[2023] KEHC 27174 (KLR)

JKM v POT & another (Civil Appeal E002 of 2023) [2023] KEHC 27174 (KLR) (Family) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27174 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E002 of 2023

PM Nyaundi, J

December 1, 2023

Between

JKM

Appellant

and

POT

1st Respondent

KNT

2nd Respondent

(Being an Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Nairobi delivered by Hon. Charity C. Oluoch (CM) ON 7th December 2023 in Milimani Children’s Case Number MMCHC. E1747 PT vs JKM)

Judgment

1. Vide Amended Memorandum of Appeal dated 1st January 2023, the Appellant seeks the following orders:-1. This appeal be allowed with costs2. The judgment and orders by the Hon. Magistrate be set aside and substituted by an award of this Honourable Court.3. This Honourable Court do make such further orders in the best interests of the minor.

2. This being a first Appeal the Court is obligated, as was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Limited [1958] to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its independent conclusion bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.

3. In the case of 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) (Judgment) Hon. Mativo J (as he then was) further enunciated on the role of the Appellate Court as followsA first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.

Trial in the Lower Court 4. The Respondents herein who are the biological mother and maternal grandmother of the minor (CEN) filed a suit (as Plaintiffs) in the Children’s Court in Nairobi being Suit No. E 1747 of 2021 seeking the following orders against the Appellant who was the Defendant in the Children’s case.1)An order awarding the actual custody of the child to the plaintiffs with visitation rights being granted to the defendant as per the court’s direction.2)An order awarding the legal custody of the child jointly to the plaintiffs.3)An order of provision of a USD 1500 monthly child support to be paid to the 1st plaintiff on the 5th of every month.4)A restraining order do hereby issue retraining the defendant herein JK of passport No. A1####87 through himself or agents(s) from removing the minor CEN Passport No. 660****66 from the jurisdiction of this court without the consent of the 1st plaintiff/Applicant/mother or court’s directions.5)An order that the defendant does bear cost of this suit.6)Any other reliefs that this honourable court deems fit and just to grant.

5. The defendant (appellant) in turn, filed a defence and counterclaim dated 20th April 2022. He sought the following orders in his counterclaim;1)A declaration that the 1st plaintiff has abandoned her parental responsibility towards the parental care and protection of the minor herein by taking her away from the custody, care and control of both parents in the USA and placing her in the control of the 2nd plaintiff in Kenya.2)A declaration that the minor, CENM is a citizen of the United States of America and therefore free to travel as such to the USA from Kenya in the company of her father, the Defendant.3)The legal and actual custody, care and control of the minor to be granted to the Defendant.4)An order permitting the Defendant to travel with the minor, CENM to the United States of America (USA).5)A production order be issued against the 2nd Plaintiff herein to produce the minor, CENM before this Honourable Court on such date and time as the court may deem fit and the court be pleased to make orders that the minor be handed over to the Defendant for travelling to the USA.6)The 2nd Plaintiff be compelled by the court to produce and hand over to the Defendant herein the passport and other travel documents including the personal belongings of the minor.7)A declaration that the 2nd Plaintiff being a person of extreme old age is incapable of taking parental responsibility of the minor.8)A declaration that the 1st and 2nd plaintiffs deliberately failed to disclose material and crucial information to this court thus resulting in issuance of ex parte interim orders on 28th December 2021 in their favour.9)The honourable court be pleased to issue a declaratory finding that the 1st and 2nd plaintiffs committed the offence of perjury to make false and misleading statements in the chamber summons and supporting affidavit dated 22/12/2021 with the aim of obtaining ex parte interim orders.10)The honourable court do punish the 1st and 2nd plaintiffs for perjury or in the alternative, make a recommendation that the 1st and 2nd Plaintiff be charged with the offence of perjury under sections 108 of the Penal Code, Cap 63 Laws of Kenya.11)Costs of this suit be awarded to the defendant.12)Any other relief this honourable court may deem fit to rant to protect the best interest of the minor.

