https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/501

KMS v HHA & 2 others (Children's Case E036 & E006 of 2024 (Consolidated)) [2026] KEMC 501 (KLR) (14 August 2026) (Judgment) Neutral citation: [2026] KEMC 501 (KLR) Republic of Kenya In the Wajir Law Courts Children's Case E036 & E006 of 2024 (Consolidated) FX Baraka, RM August 14, 2026 Between KMS Plaintiff and HHA 1st Defendant FAD 2nd Defendant The Attorney General 3rd Defendant Judgment 1.In the good book in 1st Kings 3:16-28, two women presented themselves before King Solomon. One of them told the master that she lived with a second lady in the same house. That two days after the 1st woman gave birth to a boy, the second woman too gave birth to a boy. The two women stayed in the same house. One night, the second woman accidentally rolled over on her baby and smothered him. She got up during the night, took the 1st woman’s child from her side when she was sleeping and replaced the 1st woman’s child with her dead child. 2.The next morning, the 1st woman woke up to nurse the baby only to notice that the baby was dead. On looking at the child closely, the 1st woman noticed that it was not her child. Immediately, the 2nd woman submitted that the living child was hers and the dead child was for the 1st woman and so the argued was presented before the King. King Solomon noted that the second lady claimed that the living child was hers and that the dead child belonged to the 1st lady. In his wisdom, King Solomon sent for his sword and asked that the living child be cut in two and to give each woman half of the baby. In so doing, King Solomon was able to know the heart of a real mother. It is only the real mother who turned out to be kind, caring, loving and compassionate. The real mother cried out in terror for her child’s life, begging King Solomon to give the living child to the other woman, she said – “please your Majesty, don’t kill the child! Give her the baby” 3.By default, never by design, this court has had two years of two women presenting their case directly and indirectly to this court. This court has witnessed the good, the bad and the ugly and has no doubt as to who King Solomon would allow custody of Baby Z. I AKA Baby Salma AKA R. M. M. For purposes of this Judgment, the minor herein shall be referred to as Baby Z. Background 4.Mrs. HHA (1st Defendant) approached this court vide Application dated 16th May 2024. In the said Application, Applicant sought to foster Baby Z. As per the application, Baby Z had been abandoned by the mother when she was 8 months old. As per the filed documents, Baby Z was abandoned by the mother on 3rd April, 2017 only to be rescued at the gate of the area chief Township who reported the matter to the police and Baby Z was subsequently handed over to Mrs. H on 4th April, 2017. The rescue of Baby Z was recorded at Wajir Police station vide late entry OB No 13/19/05/2017 by PC Fardosa. Subsequently, noting that there was no children rescue centre, after the report, children officer Mr. Mwangi was invited to the police station to give guidance noting that no report of any missing child had been reported at the police station and that Baby Z needed a home even as further action was to be taken by the police, children office and the State. 5.Due to Baby Z’s health condition, she was admitted at Wajir referral hospital for assessment and treatment. As per the documents filed in court, the children office initiated a tracing exercise with the intention of locating the parents of Baby Z. The documents direct that the children office Wajir reached out to the local radio stations, the chief offices and other security agencies. Unfortunately, these efforts could not yield any substantial progress in locating the parents or Baby Z’s next of kin. 6.In the best interest of Baby Z, the children office Wajir then identified a foster mother – Mrs. HHA (1st Defendant ) to take care of Baby Z as they assessed her suitability. As per documents filed, in the same year 2017, H – 1st Defendant was taken through process of family alternative care to prepare her for the task ahead. Of immediate need, Baby Z needed food, shelter, clothing, parental care, education, love/affection, reunification to a family structure and general protection. 7.As per the application in 2024, Baby Z had for 7 years been fostered by Mrs. H (1st Defendant) a person well known to the children office as a businesswoman who was capable of taking care of Baby Z and that the children officer consistently carried out supervision of the child in order to assess Baby Z’s wellbeing and development. 8.It is important to note that since the reporting of the abandonment of Baby Z in 2017, the mother Mrs. SM Abdi, the father and the relatives never reclaimed Baby Z and no police report was ever made at least from 3rd April, 2017 to 25th November 2017 (when Plaintiff claims Baby Z was born). Mrs S unfortunately passed on on 17th February, 2019 (see death certificate) without ever reclaiming the child or reporting the matter to the authorities. Equally, as per the documents, nothing was ever filed to inform court of the alleged mental challenge allegedly suffered by Mrs. S. The documents filed by all parties point at a lady only suffering from Tuberculosis and not any mental issue. Court equally note that the medical documents point at a mentally stable S as they contain including her telephone numbers. 9.Whereas as court had fixed a ruling for 20th May, 2024 for the foster care application, the Plaintiff – Mrs. K challenged 1st Defendant’s application. Court allowed Plaintiff – Mrs. K to address court. On 21st May 2024, Mrs. K informed court that she is related to the minor – Baby Z. Take note that this was 7 years since Baby Z was rescued and handed over to 1st Defendant. That all along, Baby Z was under the care and protection of 1st Defendant since her childhood at 8 months. 10.Court directed Children officer to accommodate Plaintiff – Mrs. K in the proceedings. That the children officer to file a fresh foster care and include Mrs. K as the Respondent. Mrs. K was directed to respond to the application and substantiate her position. Hearing was fixed for 4th July, 2024. 11.On 4th July 2024, when court was to deliver Ruling, Mrs. K retained Counsel Mrs. Odiya who subsequently filed a Preliminary Objection. Court directed that Counsel Mrs Odiya to serve the Preliminary Objection, court fixed hearing of the Preliminary Objection for 12th July 2024. On 12th July, 2024, parties had not complied with court directions, they sought more time to comply. Hearing of the Preliminary Objection was rescheduled for 9th August, 2024. 12.On 9th August, 2024, Counsel Odiya informed court that the Client had filed another suit No E 036 of 2024. She prayed for directions noting the presence of E 006 of 2024 and E 036 of 2024. Court directed that parties highlight submissions and have the Preliminary Objection determined first. Ruling was thereafter fixed for 27th August, 2024. On 27th August 2024, ruling was delivered, the Preliminary Objection dated 3rd July, 2024 was dismissed with no orders as to costs. On the same day, parties by consent agreed to consolidate E 006 of 2024 and E 036 of 2024. Counsel Wanyoike – for 1st Defendant informed court of his intention to file a counter claim. Parties agreed to have E 036 of 2024 as the lead file. Mention for pre-trial directions was fixed for 10th September, 2024. Before 10th September, 2024, Mrs. Odiya had filed a chamber summons application in E 036 of 2024. On 9th August, 2024, court directed parties to file their responses, supplementary affidavit, submissions and have highlight submissions on 23rd August, 2024. 13.On 23rd August, 2024, parties had not complied, further, the Attorney General raised the issue of DNA. Parties were directed to agree on how to settle DNA costs, regarding the application, highlighting was fixed for 24th September, 2024. 14.On 10th September, 2024, Counsel Mr. Kiplagat holding Mrs Odiya’s brief informed court that Mrs Odiya had filed a letter dated 9th September, 2024 requesting court to recuse itself. Since no formal application had been filed, court directed Mrs Odiya to file an application for recusal, parties to respond, parties to file submissions and highlighting to take place on 27th September, 2024. On 27th September, 2024, parties highlighted their submissions concerning recusal. Court fixed ruling for 4th October, 2024. Additionally, court informed parties of the attempt to bribe court. That a police officer was sent by the plaintiff’s family to issue a bribe of Kshs. 100,000.00. Court reported the matter to relevant authorities and reprimanded the police officer. 