https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7608

JMO v EAN (Civil Appeal E004 of 2020) [2026] KEHC 7608 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7608 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E004 of 2020 LM Wachira, J May 29, 2026 Between JMO Appellant and EAN Respondent (Being an appeal from the Ruling and Decree of the Resident Magistrate, Kisumu Children’s Case No. 28 of 2019 dated 23rd September, 2020) Judgment Background 1.The Respondent herein filed a suit at the Trial Court vide a Plaint dated 17th April 2019 seeking orders for actual and legal custody of the minors until they attain age of majority. She also sought that the Appellant be ordered to maintain the minors, and be allowed access but be barred from accessing the Respondent’s residence. The matter proceeded for hearing and Judgment was delivered on 12th August 2020 and the following orders were given:-a.The mother shall have the children during school times. However, during the weekends the father shall have custody. Such that every Saturday at 9.00am, they will go to their father’s place and return to their mother’s place on Sunday at 4.00pm.b.The children shall remain in their current school.c.The father shall continue paying school fees and other school related needs.d.The father shall have the minors during holidays.e.The mother shall pay for transport cost to school.f.Each parent shall provide for the children’s needs whenever necessary at the time the minors shall be in their custody this includes but not limited to medical care.g.Each party to bear its own costs. 2.The Respondent being dissatisfied with the said decision, made an application for review of the above orders. The Appellant opposed the application. Upon hearing the parties, the court made the following orders:a.The mother shall have the minors during school periods as well as during the weekends and the last week of the holidays before opening day.b.The father shall have the minors remaining days of the holidays.c.The Children shall be transferred to a school near the place where the mother resides, but the two parties should agree on the school within three weeks from the date hereof, failure to agree then the court will decide. The father shall pay school fees and purchase all school related needs as per the fees structure in the agreed school.d.The mother shall pay for bus fare to school if any.e.Each parent shall provide for minor’s needs when in their custody which includes but not limited to medical expenses.f.This being a children’s case, each party shall bear its own costs.And these are the orders that the Appellant is dissatisfied with and has preferred an appeal. The Appeal 3.The Appellant has appealed and sought to set aside the orders of the trial court on the following grounds:-a.The Learned Trial Magistrate erred in both law and fact in arriving at a decision which was not only manifestly unjust but also against the weight of the evidence on record.b.The Learned Trial Magistrate grossly misdirected herself in treating the evidence on record superficially and consequently coming to a wrong conclusion on the same.c.The Learned Trial Magistrate misdirected herself in ignoring the principles applicable on the law of review and the relevant authorities.d.The Learned Trial Magistrate erred in not considering the evidence presented before her in totality and in particular the evidence presented on behalf of the Appellant.e.The Learned Trial Magistrate erred in not considering the orders made on 3/9/2020.f.The analysis of the evidence as per the ruling is extremely wanting in material respects.g.The Learned Trial magistrate misapprehended the evidence on record to a material degree resulting in her arriving at a wrong conclusion.h.The Learned Trial Magistrate failed to apply judicially and to adequately evaluate the evidence, grounds of opposition, replying affidavit and submissions tendered and thereby arrived at a decision unsustainable in law. 4.The appeal was canvassed by way of written submissions. Appellant's Submissions 5.The Appellant submitted that the Trial Magistrate ignored the evidence on record when she did the ruling on review. That the Respondent had indicated that whenever she was away, the Appellant would take care of the children and at no point had the Respondent indicated that that the Appellant was not taking care of the minors. Counsel submitted that it is in the best interest of the children to be with the father, more so because they are boy children and cited Section 23 (2) and 83 (i). 6.Counsel submitted that Article 53(2) of the Constitution of Kenya provides that: “A child's best interest is of paramount importance in every matter concerning the child." And that Section 83 (1) of the Children Act, 2022 states “In determining whether or not a custody order should be made in favour of the applicant, the court shall have regard to-a.The conduct and wishes of the parent or guardian of the child;b.The ascertainable wishes of the relatives of the child;c.The ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years preceding the applicationd.The ascertainable wishes of the child;e.Whether the child has suffered any harm or is likely to suffer any harm if the order is not madef.The customs of the community to which the child belongs;g.The religious persuasion of the child;h.Whether a care order, or a supervision order, or a personal protection order, or ancillary order has been made in relation to the child concerned and whether those orders remain in force;i.The circumstances of any sibling of the child concerned, and of any other children of the home if any;j.The best interest of the child. 7.The Appellant submitted that Section 4 of the Children’s Act states that; “All actions concerning children, whether undertaken by public or private social welfare institutions, courts of law or any other institutions, the paramount consideration shall be the best interest of the child, and cited the decision in MAA vs B S Civil Appeal No. 32 of 2017. Respondent's Submissions 8.The Respondent submitted that the Trial Court’s determination was made in accordance with the best interests of the minors. That the Court had considered the circumstances of the minors and took appropriate measures to safeguard the minors from potential harm. She submitted that the Appellant cannot claim prejudice arising from the decision as he was granted care of the minors for three weeks during the holiday period, a time when the minors would be free from academic obligations and therefore able to spend meaningful and uninterrupted time with him. 9.In contrast, the Respondent states that she was allocated the school-term period, during which time the minors would be occupied with school attendance, homework, and other structured activities and that is why the Trial Court considered granting the Respondent the weekends as well as the last week of the holidays. The Respondent submitted that the Appellant was afforded adequate opportunity to provide paternal love, care, and attention contrary to his assertion that he lacked sufficient time to do so and therefore stated that the Trial Court’s decision appropriately balanced the interests of both parents while prioritizing the welfare and best interests of the minors. 