6. The matter proceeded to hearing and the 1st and 2nd Respondent testified as witnesses while the Defendant testified as the sole witness of the defence. When the matter was initiated the 1st Plaintiff was in the USA by the close of the hearing she was in Kenya.

Summary of Respondent’s Case 7. PW1- PT, testified that she and the Appellant are the biological parents of the minor. The marriage between the two broke down on account of physical and emotional abuse by the Appellant. He also was not providing material and financial support. At the material time she and the Appellant were residing in the USA. Both of them have dual citizenship. The minor was 3 years old at the time of the hearing.

8. Prior to the divorce she and the Appellant had agreed to relocate to Kenya. The Appellant, She and the minor travelled from the USA to Kenya on 6th April 2021. Her father died and she decided to extend her stay in Kenya. She had had to travel back to the USA so as to facilitate the sale of the home they had shared. Having sold the home, they did not have a place to stay in the USA.

9. When she travelled back to the USA she left the child with her mother (2nd Respondent) and a nanny. On her return to the USA, the Appellant initiated proceedings against her with regards to the return of the minor to the USA. She was misled into signing an order that compelled her to deposit her passport with her lawyer until the minor was returned to the USA.

10. She filed the plaint while in the USA. She has interests in Kenya and has plans to relocate back to the Country. Currently she is the sole provider for the child. She has no objection to the Appellant having visitation rights of the minor.

11. On reexamination she confirmed she had signed a settlement agreement. She had not been able to travel to Kenya as her passport is withheld. She had managed to secure her passport and as at 23rd September 2022, she was back in Kenya and planned to stay in the Country indefinitely.

12. PW2- KNT she is the maternal grandmother of the minor and at the time the matter was initiated in Court had physical custody of the Child as the 1st Plaintiff was in the USA. Her daughter was married to the Defendant but the marriage was troubled. She has the support of her son in caring for the minor.

13. She was aware of an order by the Court in the USA ordering the return of the child. When the two travelled back to Kenya in April of 2021 they were coming to work. It coincided with the death of her husband. The Defendant returned to the USA earlier than the 1st Appellant. At the time, the Appellant was unable to travel as her passport was held by the authorities.

14. DWI - JKM He is the biological father of the minor. He denied that he had neglected to support the Respondent and stated that he provided for the minor in accordance with how they had agreed to share responsibilities. He has had challenges accessing the child while she is in Kenya. He denied that there were plans to relocate to Kenya. He had not been informed that the Child was enrolled in School.

15. He has suitable accommodation for the minor in the USA. He denied that he had ever abandoned the minor.

16. At the close of the hearing the parties filed submissions and the Court delivered judgment on 7th December 2012 on the following terms: -1)Both parents shall have joint legal custody of the minor.2)The 1st plaintiff/mother shall have actual custody, care and control of the minor within the Republic of Kenya. This means that no parent shall take the child out of the country without the consent of the other or leave of the court.3)The defendant shall have unlimited access to the minor when in the country, with prior notice to the 1st plaintiff through the advocates on record or directly.4)The access shall be supervised by a mutually agreed on member of the 1st plaintiff’s family, until the minor attains four years of age.5)The parties shall agree on a meeting up point through their advocates on record or seek directions from the court whenever necessary.6)The Defendant shall pay school fees for the minor at the current school or any other to be mutually agreed on. The defendant shall be introduced to and allowed reasonable access to the school to facilitate ease of compliance with the orders.7)The 1st plaintiff shall cater for all the other needs of the minor.8)Each party shall bear its own costs.