15.On 4th October, 2024, a ruling was delivered dismissing the application for recusal. Counsel Odiya prayed for 15 days to enable her appeal the decision. Surprisingly and a clear sign of sharp practice, court was informed that even before the ruling on recusal had been delivered, the Plaintiff had already filed an appeal – Garissa Appeal No E 001 of 2024. Even more shocking is that Mr. Kiplagat holding brief for Mrs Odiya was aware that the said appeal was slated for 14th October, 2024. Even as counsel for the Defendants were venting their frustration with the kind of practice exhibited, Counsel Mrs Odiya popped in the virtual session and confirmed that she filed an appeal on 26th September, 2024. It was too confirmed that Counsel Odiya had prayed for interim orders but High Court had not given them any interim orders. Consequently, court directed parties to deliberate on the DNA issue. A further mention was fixed for 24th October, 2024. 16.On 24th October, 2024, Counsel Mr. Kiplagat informed court that a stay of proceedings had been issued pending hearing and determination of the High Court matter. 17.Court fixed a mention for 26th November, 2024 for parties to update court. On 26th November, 2024, status que remained the same as this court was still barred by the stay order. Appeal Ruling was eventually delivered on 12th March, 2025. The import of the Appeal Ruling was that the appellate court determined that there was no proof of bias on the part of the court. That the allegation of bias was baseless. That the fact that a court makes an undesirable finding against a party does not make the court bias. That the court properly dismissed the applications. High Court directed that the matter continues before this court. Lastly, High Court struck out Application dated 7th June, 2024. 18.Fast forward, court was faced with the DNA question. Parties agreed to proceed for DNA. On 2nd September, 2025, court received the DNA results. Samples tested included M. A. J. O, N. H. J. H, H. I. M. S and Z. M. A. I – Baby Z. The findings were that Z. M. A. I is a biological sibling to M. A. J. O and N. H. J. H. Further that Z. M. A. I is a half biological sibling to H. I. M. S. On 23rd September, 2025, court undertook a pre-trial, parties confirmed compliance and a Hearing was fixed for 14th October, 2025. As at close of pleadings, the prayers by parties were as follows. 19.Vide Plaint dated 1st August, 2024, Plaintiff prayed for:a.A custody order vesting the legal custody, actual care and control of the minor upon the Plaintiff.b.The Plaintiff be granted legal guardianship of the minor baby Z. I.c.Costs of the suit.d.Any other relief that thus honourable court may deem fit. 20.The 1st Defendant filed a defence /Counterclaim and Application dated 18th June 2024 (in E 006 of 2024) praying for:a.That the 1st Defendant/counter Claimer be granted the legal and physical custody of Baby Salma/R. M. M in the best interest of the minor.b.That HHA Applicant/Foster parent herein be allowed to be the guardian of Baby Salma (Minor) a child aged 8 years.c.A declaration that, the Plaintiff/Respondent, her agents, servants, relatives and/or any other person claiming through her, be restrained by way of permanent injunction from interfering in any way with the custody, both legal and physical of baby Salma/R. M. M.d.A declaration that Baby Salma/R. M. M is not one and the same person with Baby Z. M. A. I.e.Costs of this suit and interest thereof.f.Any other relief that the Honourable Court may deem fit and just to grant. 21.Vide defence dated 15th September, 2025, the 2nd and 3rd Defendants prayed for:-a.A care order vesting the 1st Defendant legal custody, care and control of the subject minor.b.The 1st Defendant be granted legal guardianship of the subject minor.c.Costs of this suit. 22.On 5th December, 2025, Counsel Mrs Odiya prayed that parties proceed for mediation. Court granted parties time to proceed for mediation. On 13th January, 2026, parties reported back to court that mediation failed. Defendants informed court that their views were never considered and that the minor’s views were too never considered. In essence, the mediation exercise was skewed. Mediation having failed, a Hearing dated was fixed. 23.Hearing began on 6th February, 2026, by consent of parties, court heard from the minor – Baby Z. Importantly, disputes arose immediately after the Plaintiff’s counsel had asked their questions, when the Defendants started asking their questions, Plaintiff’s advocates raised concerns when Baby Z responded to counsel Wanyoike’s question and categorically stated that she wished to continue staying with the 1st Defendant as her mother. Parties by consent requested that court asks the minor questions in the presence of court assistants and security. Counsel by consent agreed that parties and advocates vacate chambers and allow court to interact with the minor. 24.With advocates and other interested parties having vacated court, court interacted with Baby Z at length. Importantly, Baby Z was fully aware of the nature of the case that the Plaintiff came to court to claim her back. Baby Z from the onset was categorical that she did not want the Plaintiff and that she cannot leave her mother HH (1st Defendant). She reiterated that her mother and father are HH and Mohamed Melele respectively. That the father and mother have been providing all her needs and that she would not wish to try stay with the Plaintiff – K. That she was comfortable with 1st Defendant and would not wish to go anywhere else. That no matter what court says, she will not stay with the Plaintiff – K. Baby Z proceeded to inform court about her wishes to become a doctor as her sister. She equally informed court about her sisters and their study. Lastly, she informed court that she has no complaints against her mother and father – Mrs. H and MM. 25.On 17th March, 2026, the Plaintiff’s counsel again moved the goal posts. Noting what the child said during her court session, Plaintiff’s advocates disputed the testimony notwithstanding the fact that the testimony by Baby Z was by consent of parties. Now it was there prayer that the child be examined again in the presence of advocates. With the history of this matter at hand i.e the attempted bribery, the threats to Judicial Service Commission, the application for recusal, the dismissal of the application for recusal, the High Court upholding of the decision not to recuse and the numerous online bullying by Plaintiff’s counsel, this court ruled to recall the minor for examination by court in the presence of the advocates. 26.With the above in mind, hearing took place on 6th February, 2026 and on 4th June, 2026. On 4th June, 2026 parties were directed to file submissions. Plaintiff filed submissions dated 19th June, 2026, 1st Defendant filed submission dated 30th June 2026 and 2 and 3 Defendants filed submissions dated 24th June, 2026. Plaintiff’s case 27.PW 1 Mr. OMA testified on 6th February, 2026, he relied on his witness statement dated 1st August, 2024. It was his testimony that Baby Z is his niece and a daughter to the late sister Mrs. SM. He informed court that S died on 17th February, 2019 due to mental illness and tuberculosis. Unfortunately, noting was ever filed to confirm that S had mental illness. A look at the documents filed by Plaintiff confirm that Mrs S had tuberculosis and as late as 2019, documents show that she was visiting hospital for tuberculosis treatment. 28.As per PW 1, her sister lost her child in 2018 and their efforts to trace the child did not bear fruits. That they eventually received information that the child was taken to the Children officer Wajir and discovered that the child resided with 1st Defendant. 29.During cross examination, PW 1 informed court that SM travelled back to Wajir with Baby Z when Baby Z was 8 months old. As per PW 1, he simply heard that the child was stolen when S was walking heading to Chief M’s home. Court takes note that PW 1 never availed any proof that him or the family reported the alleged theft of the baby by Chief M or any other person. 30.Further, PW 1 informed court that according to him, their minor was born on 25th November, 2017. 31.PW 2 Mr. K Mustafa Salat testified on the same day. She relied on her witness statement and further witness statement dated 12th January, 2026. She further relied on the list of documents dated 1st August, 2024, further list of documents and supplementary list of documents all produced as exhibits 1 to 16. It was her testimony that Baby Z shares the same mother with the other children whose DNA were compared. 32.Regarding her relationship with S, PW 2 informed court that S is her aunt’s daughter. That S used to stay in Mombasa where she gave birth to Baby Z on 25th November, 2017 and travelled back to Wajir when the child was 6 months old. Contrary to position held by PW 1, PW 2 testified that S lost the baby when she had gone to Dunia. That they reported the matter to police but were not assisted until 2024 when the minor was 8 years old. Important to note is that nothing was filed to confirm any report made to the police or actions taken by Plaintiff – PW 2 from 2017 to 2024. 