[2020] KEHC 1331 (KLR)
The court found that the appellant was in contempt of the court order dated 31/7/2019, which granted sole custody of the child to the respondent. Although the appellant communicated with the respondent about the child's whereabouts and was misled by the Children’s Officer to retain custody, he failed to seek a...
Source-derived case information.
- Citation
- [2020] KEHC 1331 (KLR)
- Parties
- Appellant: JA; Respondent: AA
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Contempt of Court
- Outcome
- Appellant found in contempt but discharged with a warning.
- Legal Topics
- Child Custody, Contempt of Court, Variation of Custody Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JA
Appellant
AA
Respondent
Procedural Posture
Civil Appeal / Ruling on Contempt of Court
Legal Issues
- 1 Whether the appellant was in contempt of the court order dated 31/7/2019 granting sole custody of the child to the respondent.
- 2 Whether the appellant's actions were justified by the involvement of the Children’s Officer and the child's need for care and protection.
Ratio Decidendi
The court found that the appellant was in contempt of the court order dated 31/7/2019, which granted sole custody of the child to the respondent. Although the appellant communicated with the respondent about the child's whereabouts and was misled by the Children’s Officer to retain custody, he failed to seek a formal variation of the custody order through the court as required by law. The court emphasized that obedience to court orders is mandatory, and any change in circumstances must be addressed by applying to the court for variation. However, given the mitigating circumstances, including the involvement of the Children’s Officer and the appellant's communication with the respondent,...
Court Disposition
Appellant found in contempt but discharged with a warning.
Orders
- The appellant is discharged with a warning not to disregard court orders in future.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CIVIL APPEAL NO. 36 OF 2019
JA………………………………………….…........APPELLANT
VERSUS
AA.........................................................................RESPONDENT
RULING ON CONTEMPT OF COURT
1. I have considered the mitigating affidavit by the Appellant in the contempt matter before the court and the Response by Mr. Qeu counsel for the Respondent.
2. It is clear on record that on 31/7/2019 the trial court granted sole custody of F.O a child, to the Respondent and if the Appellant was approached by the child on account of need of care and protection, he should have sought advice from his legal counsel which from the appearance of these proceedings, he did not. Instead, he went to the Children’s Officer who, instead of applying to court under Section 120 of the Children’s Act for variation of Orders of 31/7/2019 on account that the child was in need of care and protection, the Children’s officer allowed the appellant to have full custody of the child F.O.
3. That notwithstanding, I note that from annexture JA4, the Appellant did communicate to the Respondent on 20/10/2020 that he was with the child, and therefore it is not true to say that he abducted the child and or that the whereabouts of the child were unknown. There is also evidence of the appellant and the child doing shopping together meaning the child was in custody of the appellant albeit contrary to the orders of the trial court.
4. Having said all that I find that the appellant was in contempt of court orders of 31/7/2019 on custody of the child F.O. However, he was misled by the Children’s officer to keep custody of the child instead of seeking for orders on a child who was in need of care and protection.
5. I therefore proceed to discharge the appellant with a warning not to disregard court orders in future.
6. Orders accordingly.
Dated, signed and delivered at Siaya this 25th Day of November 2020
R.E. ABURULI
JUDGE