17. The Appellant being aggrieved by the judgment has mounted 18 grounds of Appeal as set out hereunder: -1)The Honourable Magistrate erred in law and fact by failing to hold that the minor herein has been abducted by the 1st Respondent.2)The Honourable Magistrate erred in law and in fact by failing to apply the provisions of The Hague Convention on the Civil Aspects of International Child Abduction (herein “The Hague Convention”) whose aim is to protect children internationally from the harmful effects of their wrongful removal or retention.3)The Honourable Magistrate erred in law and in fact by failing to recognize that under Article 2 (5) of the Constitution of Kenya, the general rules of international law shall form part of the law of Kenya and therefore the Hague Convention was applicable in this case.4)The Honourable Magistrate erred in law and fact by failing to order for the return of the minor back to the USA as required under the Hague Convention.5)The Hon. Magistrate erred in law and in fact by failing to recognize that the minor’s domicile was in the USA at the time the suit was filed by the Respondents herein.6)The Hon. Magistrate erred in law and in fact by failing to consider the best interests of the child under Article 53(2) of the Constitution of Kenya.7)The Honourable Magistrate erred in law and fact by failing to consider the principle of legal reciprocity wherein an order had been issued by Judge Andrew Hathcock in the District Court, 455th Judicial District in Travis County, Texas, USA ordering for the return of the minor back to USA and wherein the 1st Respondent, the minor’s mother had consented to the return of the minor back to the USA.8)The Honourable Magistrate erred in law and fact by failing to consider that the Respondents herein had lied under oath and committed perjury in their application dated 22/12/2021 and plaint in respect of which interim orders had been issued despite the concealment of material facts by the Respondents.9)The Honourable Magistrate erred in law and fact by dismissing the Appellant’s application dated 30/12/2021 and failing to consider the merits of the application and grounds raised therein.10)The Honourable Magistrate erred in law and in fact by restraining the Appellant from travelling with the minor to the USA despite recognizing that the minor is a citizen of the USA by birth.11)The Hon. Magistrate erred in law and in fact by granting supervised access to the Appellant despite no threat being evident or harm likely to be caused by the Appellant to the minor.12)The Hon. Magistrate erred in law and in fact by awarding sole actual custody of the minor to the 1st Respondent who is now an international fugitive in respect to warrant of arrest being issued against her by the Texas Court in USA.13)The learned Magistrate erred in law and in fact by failing to consider how the minor arrived in Kenya and that the minor was to return back to the USA with both parents by virtue of return tickets.14)The learned magistrate erred in law and in fact by ordering the Appellant to pay the minor’s school fees without considering that both parents have equal responsibility to provide for the child as required under Article 53 (1) of the Constitution.15)The learned magistrate erred in law and in fact by failing to recognize or consider the children officer’s report dated 28th January 2022 which recommended for the return of the minor and instead ordering for social enquiry report dated 28/11/2022 at the time of delivery of judgment.16)The Learned Magistrate erred in law and in fact by considering the contents of the children officer’s report dated 28/11/2022 without any input by the parties thereby violating the constitutional right of the Appellant to challenge evidence and to be heard.17)The Learned Magistrate erred in law and in fact by allowing numerous adjournments at the instigation of the Respondents hereby dismissing the best interest principle of the child.18)The learned magistrate erred in law and in fact by failing to consider the defence and counterclaim filed by the Appellant.

18. The Appeal was canvassed through written submissions, the Appellant filed written submissions dated 26th September 2023 whilst the Respondents submissions are dated 13th October 2023.

Appellant’s Submissions 19. The Appellant identified the following as the issues for determination;(i)Whether the Honourable Magistrate erred in law and fact by failing to order for the return of the minor back to the USA.(ii)Whether the Honourable Magistrate erred in law and fact by failing to consider that the Respondents herein had lied under oath and committed perjury.

20. On the first issue, counsel submitted that the District Court in the USA on 16th December 2021 ordered that the minor should be returned to the USA on the account of abduction. Relying on the decision on SAJ v AOG & another [2019] eKLR, it was submitted that this court should assume jurisdiction and decide whether to send the minor back to the jurisdiction where the order came from without going into the details of the dispute between the parents.

21. It was argued that since the court order in the USA was not set aside, the said order is valid and the child should be returned back to the USA. That the 1st Respondent has not demonstrated if the minor will be affected in any way if she is returned to the USA. The court was asked to adopt the provision of The Hague Convention on the Civil Aspects of International Child Abduction, 1980 and Section 3 of the Law of Domicile Act, Cap 37 Laws of Kenya.

22. On the second issue, it was submitted that the Respondents obtained an interim ex- parte order by giving false information to the court that the court in the USA had granted the 1st Respondent leave to relocate the minor to Kenya. That the trial court erred by not punishing the Respondents who are guilty of perjury.

