[2004] KEHC 1686 (KLR)
The court determined that the welfare and best interests of the minor children are paramount in deciding custody and occupation of the matrimonial home. The children, being of tender years and school-going age, require the daily care of their mother and should remain in the familiar environment of the matrimonial...
Source-derived case information.
- Citation
- [2004] KEHC 1686 (KLR)
- Parties
- Petitioner: John Michael Midwa; Respondent: Olivia Akinyi Midwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 8 of ??
- Procedural Posture
- Divorce Cause / Interlocutory Applications and Interim Orders Pending Final Determination
- Outcome
- Interim orders granted for custody of the children and occupation of the matrimonial home to the respondent; petitioner to provide maintenance.
- Judges
- VV Patel
- Legal Topics
- Child Custody, Matrimonial Home Occupation, Maintenance of Children, Separation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Michael Midwa
Petitioner
Olivia Akinyi Midwa
Respondent
Procedural Posture
Divorce Cause / Interlocutory Applications and Interim Orders Pending Final Determination
Legal Issues
- 1 Whether the respondent should be granted custody of the minor children of the marriage.
- 2 Whether the respondent should be allowed to continue occupying the matrimonial home with the children.
- 3 Whether the petitioner should be ordered to provide maintenance for the respondent and the children.
Ratio Decidendi
The court determined that the welfare and best interests of the minor children are paramount in deciding custody and occupation of the matrimonial home. The children, being of tender years and school-going age, require the daily care of their mother and should remain in the familiar environment of the matrimonial home for their emotional and psychological well-being. The respondent's HIV status, not being a communicable disease, does not constitute a valid ground for denying her custody or occupation. The court also considered the conduct of both parties but found that the separation order was not contested and that the animosity between the parties could be managed by granting the mother...
Court Disposition
Interim orders granted for custody of the children and occupation of the matrimonial home to the respondent; petitioner to provide maintenance.
Orders
- The respondent is granted interim custody of the minor children.
- The respondent is permitted to continue occupying the matrimonial home with the children.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
div cause 8 of 00
JOHN MICHAEL MIDWA ....................................... PETITIONER
VERSUS
OLIVIA AKINYI MIDWA ........................................ RESPONDENT
P R O C E E D I N G S
2nd February 2000. Memorandum of Appearance entered on behalf of the Respondent by M/S Aming’a Apiyo, Masese & Co Advocates, Nairobi.
SIGNED DEPUTY REGISTRAR
9th February 2000 Answer to Petition and cross-petition filed by M/S Aming’a Opiyo, Masese & Co Advocates for the Respondent.
SIGNED
DEPUTY REGISTRAR 29. 3.2000
CORAM: Patel J.
Turus Court Clerk.
Opiyo for Applicant.
Masese for Respondent.
COURT: By consent both applications be heard on 6. 4.2000 before any other judge.
V.V. PATEL
JUDGE
6. 4.2000 Rawal C.A Mr. Moloollo for the Petitioner
Mr. Mwangi holding brief for Mr. Opiyo for the Applicant. Mr. Kanyeri Court Clerk. COURT: The Petitioner to file and serve the further affidavit on or before l0th April 2000. The applications (both) be mentioned on l0th April 2000 before Honourable Duty Judge.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
6. 4.2000 10. 4.2000
Opiyo for Applicant.
No appearance for Respondent. COURT: Upon request hearing fixed for 18. 4.2000. V.V. PATEL JUDGE 18. 4.2000 Rawal C.A Mr. Opiyo for the Applicant. Mr. Moloollo for the Petitioner/Respondent. Mr. Kaburu. COURT: By consent both the applications be heard on 27th April 2000. K.H. RAWAL (Mrs) COMMISSIONER OF ASSIZE 27. 4.2000 CORAM: Khamoni J Kabiru Court Clerk. Mr. Opiyo and Mr. Orenge for the Respondent. Mr. Mr. Oloo for the Petitioner. COURT: Two applications to be heard. One is Chamber Summons dated 28. 3.2000 and the second one dated 29. 3.2000, both adjourned for hearing on 3. 5.2000 before any judge. www.kenyalawreports.or.ke 4 KHAMONI JUDGE 3. 5.2000 Rawal C.A Mr. Opiyo for the Respondent Mr. Makollo for the Petitioner. Mr. Makori Court Clerk. MR. OPIYO: Applications dated 28th March 2000 and 29th March 2000 - affidavit of the Respondent sworn on 28th March 2000 - reply thereof affidavit of 6th April 2000. Replying affidavit sworn on 5th April 2000, Further affidavit sworn on l0th April 2000. Grounds of oppositions and those of support in the application. Prayer No. 2 of the application dated 29th March 2000 not be bound to cohabit - not contested. Issues on hand custody of the children of the marriage and occupation of matrimonial home. The husband is ready to maintain the Petitioner. The children are minors l0 and 7 years of age. School going age. They need day to day care of the mother. They need to stay in the familiar place of matrimonial home - Plainsview, off Mombasa Road, emotionally and psychologically better catered for by their mother. Mother is contributor to www.kenyalawreports.or.ke 5 the matrimonial home, Petitioner is as a guarantor. It is fair that she should continue to stay in the matrimonial home with the children. Separation order is not contested. Animosity between the two would be cared for. Major ground is sickness - disclosed is not communable disease - children will not be endangered. HIV positive - that cannot be a ground for denying a mother. K.H. RAWAL (Mrs) COMMISSIONER OF ASSIZE Mr. Mokollo: Rely on the pleadings filed by the Petitioner. The children need the support as they are minors but they must not necessarily be left under the care of their mother. Prince concern is the best welfare of the children. The Petitioner is best suited to provide for the welfare. The custody of the children is also to be determined on the conduct of the parties. The Respondent’s conduct does not support her claim. She is intemperate and violent. Royden’s Law - page 89l. We rely on the nature of the disease and also on the conduct of the Respondent. Mary Thogori Mutheu Vs. Paul Kamau Mutheu and Taylor Shariff Shamalla Vs. Jared Shamalla. The court takes into account the conduct and excludes the party who is violent from the matrimonial home. Petitioner has undertaken to provide for reasonable maintenance and accommodation.
Petitioner.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
MR. OPIYO: Conduct - Petition filed 24th January 2000.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
COURT: I suggest a mention on l0th May 2000 at 2 p.m with the parties.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
3. 5.2000
RAWAL C.A
Coram as on 3rd May 2000 and parties in person.
COURT: Further mention on 12th May 2000 at 10. 30 a.m.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
10. 5.2000
RAWAL C.A
Mr. Opiyo for the Applicant.
Mr. Makoloo for the Respondent
Mr. and Mrs. Midwa.
Mr. Makori Court Clerk.
MR. MIDWA: The tenant in the out house has agreed to vacate by 17th May
2000.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
12. 5.2000
COURT: Ruling on 6th June 2000.
K.H. RAWAL (Mrs)
COMMISSIONER OF ASSIZE
12. 5.2000