33.During cross examination PW 2 informed court that when the family missed the child in 2017, they reported the matter to the chief. Nothing was filed to substantiate the report made to the chief or action take. It should also be noted that as per Plaintiff’s documents (birth certificate), the minor was born on 25th November, 2017, 8 months after Baby Z was rescued. That they eventually reported the matter to DCI in 2024. As per PW 2, it is Dunia who took the baby and handed her over to the children office. 34.When asked about their birth certificate, PW 2 confirmed that the birth certificate was prepared on 18th June 2024, months after the case had been filed and at least 7 years after the minor was rescued. 35.Importantly, during re-examination, PW 2 informed court that they don’t know the father to Baby Z. 36.PW 3 was Mr. FO, he testified on the same day. He relied on his statement dated 1st August, 2024. He informed court that he shares a mother with Baby Z but have different fathers. That Baby Z is her step sister who was born on 25th November, 2017 by Mrs. SM. As per PW 3, when they reported the matter to police, they were told that there was no need for an OB number. That from 2018 to 2024, they did not receive any assistance. That it is only in 2024 when DCI Wajir assisted them. 37.During re-examination, PW 3 reiterated that they don’t know the father to the minor herein. That they are however relying on the DNA report. 38.PW 4 Mr. AOM testified on the same day, he relied on the witness statement dated 12th January, 2026. He informed court that Plaintiff is his aunty. As per PW 4, it is Dunia who took Baby Z from the mother and gave her away, he therefore prayed that the child be given back to them. He too clarified that Dunia is one of their family members. That though a family member, she gave out the child. That even though Dunia stole the baby and gave her out, they never reported the matter to the police. 39.During cross examination, PW 4 denied that the family abandoned Baby Z. 40.Hearing proceeded on 4th June, 2026. This was after court had delivered a ruling dated 12th May, 2026 recalling the minor for examination in the presence of the advocates. 41.The minor was fully aware of where she was, she could identify the police station and the court. She was aware of the work done by the police and the court. She also understood the need for a court. She informed court that the work of court is to hear people who are brought to court and know the truth. She promised to say the truth and noted that those who lie are taken to police cell. 42.Baby Z identified herself as R. M and informed court that her mother gave her the said name. She proceeded to inform court that her mother is Mrs. HH – 1st Defendant and her father is Mr. MM. 43.She confirmed that she goes to school at Hothan Primary school and that she is currently in grade 3. She emphasised that it is her mother 1st Defendant who took her to school. She confirmed that she loves school and that she learns Kiswahili, Math, English, Environmental, Hygiene, Art and craft and IRE. Baby Z elaborated on Hygiene and told court about what they study and her teacher for Hygiene. She then insisted that she would not wish to change her school, that she wishes to continue studying in the same school and would not accept to change school even if court directed her to change school. 44.Baby Z informed court that 1st Defendant cooks for them food and that she has too been taught how to cook pasta. She took time to explain how to cook pasta and that one can eat pasta with soup. She further elaborated how to cook rice and that rice is best to eat with meat. 45.She further elaborated the activities carried out during Idi, what they ate and that 1st Defendant bought all the food during Idi. 46.When asked about her home, she explained where she stays, confirmed that she can go home alone but she wishes to go with her mother – 1st Defendant. 47.Familywise, she informed court about her family members and her siblings to include Sabrin, Abdia, Uba, Ruweitha and Abdiaziz. She emphasised that their mother is Mrs. HH (1st Defendant) and their father Mr. MM. She took time to explain about her siblings as listed above. When asked about F and OM, she informed court that she does not know them. That she does not know of any other brother or sister except the ones she listed. 48.She was further emphatic that she did not wish to know the other brothers and sisters who are claiming her. She requested court not to direct that she gets to know the other brother and sister. That though she respects court, she does not want to be directed to know the other brother and sister. That even if they want to know her, she is not interested in knowing them. 49.She further informed court about where she stays. She clarified that where she stays, she is never abused, she is never neglected, she is never harmed in any way and that there is nothing in her current home that she could ask court to change. That in her current home, everything is ok and she cannot change anything. 50.Regarding school, she informed court that whenever she is given homework, she does the work and is assisted with her sister Sabrim who is in grade 9. Regarding her dreams, she informed court that she wishes to be a nurse like her auntie’s daughter. 51.Regarding the case, she confirmed that she knows the case is about her, that some people are claiming that she is their child. She was emphatic that those people should leave her alone. That even if she is their child, she will not go to live with them. That even if court orders, she will not go to stay with the Plaintiff. 52.Regarding medication, she informed court that when she falls sick, her mother and father take her to the hospital called shelete nursing home. She proceeded to inform court that the previous day, she had a head ache and stomach ache, that the father and mother took her to shelete nursing home where she was treated. 53.Regarding her religion, she informed court that she is a Muslim and that she loves Islam. That Islam instructs her to love one another. That though Islam says she loves others, she does not love the Plaintiff – K. 54.In her parting shot, she requested that the people asking for her to leave her alone. She prayed that court orders them to leave her alone. That she wishes to remain with mother and father Mrs. HH and Mr. M respectively as she loves them. 55.PW 6 Mr Zainab Chizi Ndearo testified on the same day. She relied on her statement dated 1st August, 2024. She informed court that she is a midwife and sometime in 2017, she used to work at Mrima Health Centre within Mombasa. She informed court that she knows the minor herein and her mother SM as she was the midwife who attended to S when the minor was born. Importantly, PW 6 confirmed that as at the time S was giving birth to the minor, she was mentally fit and even instructed her to name the minor after PW 6 as they were close friends. PW 6 relied on the documents as filed and in specific the birth certificate. 56.She further told court that she is the one who processed the birth certificate for the minor herein. (Court notes that the birth certificate was processed in 2024 after Plaintiff filed her pleadings and over 7 years after the minor was rescued). That she was called by relatives of SM who asked her for assistance in processing the birth certificate for the minor. That the relatives simply sent her S’s death certificate and a letter from police. 57.That she visited her area chief at Mutongwe who assisted her by writing a letter approving that she needs a birth certificate. That she received an acknowledgment letter at Murima health centre. As per PW 6, the minor herein was born on 25th November, 2017. That the birth certificate as filed belongs to the minor herein and that the child is called Z……... 58.During cross examination, PW 6 was unable to explain how the minor was rescued in Wajir on 4th April, 2017 yet the birth certificate PW 6 relied on says the minor was born on 25th November, 2017. When asked about the minor’s father, PW 6 informed court that S had several husbands and that the father to the minor was overpowered by drugs. It was clear that the father to the minor had never been in the life of the minor. 59.During re-examination, PW 6 informed court that the birth certificate she was relying on was not forged. She further clarified that she does not know fathers to children who were born in their facility. Is it possible then that she knows Baby Z’s father noting that PW 6 confirmed that S had several husbands? Court takes judicial notice that conception is almost always a private matter and a midwife cannot with certainty identify the father to a child when she clearly informed court that S had several husbands. 