23. Relying on the decision in Aviation & Airport Services Workers Union (K) v Kenya Airport Authority & another [2014] eKLR, counsel submitted that an advantage should be taken away from the Respondents who are guilty of non-disclosure. Counsel urged the court to allow the appeal and the prayers in the Memorandum of Appeal and condemn the Respondents to pay costs in the lower court and the appeal.

Respondent’s Submissions 24. The Respondents identified the following as the issues for determination;a)Whether reciprocal recognition of decision in USA applies to Kenya.b)Whether the minor was abducted from the United States of America.c)Whether the trial court erred in vesting custody of the minor with the 1st Respondent.d)Whether the trial court erred in granting the Appellant access and visitation rights.

25. Relying on Section 2 (1) and Section 13 (1) of the Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya and the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order 1984, Counsel submitted that the USA is a non-reciprocating country and therefore, their decision is not binding on Kenyan court. further, that Section 3 (3) (e) of the Foreign Judgement of the (Reciprocal Enforcement) Act Cap 43 of the Laws of Kenya excludes proceedings regarding custody or guardianship.

26. It was submitted that the minor has dual citizenship and therefore, she is legally in the country.

27. Counsel submitted that the court did not err in granting actual custody to the minor’s mother because the minor is still a child of tender years who should be under the care of the mother. Reliance was placed on the following decisions; KMM vs JIL [2016] eKLR and SCM vs JKM [2021] eKLR where the courts held that actual custody of a child of tender years should be granted to the mother of the child.

28. Counsel submitted that the minor is already in school and if the appeal is allowed, the appellant will take the minor out of the jurisdiction of this court. That it is in the best interests of the minor that custody should remain with the 1st Respondent to avoid destabilizing the minor who is already in school. Counsel argued that the appeal is baseless, lacks merit and should be dismissed with costs.

Analysis and Determination 29. Having considered the pleadings herein, submissions filed authorities cited and the relevant law, I discern the following as the issues for determination.1)Whether it is in the best interests of the Child that the Court should overturn the decision of the trial court and-a.Order that the Appellant be allowed to travel with the Child to the USAb.Vary the decision of the trial court in relation to legal and actual custody, access and visitation of the minor

30. It is well established by Statute and judicial precedent that in all matters touching on a child, the best interests of the child should be the dominant consideration. Indeed Section 8 of the Children Act provides1)In all actions concerning children, whether undertaken by public or privat3e 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.

31. The Best interest Considerations as set out in the First Schedule are1)The age, maturity, stage of development, gender, background and any other relevant characteristic of the child2)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 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/ guardians(s) in the past or currently and how that abuse affects the emotional stability and physical safety of the child14)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 fed16)The existence of a parent’s or guardian (s) conviction of 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 persona.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 felony18)Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child

32. This Court in determining the issues is therefore obligated to give primacy to the best interests of the minor herein.

33. The Appellant seeks that this Court overturn the decision of the lower Court for a variety of reasons, including that- (1) there is a valid judgment by Judge Andrew Hathcock in the District Court, 455th Judicial District in Travis County, Texas, USA requiring that the Child be returned to the jurisdiction of the Court; (2) The Child having been abducted the Court should in accordance with the Hague Convention on the Civil Aspects of International Child Abduction,1980 ensure the return of the child to the Country of her domicile; (3) The Court erred by discounting the children officer’s report dated 28th January 2022 and instead relying on report of Directorate of Children’s Services report dated 28th November 2022.

34. With regard to the decision of the District Court in Travis Court and whether this Court is obligated to enforce it section 3 (3) (e) of the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya) provides“This Act does not apply to a judgment or order –(e)in proceedings in connection with the custody or guardianship of children.”