10.The Respondent further submitted that notwithstanding the opportunity granted to the Appellant to spend time with the minors and the order directing him to pay school fees and cater for the minors’ other needs, he has failed to comply. Instead, it is the Respondent who has consistently met these expenses without issue or complaint. 11.The Respondent also submitted on the laws governing review of orders in Children’s matters and stated that while review is generally governed under Section 80 of the Civil procedure Act as read with Order 45 of the Civil Procedure Rules, Review under the Children’s Act are governed by Article 53 of the Constitution of Kenya, Section 141 (previously section 98 and 99) of the Children’s Act. She submitted that in applying these provisions, the Children’s Court does not look into stringent procedural requirements but the welfare of the children. The respondent cited the decision in JA VS AA [2020] e KLR wherein Lady Justice R.E Aburili stated that:-“I now proceed to determine whether the trial court was bound by procedural requirements of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 45 Children’s matter are special matters governed by Article 53 of the Constitution and the Children’s Act, 2001. Section 99 of the Children’s Act provides for power to impose conditions and to vary orders... In MKN VS JC & Children Court Kericho [2019] eKLR, the court persuasively and rightly held....... “application for review can only be made in the court which determined the matter.... The parent responsibility does not cease because of separation or divorce. However, circumstances and means may change, and the best course of action is either for the two parents to agree or go to the Children’s Court and report any charged circumstances for decisions.” 8.The Respondent basing its reasoning on the above decision, urged the court not to disturb the order of the trial court. Analysis and Determination 13.As a first Appellant court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused by the Court of Appeal in the case of Selle & Another Vs Associated Motor Boat Co. Ltd &Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced in the trial court in order to arrive at my own findings. The parties testified before the trial court and I have had an opportunity to review the evidence in the lower court file. The Appellate court will not normally interfere with a lower court's findings of fact unless the same is founded on wrong principles, misapprehension of evidence or based on no evidence. The court of Appeal in the Selle case (supra) held thus:“A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion,'' 14.From the testimony of the parties, the Respondent has custody of the children. (I note that one was born in 2008 is likely to be an adult as at now). The other should be about 10 years. The Appellant was granted access to the Children. The orders being challenged were issued in September 2020. 15.I have considered the evidence that was adduced in the trial court and the Record of Appeal and the parties’ respective written submissions, I note that the only issue that this court needs to determine is:a)Whether the trial court considered the best interests of the minor before awarding custody to the Respondent? 16.With regard to this issue, Article 53(2) of the Constitution of Kenya 2010 provides that:'' A child's best interests are of paramount importance in every matter concerning the child.'' 17.Although the best interest standard can be hard to define in some situations, some factors are common in ''best interest'' analyses in most custody situations. Section 83(1) of The Children Act lists the following factors to be critical in "best interest" analysis:-1)Wishes of the child (if old enough to capably express a reasonable preference);2)Mental and physical health of parents;3)Religion and/or cultural considerations;4)Need for continuation of stable home environment;5)Support and opportunity for interaction with members of extended family of either parent;6)Adjustment to school and community;7)Age and sex of child;8)Parent use of excessive discipline or emotional abuse; and9)Evidence of parental drug, alcohol or sex abuse. 18.In Sospeter Ojaamong vs Lynnette Amondi Otieno Court of Appeal Civil Appeal No, 175 of 2006 the court held:'' The principles that guide the court in custody of children are that except where exceptional circumstances exist, the custody of such children be awarded to the mother, because mothers are generally best suited to exercise care and control of the children.''The exceptional circumstances would include if the mother is unsettled, has taken a new husband or her living quarters are in a deplorable state.'' 19.In the instant case it is undisputed that the mother of the minors is stable and is willing to take care of her children. There is no allegation that she has remarried or is living in a sorry state. There is also no allegation that she is unsettled or is living in conditions that would not be conducive for the minors. She was therefore suitable to have the custody of the minors. The only issue raised by the Appellant when he testified in court is that the Respondent was very young and he wanted to set her free. I have considered this statement, and my finding is that being young would never be a challenge to bringing up ones own children. The Respondent had not requested to be set free from her own children. 20.The Appellant has challenged the review orders that were granted on the 23rd September 2020, indicating that the Learned Trial Magistrate misdirected herself in ignoring the principles applicable on the law of review and the relevant authorities. I have considered the orders that were granted on review. When dealing with Children’s matters, reviews are very common. This is because circumstances may change. So that strict procedural technicalities are not the primary considerations, rather the prevailing circumstances and best interest of the child are the main considerations. This was buttressed in JA VS AA [2020] e KLR wherein Lady Justice R.E Aburili, stated“In the instant case, .... the Trial Court ordered for joint custody of the 2 children FO &LA and made an order that the Respondent have physical custody of the children while the Appellant would have unlimited visitation rights during school days so long as it did not interfere with their education. In the variational review order, the trial Court suspended custodial visitation rights granted to the Appellant on LA until LA is interviewed and her opinion recorded...... In my humble view, the review order by the trial court was in best interest of the child” 21.. My finding is that the review order was proper and it was in the best interest of the minors. 22.It is my finding that there is no merit in the Appeal herein and the same is dismissed with costs to the Respondent.Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2026.…………………………..………………L.M. WACHIRAJUDGEIn the Presence of:Kevin – Court Assistant…………………………………………….… -for the Appellant……………………………………………. -for the Respondent