1st Defendant’s case. 60.DW 1 Mrs. HHA testified on the same day, she informed court that she is a business lady who stays at Bula hothan. She confirmed to have filed a defence and a counter-claim. She informed court that she has been with the minor in question since when the minor was 7 months old. She from the onset prayed that she be allowed actual custody of the minor until Baby Z matures. 61.She relied on her statement dated 15th August, 2024 and the documents filed. She produced the OB 13/19/5/2017 and informed court that it confirms the date she was given the child at the police station. Further, she relied on a protection and care dated 29th May, 2017 which she informed court that it was prepared by the children office and concerned Baby Z. 62.With reference to birth certificate, she informed court that she needed Baby Z to join school and to be registered under NHIF medical scheme, she therefore had to prepared birth certificate for the child. That she went to the area chief and told him about the child. DW 1 produced the birth certificate which was registered on 28th June, 2017 and issued on 11th July, 2017. 63.Concerning the minor’s education, she produced school documents and confirmed that Baby Z was enrolled to school and is currently in grade 3. She equally produced the minor’s report forms and presented them as her exhibit together with her other documents. 64.She further informed court that she has been with the minor Baby Z since her childhood and raised her ever since. She prayed that she be allowed to take care of the child. She questioned Plaintiff’s actions of staying silent for 10 years and only to show up 10 years later to ask for the child. She reiterated that she received the child when she was 7 months old and has stayed with her until now when she is 10 years old. She clarified that she has other children, her brother’s children who live with her. She named them to include Sabrina 16 year [F], Abdiaziz 19 years [M], Uber 24 years [F], Abdia 22 year [F]. She clarified that she equally stayed with the children since when they were 1 year old. 65.Education wise, she informed court that all the children are studying, Abdiaziz is in secondary school form 3 and Ruweitha is in grade 6. 66.She was concerned that Plaintiff and the family never asked for the minor when she was young. That they are only showing up now. She confirmed that she did not know about the Plaintiff but only came to know about her when the case started. 67.During cross examination, she informed court that she is married to M. That in her house, she has 5 children. That she never gave birth but has taken care of all the 5 children as her children. Regarding Baby Z, she informed court that she has been fostering her since 19th May, 2017 when the child had been abandoned. 68.Regarding chief M, DW 1 informed court that she does not know him and further that she does not know the chief’s wife. That she simply received a phone call from children officer Mr. Mwangi who instructed her to go to the police station. At the police station, she found PC Fardowsa who had the child. That she was then given the child Baby Z. 69.She reiterated that processing of the birth certificate was to cater for the minor’s schooling and medical care under NHIF which required one to have a birth certificate. She confirmed that she was never given permission by police or court to prepare a birth certificate. She reiterated that processing of the birth certificate was in the best interest of the minor. She reminded court that the child had been dumped, she took up the opportunity to assist her since her childhood. She further clarified that she did not know where the minor had come from but since she had requested to be given any child in need of care, she was contacted when Baby Z was found dumped. She further clarified, that the child was handed over to her by Mr. Mwangi and not Feizal – 2nd Defendant. 70.She too informed court that she pays for minor’s dugsi and school fee. She equally buys food and cloths for the minor and takes care of all Baby Z’s needs since 2017. That since 2017, no one ever approached her to ask for the child. 71.During re-examination, she reiterated that she was simply called to the police station where she found PC Fardosa and Mr. Mwangi. That she was then given the child to care for. That as at the time she was being given the minor, DW 1’s husband was not present, that she was allowed to foster the child. 72.That ever since she received the minor, she never stopped anyone from seeing her and had no intention of stopping anyone. This notwithstanding, no one ever visited the minor. She further reiterated that she had no relationship with Chief M and the wife, that she only received the child as she had informed the children office that she was willing to take care of a child in need of protection and care. With this in mind, she was contacted by PC Fardosa and Mr. Mwangi when they received a child in need of care and protection. This is how she ended up receiving the minor. 73.DW 2 Billow Barut Kheira testified on the same date. She relied on her witness statement dated 15th August, 2024. She informed court that 1st Defendant is her neighbour and she is married to MMA and that DW 1 has 2 other children U MM and SMM. 74.As a neighbour, she confirmed that a child was rescued in 2017 by the children office having been abandoned by unknown person at Barwaqo location. That Mrs. H volunteered to take care of the abandoned child. That she further enrolled the minor to school at Hotham Primary school where she is currently studying. She further confirmed that the relationship between DW 1 and the child is very cordial to an extent that a person cannot distinguish that Mrs H is not the minor’s biological mother. She too informed court that all along, the children office has been visiting DW 1 for purposes of monitoring the wellbeing of the child. As a resident, she confirmed that no one ever claimed the minor until recently when Plaintiff filed the case. 75.During cross examination, she informed court that she did not know K and Sofia Mohamed. She equally informed court about the other children DW 1 is taking care of and that DW 1 has never given birth to any child but has been taking care of the children. Lastly, she confirmed that the relationship between DW 1 and the minor is very good and that DW 1 has taken good care of the child since when she was handed over to her. 2nd and 3rd Defendant’s case 76.DW 4 Mr. Feisal Dahir testified on the same date. He informed court that he is the principle children coordinator Wajir East. He relied on his witness statement and list of documents dated 17th September, 2025. 77.He informed court that on 4th April, 2017, he received a distress call from his colleague Mr. Gilbert Mwangi. Mwangi informed him that a girl age 7 to 8 months had been abandoned at barwaho within town outside the chief’s residence. 78.DW 4 confirmed that he was not in the office on the said day but when the child was rescued, his colleague Mr. Mwangi received the child after she was presented to police by area chief. That the police and chief were aware of the child being abandoned on 4th April, 2017, that having been briefed, the minor was placed to a foster parent within Wajir as Wajir has no safe house/ children rescue centre for abandoned children. That this was in the best interest of the child. That ever since the child was handed over to DW 1, she has stayed with the child to date. That in 2024, the Plaintiff showed up claiming the child. All along from 2017, no person ever approached the children office to claim the minor. 79.Equally, DW 4 informed court that no person ever reported to be searching for the child herein from the date of abandonment. Further, no report was ever lodged at the children office or at Wajir police station regarding a missing child. Lastly that the children office never received any police occurrence book extract or abstract declaring the minor herein as missing. With this in mind, the child was placed in the custody of DW 1 and has stayed with DW 1 since she was 7 months to date. 80.During cross examination, DW 4 informed court that children officer is allowed to give a name to a child e.g Baby Salma or Baby Kamau. That when the minor herein was abandoned, she was rescued, Mwangi was informed who then proceeded to undertake a pre-placement and placed the child with DW 1. He relied on assessment dated 29th May, 2017 which guided on pre-placement. He too relied on a foster placement report as filed. 81.DW 4 further informed court that when the minor was rescued, she was in a pathetic state; she was malnourished. Due to her state, they took her to hospital and thereafter prepared a foster mother to take care of her as Wajir has no children rescue centre. 