35. On the basis of the clear statutory provision I find that the decision of the District Court was not enforceable by the Trial Court I am fortified in this regard by the decision of Hon. Thande J in re AVK (Child) [2021] eKLR, where she observed[12]This Court has no jurisdiction to enforce or register a foreign judgment in proceedings in connection with the custody or guardianship of a child. This is because the Act does not apply to judgment in in such proceedings. In this regard, I agree with Musyoka, J. who in Ian Mbugua Mimano v Charlotte Wamuyu Mutisya & 2 others [2014] eKLR, stated:There is no jurisdiction for me to deal with the matter of the enforcement of a foreign decree in proceedings in connection with the custody or guardianship of a child.There is clearly no merit in the application dated 20th May 2014 so far as it relates to enforcement of a decree made by a USA court in proceedings in connection with the custody or guardianship of a child. I decline to grant it, and I hereby dismiss it with costs.

36. In MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment) the Supreme Court in overturning the decision of the High Court and the Court of Appeal observed that the Courts had erred in placing reliance on the decision in the Family Court in the UK and held thus[49]It is evident that the determinations made by the learned judges of the superior courts relied on the findings by the English Court. However, the English Court did not consider the significance of the PRA and the consequences of its violation.[50]We have also considered the provisions of the Evidence Act, chapter 80, Laws of Kenya on matters which the court can take judicial notice of and judgments from foreign courts do not fall within the purview of the issues for consideration on judicial notice.[51]We are therefore constrained to fault the learned judges of the Court of Appeal in placing credence on the findings of the family court in English Court which largely disregarded the PRA; an agreement that could not be violated without consequence. In addition, the PRA, a binding agreement between both the appellant and the 1st respondent could only be terminated by the High Court.

37. On whether or not the child was abducted and whether the Hague Convention comes into play so as to facilitate the return of the child to the USA. The Court observed that the parties had conflicting accounts on how the child travelled to Kenya. It was common ground however that it was the refusal by the Respondent to return the child to the USA that triggered the filing of the matter at the District Court in Travis County.

38. Kenya is not a signatory to the Hague Convention, it therefore is not one of the international instruments that have the force of law by dint of Article 2 (5) and (6) of the Constitution of Kenya, 2010.

39. The facts in the instant case are almost on all fours with those in SAJ v AOG & another [2019] eKLR, Musyoka J. expressed himself hereunder on the issue of application of the Hague Convention and the best interests of the Child-[30].The above case demonstrates that in such instances, the court is required to assume jurisdiction to determine whether to send the children back to the jurisdiction from whence they came without going into the details of the dispute between the parents, and without more than such investigations as satisfies the court that the children will come to no harm.[31].In determining the petition at hand then, it is not enough for the petitioner to claim that the 1st respondent abducted the child. He has to go further and demonstrate that the child has suffered prejudice as a result of his continued retention in Kenya. In all matters involving a child, the best interest of the child must be given paramount consideration. In Re R (Childs) (Wardship: Jurisdiction) (1981) 2 FLR 416, Ormond LJ summarized the state of the law in such instances when he stated that:‘ … the strength of a summary order for the return of the child to the country from which it has been removed, must rest, not on the so-called ‘kidnapping’ of the child, or an order of a foreign court, but on the assessment of the best interests of the child. Both, or either, are relevant considerations, but the weight to be given to them must be measured in terms of the interest of the child, not in terms of penalizing the ‘kidnapper’, or of comity, or any other abstraction. ‘Kidnapping’ like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases to the prompt return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law.’

40. In accordance with judicial precedent therefore I find that as Kenya is not a signatory of the Hague Convention 1980, there was no obligation on the part of the Court to order for the return of the minor to the USA on the basis of the convention, especially as the Court was obligated to consider the best interests of the child.

41. Lastly on this issue the Appellant urged that the Court would have arrived at a different decision if it had not placed undue regard to the report dated 22nd November 2022 by the Directorate of Children Services. On this point it is important to note that the reports such as those of the Children Officers are meant to provide the Court with objective assessment that enable the Court to arrive at its decision. The reports are opinions and therefore cannot be prescriptive. The Court in arriving at its decision is guided by the reports but not bound by them especially as the Court is required to apply the law in exercising its discretion.

42. In this instance the Children Officer recommended that the Child be returned to the USA on the basis of the decision of the Texas Court, as demonstrated above this position is not supported by the Applicable law on enforcement of foreign decisions.

