaret was her aunt. She confirmed that neither Jane nor Josephever beat her. She had a positive attitude. I ordered that she remains in custody ofJoseph pending the hearing of the application by Margaret.

The matter in dispute is as between Joseph and Margaret who should havecustody of the child L.N?

At the outset I must make it clear that having talked to the child in the absenceof other people, she is happy in her present position. I gathered from her that she hasnever been mistreated by her father or her "mother".

I also talked to her about her "aunt", Margaret and she told me that for the timeshe was with her "aunt", her "aunt" treated her nicely and was kind to her. Joseph, inhis affidavit, did not throw any aspersions at Margaret as a mother. There was noallegation that for the 10 months she lived with the child, she was a bad mother.

On the evidence before me I hold that both Joseph and Margaret are suitableparents to look after the child. The circumstances have since intervened in thatJoseph is married to Jane. Nobody would blame him for doing so. He could not waitfor Margaret forever.

I now turn to consider the behaviour of Margaret. It is her case that she doesnot remember what happened to her. She lost her memory and did not know whereshe was.

The Consultant Psychiatrist after examining her concluded that:

"In my opinion, the history and clinical findings that Margaret presented withare suggestive of a diagnosis of a Dissociative Fugue. This is a condition inwhich a person may suddenly leave home and live in a new place while having amnesia of their former life, for weeks or months. This type of condition isusually a symptom of severe depression or it may be precipitated by anextremely stressful environment, such as a difficult marriage".

The doctor's evaluation was incomplete because she did not have theopportunity to interview the people Margaret was living with prior to herdisappearance and after her disappearance. One thing is however clear, that despitewhat we non medical people might think, Margaret's behaviour can be explained inmedical terms.

Margaret had a job prior to her disappearance and if she wanted to leaveJoseph, she could have done so and continued with her job. Her behaviour wasunusual but the doctor has satisfactorily explained the position. I hold that Margaretdid not leave the child on her accord. She was sick.

The next issue for consideration is what action did she take about the childfrom October 1995 till December 1998 when she abducted the child? The doctorstates in her Report that:

"She was hospitalized at Avenue Hospital for observation from 18th to 25th October 1995. No abnormal behaviour was noted and her memory continued to improve". It is clear that her memory was on the mend and was improving as time wentby resulting in her abducting the child. In the end she realised that she had a child togo to the extend of abducting her. I hold that her sickness should not be held against her. I was referred to Section 17 of the Guardianship of Infants Act, Cap 144 whichprovides as follows:

"17. Where in any proceeding before any court the custody or upbringing ofan infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof is in question, the court, indeciding that question shall regard the welfare of the infant as the first andparamount consideration, and shall not take into consideration whether from anyother point of view the claim of the father, or any right at common law possessedby the father, in respect of such custody, up-bringing, administration orapplication is superior to that of the mother, or the claim of the mother issuperior to that of the father".L.N is a girl aged 5 years and it is settled law that in cases involving very young female children custody will always be given to the mother unless there are exceptional circumstances - JOYCE MUTHONI GITHUNGURI -VS- STANLEY MUNGA GITHUNGURI. [1982-88] 1KAR9. Having held that both Joseph and Margaret are suitable parents, when it comes to custody the balance tilts in Margaret's favour. L is a very young female child.

Both Joseph and Margaret are Kikuyus and it has not been challenged that under Kikuyu customary law Margaret is entitled to the custody of the child.Section 3(2) of the Judicature Act, Cap 8 states as follows:"The High Court, the Court of Appeal and all subordinate courts shall beguided by African customary law in civil cases in which one or more of theparties is subject to it or affected by it, so far as it is applicable and is notrepugnant to justice and morality or inconsistent with any written law, and shalldecide all such cases according to substantial justice without undue regard totechnicalities of procedure and without undue delay".L is used to stay with her father but with time she will adjust. It is in her interest to know her mother now than discovering the truth some years later. It is consoling that Joseph has a wife and a child with his wife.

I therefore set aside my order of 9. 12. 98 and grant M. N.K custody of the child L.N. Each party shall bear its own costs.

Delivered this 19th day of March 1999.

J.V.O JUMA JUDGE