82.DW 4 informed court that he filed 2 applications a foster application and a guardianship application. That court allowed DW 1 to continue staying with the child pending the determination of the case. DW 4 confirmed to have read the High Court ruling but reiterated that Section 104 [Where an application for a custody order in respect of a child made by the person with whom the child has, at the time the application is made, had his home for a period, whether continuous or not, of three years, no person shall be entitled, against the will of the applicant, to remove the child from the applicant’s custody without leave of the Court.] of the Children’s Act directs that a child cannot be removed from where she has called home unless there is a court intervention. 83.Regarding foster, he informed court that they normally carry out assessments and pre-placement and that they ensure they supervise the foster mothers. He referred court to Section 171 of the Children Act which guides that:-“foster care" includes—a.placement of a child in foster care on short term basis for a period not exceeding three years. 84.With the above provision in mind, DW 4 informed court that the minor had been with the foster mother for 8 years having been placed in 2017. 85.Regarding the minor’s father, DW 4 equally did not know the minor’s father. 86.As to why DW 1 was considered for the foster care, DW 4 informed court that DW 1 had requested to be considered whenever a child in need of care was available. That she was assessed for foster care and was found fit. That her placement was after home visits and background checks were conducted and that since Wajir has no children rescue centre, the minor was entrusted to DW 1. 87.With regards to Plaintiff, DW 4 informed court that they reported about missing child after 8 years. That this was after DW 1 was entrusted with the minor. That for the 8 years, he had been supervising DW 1 and from his observation, Baby Z is comfortable to stay with DW 1. Further, DW 4 informed court that noting the supervision he has been carrying out with reference to DW 1, in terms of suitability, he finds DW 1 to be suitable to be granted guardianship of the minor herein as she has priority after the parents. 88.DW 5 Mr. Gilbert Mwangi testified on the same day. He relied on his statement dated 23rd May 2024. He informed court that on 4th April, 2017, he was in the office when the minor herein was presented to the Wajir police station. That he was called by PC Fardosa officer in charge of the gender desk who informed her about the abandoned child. DW 5 informed court that he tried reaching out to homes which accommodate abandoned children but with no avail. He reached out to Wajir Girls town centre and institution run by Catholic church, unfortunately, he was not successful. The institutions could not accommodate the minor due to her tender age and that they did not have capacity to manage the child. 89.When the child could not be accommodated at the catholic church, DW 5 consulted with Mr. Feisal and agreed to invite DW 1 who had requested to be considered in case of need for protection and care of a child. 90.During cross examination, DW 5 informed court that he was called on 4th April 2017 and informed about the abandoned child. That when he went to the police station, he found Barwako chief. That is when the child was handed over to him and eventually handed over to DW 1 who had shown interest in fostering children in need of care and protection. 91.DW 6 Mr Said Ahmed M testified on the same date. He informed court that he is the one who found the abandoned child outside his house at around 11pm next to Masjid Huda area township location Wajir. That when he was about to enter his house, he heard the cry of a baby, he looked around and found the abandoned child on the floor. He found the child crying, since it was late, he could not report the matter to the police station. He therefore stayed with the child and gave her milk. That the next morning, he reported the matter to police, handed over the child to the police gender desk - PC Fardosa, recorded a statement and left the issue to the police to handle. 92.In DW 6’s estimation, the child was 7 to 8 months old when she was abandoned. 93.During cross examination, DW 6 confirmed that he is currently the chief at Burmayo Kutulo sub-county. That when he rescued the minor, she cried all night and DW 6 was not even able to sleep that night. He denied any knowledge or relationship with DW 1’s husband Mr. M. He clarified that nobody ever claimed the child, that neighbours visited but never claimed the child. 94.DW 7 SGT Fardosa Yusuf testified on the same day. She informed court that on the material day 4th April, 2017, she was at the gender office when a male adult – DW 6 visited and handed over the abandoned child. 95.DW 7 equally confirmed that the child was about 7 to 8 months old when abandoned. DW 7 then contacted the children office who arrived. That the child was then taken to hospital at the Wajir referral Hospital because of his condition – she was malnourished and generally not well health wise. 96.During cross examination, he reiterated that the minor had been abandoned. That she was rescued by DW 6 - a chief, who brought her to the police station. 97.When asked about the OB entry, she confirmed that the station made a late entry due to the urgency of the matter considering that the child required medical attention. To the station, the priority was the child’s health and not to make an occurrence book entry. That when they settled the medical issues, they made the late report in the occurrence book hence 13/19/5/2017 – 9:01am. Equally that they were waiting for any follow up from any parent or relatives before making the entry. 98.DW 7 then confirmed that she handed over the child to Mr. Mwangi. This was after confirming that no one was following up on the child. 99.During cross examination, DW 7 informed court that the standard procedure is that in case of a vulnerable child, officers are expected to ensure the child receives treatment first then make OB entry later. This guided them to ensure the medical needs are settled before an OB entry was made. 100.Importantly, DW 7 confirmed that Plaintiff – K never visited the station to claim ownership of the baby, that ever since the recovery of the baby up to 2025 when she left Wajir police station, no report was ever made of any mistreatment of the minor by Mrs. H. Regarding H, DW 7 informed court that she did not know her before the incident and had never met her before. 101.Defendants thereafter closed their case, parties filed submissions. 102.Court has considered all the pleadings, documents, testimony, submissions and parties’ demeanour. Issues For Determination 103.This case is a clear demonstration of the maxim Vigilantibus non dormientibus jura subveniunt. There is no doubt that the law assists those who are vigilant, not those who sleep on their rights. Vigilance is the price we pay. Had parties herein been vigilant, the story would have been different. 104.The High Court in the case of Watuku v Principal Secretary Ministry of Health (Petition E129 of 2021) [2023] KEELRC 1388 (KLR) (31 May 2023) held as follows.The doctrine is based on the latin maxim, ‘’ vigilantibus non dormientibus, jura subveniunt,’’ [ the law will not help those who sleep on their rights]. The principle recognizes that an adversary can lose evidence, witnesses and fair chance to defend oneself, after a long passage of time, from the date the cause of action arose. Article 50 [1] of the Constitution grants every person the right to have any dispute, that can be resolved by the application of the law, decided in a fair and public hearing before a Court, or if appropriate, another independent and impartial tribunal. There was inordinate delay in presentation of the Petition. 105.Parties and litigants should know that there is a general principle of law that law protects the diligent and vigilant litigants. That even with a legal right, delay in exercising once rights will definitely defeat equity. It goes without saying that active pursuit of one’s rights requires that a party whose rights have been infringed must move with reasonable diligence to seek a remedy. Whereas in other civil cases delay would result in laches, in the case at hand delay results in the child establishing a farm relationship with their caregivers. Noting the law is crafted in good faith for the betterment of the society, delay at times is a hindrance not only to justice but implementation of rights. It is not lost to this court how embarrassing children cases end up when a child blanketly refuses to abide by court directives and insist on staying with one parent notwithstanding a court order. Of course, the child cannot be blamed and by no means can law compel the said child to act in one way or the other. Court is activated by conscience, good faith, and reasonable diligence; where these are absent, the court remains passive. 