43. In the circumstance I am inclined to find as the Court did in the matter of SAJ v AOG & another [2019] eKLR that the application for the return of the Child lacks merit as it has not been demonstrated that the continued stay of the Child in Kenya is detrimental to the Child’s best interest. The Child has been in Kenya since 2021, her parents are both Kenyan and she is a citizen by dint of Article 14 (1) of Constitution of Kenya. On this account she is a dual citizen of USA and Kenya.

44. Having declined to order the return of the child to the USA, I will proceed to consider whether a basis has been laid to vary the decision of the trial court on the custody, maintenance and access of the minor.

45. The Appellant faults the decision of the Court for not upholding the best interests of the child and takes issue with the Court for directing that access by the Appellant be supervised and for ordering that the defendant pay school fees for the minor, as in doing so the Court has imposed a heavier burden on him thereby failing to ensure that parental responsibility was to be shared equally.

46. In MAK v RMAA & 4 others (Supra) the Supreme Court observed[85]The committee on the CRC[General comment No 14 [2013] on the right of the child to have his or her best interests taken as a primary consideration] has observed at clause 11 that ‘the best interests of the child is a dynamic concept that encompasses various issues which are continuously evolving.’ Thus, the concept of the child’s best interest is flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs.

47. In the instant case both the reports by the Children Officers were agreed that the Child appeared well taken care of. There was no evidence placed before the Court to demonstrate that either parent posed a risk to the well-being of the child.

48. The minor herein was aged 3 years at the time of the judgment. There is an abundance of judicial precedent that children of tender years are best placed with the mother. I agree with the reasoning of Ngugi J (as he then was) in SMM V ANK [2022] eKLR wherein he observed it would not be in the interests of the minors to ‘yank them out’ of the environment they had been in for a considerable amount of time as this would cause psychological trauma and therefore not be in the interests of the child.

49. No evidence was tendered to show that her continued stay in Kenya would occasion any violation of her rights. In the circumstances I find that as enumerated above having regard to the best interests of the Child that the Court did not err in granting actual custody to the Respondent. The Best interest principle requires that the Child is guaranteed a stable environment in which the child will thrive socially, emotionally, physically for that matter holistically. It is in an environment in which the Child has the best chance of actuating their rights as enumerated under Article 53 of the Constitution of Kenya.

50. The Supreme Court in the decision of MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment) emphasized that there is no hierarchy to Children rights. One of the rights of the Child is a right to parental care and provision. In this case owing to the separation between the parents the minor cannot stay with both parents.

51. The Court is therefore mandated to make orders that enable the Child enjoy their right to parental care. The question for determination is whether the circumstances in the current case warranted an order for supervised access. I do not think so. Both the Children’s Officer reports recommended that the minor have access to both parents. There is no evidence before the Court to show that the Defendant would pose a threat to the minor. In the circumstances, I vary the order by removing the requirement that the visits by the Appellant be supervised.

52. Any concerns relating to possible removal of the Child from the jurisdiction of the Court are addressed by the Order that neither parent shall remove the minor out of the Country without the consent of the other or the leave of the Court.

53. Given that the parents are residing in different countries, in addition to the physical access when the Appellant is in the Country, the appellant shall have daily virtual access to the minor on a schedule to be agreed upon with the Respondent.

54. On maintenance, the Court directed that the Appellant pay school fees for the minor and the Respondent cater for all the other needs of the minor. I find this to be in compliance with the law and therefore have no reason to disturb it.

55. In the circumstances the Appeal partially succeeds, as I uphold the decision of the Trial Court and vary only to allow the Appellant to have unsupervised access to the Child while he is in Kenya and he will have virtual access to the minor on a daily basis on a schedule to be agreed upon with the respondent.

56. Each party will bear their own costsIt is so ordered

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 1STDAY OF DECEMBER, 2023. ........................P M NYAUNDIHIGH COURT JUDGEIn the Presence ofEsilaba h/b for Angaya Advocate for the RespondentMusesya Advocate for the Appellant