106.The delay caused by parties herein has with no doubt led to self-inflicted prejudice and acquiescence. In such a case, it is unfortunate and as guided by the case of Mwangi & another v Koske alias Rosemary Chepkorir Kosgei [2026] KEHC 3881 (KLR), delay may be considered evidence of acquiescence, where the plaintiff's inaction suggests they have accepted the breach and are willing to live with the consequences therein. 107.If only the parties took immediate action with reference to Baby Z, we would not be here. But claiming a child 8 years down the line!!!!! To claim a child who has known one person as her mother, is not only acquiescence but self-inflicted prejudice. This court was not surprised when Baby Z was recalled by the Plaintiff hoping that she would change her responses. Unfortunately, that golden question that no one wanted to ask is the same question that she eagerly waited for and hammered it without mercy. I have no doubt in my mind that even if Baby Z is to be asked the same question in the middle of her sleep, she will not hesitate to give a resounding answer as to who she would wish to stay with. This unfortunately is as a result of delay and acquiescence, a self-inflicted prejudice. Be as it may, this court considered all aspects of facts, law and precedents. 108.From the forgoing, issues for determination are as follows.a.Fraud.b.Whether Baby Salma/R. M. M is one and the same person with Baby Z. M. A. I.c.Foster care.d.Guardianship - Parens patriae. (state and court) and Paternalism.e.Costs. Analysis And Finding Fraud 109.From the onset, it is vital that the question of misrepresentation, fraud, breach of trust, wilful default or undue influence be determined. Time and again the Plaintiff insinuated the role played by Officer M. It is therefore important that the question of fraud be determine before court delves on the other legal issues. 110.Civil Procedure Rules Order 2, Rule 4 and Order 2, Rule 10 provides that:-Matters which must be specifically pleaded:(1)A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—Particulars of pleading [Order 2, rule 10]Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—a.particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; andb.where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. 111.The Court of Appeal in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR) had the opportunity to deliberate on issue concerning fraud. Court held.52.According to Black’s Law Dictionary,“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”….53.It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition at page 427:“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308).The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence V Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (|Davy V Garrett (1878) 7 ch.D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount o an averment of fraud of which any court ought to take notice”.See Insurance Company of East Africa vs. The Attorney General&3 OthersHccc135/1998. 112.Did the Plaintiff ever plead and particularized misrepresentation, fraud, breach of trust, wilful default or undue influence? Not at all. The Plaintiff K at no time pleaded and particularised any fraudulent activity that led to Baby Z being handed over to 1st Defendant. There was no pleading and particulars consisting of some deceitful practice by 1st Defendant, 2nd Defendant and Mr. M. The Plaintiff at no given time pleaded any wilful device that resorted to deprive her of her right, or in some manner to do her an injury or disposes her Baby Z. 113.There was no pleading and particularization of any design by the Defendants to obtain some unjust advantage against the Plaintiff or Baby Z, or to cause an inconvenience or loss to the Plaintiff or Baby Z, 114.The Plaintiff never pleaded and particularized any acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to her or Baby Z, or by which an undue and unconscientious advantage is taken of the Plaintiff or Baby Z. 115.In essence, by law a party is expected to plead and particularize fraud, misrepresentation, breach of trust, wilful default or undue influence. The Pleading must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of. In our case, fraud, misrepresentation, breach of trust, wilful default or undue influence were never pleaded and particularized by parties. It however was brought in during trial that Officer M and Dunia had a fraudulent hand in taking Baby Z from her mother and handing her over to 1st Defendant. The Plaintiff insinuated that since Officer M is married to 1st Defendant and that he used to work at Wajir Police station as at the time Baby Z was rescued, that he had a hand in having the child handed over to 1st Defendant. From the onset, this was not pleaded and particularized, this therefore cannot cloud court’s judgment. This court is guided that as elaborated above concerning fraud, it is trite law that if fraud is not strictly and clearly pleaded, particularized and proven, relief cannot be granted in reliance to fraud – See Mowatt v Blake [1858] 31 L.T.O.S. 116.It is this court’s finding that fraud, misrepresentation, breach of trust, wilful default or undue influence were never pleaded and never particularized. The Plaintiff can therefore not rely on any aspect of fraud, misrepresentation, breach of trust, wilful default or undue influence. Whether Baby Salma/R. M. M is one and the same person with Baby Z. M. A. I. 117.Over and above the question of fraud, another preliminary issue and prayer by parties is determination of whether Baby Salma/R. M. M is one and the same person as Baby Z. M. A. I. 118.It was Plaintiff’s case that the minor is called Z. M. A. I, the Plaintiff relied on the birth certificate issued on 18th June, 2024. To challenge this position, cross examination informed court that the birth certificate presented by the Plaintiff was processed and issued on 18th June, 2024, one month after the case herein started in 2024. As per the Plaintiff’s birth certificate, the minor’s date of birth is 25th November, 2017. 119.On the other hand, the 1st Defendant – Mrs. HHA presented her case and relied on the birth certificate processed and issued on 11th July, 2017. As per this birth certificate, the 1st Defendant’s case was that the minor is called R. M. M. A. As per the 1st Defendant, the minor’s date of birth was 5th October, 2016. The testimony and exhibits relied upon by the Defendants is that the minor was abandoned on 3rd April, 2017 and rescued on 3rd of April, 2017, to this effect the Defendants relied on the occurrence book extract OB 13/19/5/2017 which was never controverted that the rescue of the minor was reported to the police and documented vide OB 13/19/5/2017. As per the said OB extract, it is uncontroverted that the minor’s case was reported to the police station on 4th April, 2017. 120.Again, equitable maxim comes to our rescue, equity provides that where equities are equal, the first in time prevails. The Court of Appeal reiterated this position in the case of Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] KECA 457 (KLR) that:-My understanding is therefore that the title given to Gitwany in the first instance and which I have held to be absolute and indefeasible as regards the suit land is the earlier grant and in the words of the Court of Appeal in Wreck Motors Enterprises vs. commissioner of Lands, C.A. No. 71/1997 (unreported)” – is the “grant [that] takes priority. The land is alienated already.” This decision was gain upheld in Faraj Maharus vs. J.B. Martin glass Industries and 3 others C.A 130/2003 (unreported). Like equity keeps teaching us, the first in time prevails so that in the event such as this one where, by a mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel for land, then if both are apparently and in the fact to them, issued regularly and procedurally without fraud save for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity…. 121.In our case we have two birth certificates linked to the same person. There is no evidence to confirm that the registering officers Mr. F.A Abubakar (as per plaintiff’s birth certificate) and Mr. O.N Mwanthi (as per 1st Defendant) were involved in any fraud. As fate would have it, Mr. Mwanthi acted without knowledge that Mr. Abubakar would one date process another birth certificate. There is equally no proof of any fraudulent activity on the part of Mr. Abubakar as he simply processed the birth certificate totally unaware that there existed another birth certificate. It is not disputed that both birth certificates were issued regularly and procedurally without fraud save for the mistake of issuing a birth certificate where one already exists. With this in mind, Court of Appeal guides that the first in time must prevail as without cancellation of the first birth certificate, the first birth certificate retains its sanctity. There is no prove whatsoever that the 1st Defendant’s birth certificate was ever cancelled, it therefore remains valid and as equity holds, the first in time prevails. Besides, the minor has known herself as R.M.M.A for over 8 years, all her other documents call her the same. It would be of great harm if changes would be made to her name. 122.Consequently, it is this court’s finding that the birth certificate presented by the 1st Defendant, processed and issued on 11th July, 2017 prevails and is the valid birth certificate of the minor herein. As per the birth certificate, the minor is called R. M. M. A. 123.With reference to the names, PW 6 Mr Zainab Chizi Ndearo testified that she was the midwife who assisted Mrs S to give birth. PW 6 equally informed court that she was requested by Plaintiff’s family to process the minor’s birth certificate in 2024. Court therefore takes judicial notice that as at the time PW 6 was processing the birth certificate in 2024, S was not alive to name the minor and the father. With this in mind, the name given to the minor simply was not from the minor’s mother but was from PW 6. As per her statement, she named the minor Z. M. A. I. 124.Question therefore is whether it was possible for S to give birth immediately after giving birth to R. M. M. A? Section 60(1)(m) of Evidence Act provide that the court shall take judicial notice of the ordinary course of nature. Further Section 59 of the Evidence Act provides that fact of which the court shall take judicial notice need not be proven. This court take judicial notice that gestation period of a human being is 9 months and that the local community approves conception 40 days after giving birth. With these judicial notice in mind, and noting that as per 1st Defendant the minor was born on 5th October, 2016. 40 days after 5th October, 2016 is 15th November 2016. If S conceived on 1st December, 2016 and the gestation period of a human being is 9 months, then she must have given birth to Baby Z’s sibling on or about 1st August, 2017. This presumption tells us that it was possible for Mrs. SM Abdi to give birth to another baby after Baby Z. As at the rescue of Baby Z however, she was 8 months old and it was on 4th April 2017. Whereas our presumption tells us that the earliest S would give birth after Baby Z was on 1st of August, 2017, it is technically impossible for a baby born on 1st August 2017 to be 8 months as of 4th April, 2017. Conclusively therefore, it is technically impossible that S gave birth to any other child immediately after Baby Z. Therefore, over and above the first in time prevails maxim, it was biologically impossible to have another child born on 25th November, 2017 with the same attributes, character background story and one who was rescued on 4th April, 2017. On a balance of probabilities, birth certificate issued on 18th June, 2024 is erroneous, null and void as it is not in tandem with the facts of the case. Consequently, Z. M. A. I as presented in the Plaintiff’s birth certificate is inexistent. Equally, the question as to whether R. M. M is one and the same person with Baby Z. M. A. I is an academic question as Z. M. A. I is inexistent. The question is purely theoretical and hypothetical. Equally, Section 98 of the Evidence Act guide on parole rule that no extrinsic evidence shall be admissible to add or to subtract from the contents of the written documents. In essence, the birth certificate by the 1st Defendant (the written document) is the valid birth certificate which names the minor R. M. M. A, the name Z. M. A. I is extrinsic evidence that is not admissible to contradict the name R. M. M. A as it appears in the 1st Defendant’s birth certificate. See Too v Orchardson [2022] KEELC 12578 (KLR). 125.It is however not lost to this court that as per the DNA results Z. M. A. I ( R. M. M. A) is a biological sibling to MAJO and NHJH children under the custody of the Plaintiff herein. 126.In the end, as to whether Z. M. A. I is one and the same person as R. M. M. A, this court finds this to be an academic question. Z. M. A. I is inexistent, the name only occurred due to the processing of the birth certificate. R. M. M. A is however the minor in question related to MAJO and NHJH. Foster care 127.Court highlighted the prayers made by parties, in E 036 of 2024, it is clear that there was no prayer for foster care in both the Plaintiff and the counter claim. 128.In E 006 OF 2024, court is aware that there exists an application for foster care dated 29th May 2017. In this application, the 1st Defendant Mrs. HHA made an application for Baby Z. Court is also aware that Mrs. HH has had custody of the minor since the said Application dated 29th May, 2017. As to whether there is an express court order allowing the foster application with reference to the Application dated 29th May, 2017, this was not proven but court is aware that Mrs. HH has had the actual custody of the minor since 2017 when Baby Z was rescued, this remains uncontroverted. This Court is bound by maxims of equity. In specific, equity looks to the intent rather than to the form. Clearly, the intent of the Application dated 29th May, 2017 was for Mrs. H to be granted foster care of the minor herein. The spirit of the application was that Baby Z receive’s foster care, the letter of the law however anticipated that an express order be granted allowing foster care. It is also not disputed that 1st Defendant has had foster care for 10 years now. This court is guided by the case of Sophia House Ltd v Barclays Bank of Kenya Ltd [2005] KEHC 2532 (KLR) where the High Court applied the maxim of equity as follows:It is prudent to remember at this juncture that equity looks to the intent rather than the form. As a court of equity, and looking at the substance rather than the form, I am satisfied that the charge in issue does not distort in any way the meaning and effect of Forms J (1) and J (2). The deviation from those forms does not affect their substance and is such as is allowed both under S.72 of the Interpretation and General Provisions Act as well as under S.33 (1) of the Registration of Titles Act itself. 129.From the foregoing, court notes that, equity looks at intent rather than form. It looks at the substance of the transaction rather than its form. It is not disputed that notwithstanding lack of express order for foster care, the intent was fulfilled and the 1st Defendant has this far had custody of the minor for 10 years. To this end, there is no pending Application for extension of foster care. Court read and considered the Plaintiff’s submissions who at length submitted regarding foster care, unfortunately, there is no pending application seeking extension of the foster care. Besides, the foster care placement fulfilled its objective, Baby Z was protected, nurtured, cared for and provided for. She has for the last 10 years received safe, healthy and wholesome family support. Baby Z has received parental care and nurtured family relationship for 10 years. Baby Z has this far received social and economical stability in her life as a child and has enjoyed the benefits of a stable family support system. Last but not least, Baby Z has with no doubt created a family relationship with 1st Defendant, has learnt a new culture, ethnic orientation and community diversification. 130.Defence witnesses testified at length to this effect. The minor too testified at length and confirmed that the foster objectives have been met. 131.Court is guided by Section 171 of the Children Act which provides for the restriction on the period of foster care. The act provides,“foster care" includes—(a)placement of a child in foster care on short term basis for a period not exceeding three years— 132.As guided above, this court cannot extend the foster care. As per the Act, foster care is to be for a short-term basis for a period not exceeding three years. To this end, Baby Z has this far been in foster care for 10 years. Consequently, by law, this court cannot any further grant foster care. Guardianship 133.Guardianship in Kenya is governed by Part X of the Children Act Cap 141 and The Children (Guardianship) (Practice and Procedure) Rules, 2024 as per Legal Notice 159 of 2024. 134.A guardian is a person either appointed by will or deed by parents of a child or by an order of Court to assume parental responsibility over a child. Court is authorised to appoint a guardian to act with the mother or with the father in taking care of a child. Where a surviving parent is separated from the deceased parent before his or her death, Court may on application by any other person determine whether the surviving parent is fit to act as guardian of the child. In our case, there is no evidence whatsoever of the existence of the minor’s father. Court notes the content of the birth certificate filed by both the Plaintiff and the 1st Defendant. In juxtaposing the birth certificates with the testimony of PW 6, court is left with no doubt that Mr. Musa Ahmed Ismail cannot be the father of the minor unless other cogent evidence is adduced. 135.Court considered PW 6’s evidence and measured it on a balance of probability. Court notes that the burden of proof was on the Plaintiff to justify existence or parenthood of Mr. Musa Ahmed Ismail. Court is guided by the Court of Appeal in the locus classicus case of Anne Wambui Ndiritu –v- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where the court held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 136.The burden of proof is neither on the Plaintiff nor the Defendant but on the party that alleges a specific matter. In our case, Plaintiff produced the birth certificate and alleged that Mr. Musa Ahmed Ismail is the father to the minor. It is not lost to this court that instruction given for processing the birth certificate came for Plaintiff and the family. The burden was therefore on the Plaintiff to substantiate that which she desired the court to believe that Mr. Musa Ahmed Ismail is the father to the minor. It is now settled law that the evidential burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden, is cast upon any party, the burden of proving any particular fact which he/she desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person. It was upon the Plaintiff and PW 6 to discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given. 137.As stated, even as court was considering the first in time prevails, court weighed Plaintiff’s and PW 6’s evidence and exhibit on a balance of probability. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –v- George Thuo & 2 Others [2010] 1 KLE 526 stated that:-“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 138.The balance of probability therefore expects he who alleges an issue must establish that it is probable than not that the allegations he made occurred. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 139.Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 140.With the above in mind, court wonders, what is the probability that Musa Ahmed Ismail is the father of the minor. Please note that the birth certificate was prepared by PW 6 on 18th June, 2024, 8 years after the minor herein was born. Can the court be satisfied that PW 6 knows the father of the minor in the alleged birth certificate simply because PW 6 is the midwife who assisted Mrs S to give birth? It goes without saying the PW 6 was clear when she informed court that Mrs. S had many husbands. With this in mind, can the court be satisfied that PW 6 knows the father and that the birth certificate details of the father are correct? On a reasonable degree of probability, is it probable that a midwife would know the father to a child without DNA when it is clear that conception is almost always a private affair? Equally, noting the lapse of time – 8 years, is it probable that a midwife would be accurate in identifying the father of a minor noting that she is not related to the said family? On a balance of probability, there is doubt that PW 6 knows the father to the minor and that Mr. Musa Ahmed Ismail is the father. 141.Court notes that based on the testimonies and documents, the alleged father Mr. Musa Ahmed Ismail has not been found and has not been active in the minor’s life. There is no proof that the minor’s father is surviving or active in the minor’s life, except on the alleged birth certificate as filed by the Plaintiff, the alleged father by court records has been missing in action the entire life of the minor. In the case of LAC & another v MJC (Civil Appeal E119 of 2021) [2022] KECA 68 (KLR) (4 February 2022) (Judgment), the Court of Appeal asserted that:-parental rights are unassailable except in instances where it is demonstrated that the parent is unfit. 44.It is thus clear that the minor herein has a right in law to live with and be raised by their biological parents. In the absence of the mother, then the respondent who is the biological father would rank in priority over any other person unless good reason be given that he is not capable of exercising parental care and responsibility as the law requires of him. 142.As guided by the Court of Appeal in the case of LAC, an absentee father or parent is considered unfit for parental responsibilities. This is sufficient proof and authority for court to appoint a guardian to take care of Baby Z. Further and in line with Section 123(3) of the Children Act, it is clear from the testimony presented by parties that the minor’s father had separated from Mrs. S before Mrs. S passed on. Plaintiff testified that Mrs. S travelled back to Wajir and remained in Wajir until she passed on, on 17th February, 2019 due to mental illness and tuberculosis. There was no proof that Mrs S was ever with the husband. All evidence however pointed towards proving that S and the husband were no longed together and were separated. In this case too, Section 123(3) of the Children Act authorizes Court to on application by any other person to determine whether the surviving parent is fit to act as guardian of the child. To this end, as an absentee father, he is not fit unless otherwise proven. 143.Further, in line with Section 125 of the Children Act, court is authorised to appoint a guardian on application by any person where the child’s parents are deceased or cannot be found and the child has no guardian or other person having parental responsibilities. In our case, it is uncontroverted that Mrs. SM Abdi passed on. It is equally uncontroverted that the alleged father Mr. Musa Ahmed Ismail cannot be found and has not been active in the life of the minor. 144.Further to the above guidance from the Children Act, the Children (Guardianship) (Practice and Procedure) Rules, 2024 Legal Notice 159 of 2024 further guidance on issues concerning guardianship. It provides that any child is eligible to be placed under guardianship if the child is a resident of Kenya. In our case, it is uncontroverted that Baby Z is a Kenya citizen. It is not disputed that she was at least born in Kenya. PW 6 testified to this effect that she participated in the delivery of the baby, court as discussed above determined that whereas the birth certificate presented by Plaintiff is legally disputed, there is no doubt that Mrs. S did not conceive again after the birth of Baby Z. In essence, PW 6’s testimony confirmed that the child is a Kenyan citizen. Equally this court is aware that having been born in Kenya by at least a Kenyan mother, Baby Z is by law a Kenyan citizen – See Article 14 of the Constitution of Kenya 2010. 145.With reference as to who is eligible to be appointed as a guardian, Rule 6 provides that a person is qualified to be appointed as a guardian if that person is a Kenyan citizen, the person is fit as defined under Section 2 of the Children Act – ( it is shown to the satisfaction of the Court to be of high moral character and integrity, and who is capable of exercising proper care and guardianship of a child). 146.A person is equally eligible to be a guardian if he or she is not a person with mental illness as determined under the Mental Health Act. Lastly a person is eligible if he has not been convicted of any of the offences specified in the Third Schedule of the Children Act or similar offence. Rule 6(2) puts a caveat on guardianship that a person shall not be appointed to be the sole guardian of a child if the person is not a relative of the child, unless exceptional circumstances exist to justify such appointment, having regard to the welfare and best interests of the child. At this juncture, it is important to acknowledge that the Plaintiff and the 1st Defendant both prayed for guardianship. As far as the criteria established in Rule 6, there is no doubt that both are Kenyan citizens, there is no doubt that both are fit persons, there is no doubt that both are not persons with mental illness and lastly there is no doubt that both have not been convicted of any of the offences specified in the Third Schedule of the Act or similar offences. To this end therefore, both the Plaintiff and the 1st Defendant are eligible for guardianship and this court is authorized as per Rule 7(d)(e), Rule 9(a) and Rule 10 of the Guardianship Rules to appoint either or both of them as guardians. It is equally important to note that there exists no testamentary guardianship in this case that would bar this court from making a guardianship appointment one way or the other. Additionally, it is uncontroverted that no will or deed was ever filed by any party in this case. 147.With the above in mind, this court further considered principals of law that govern guardianship. These include parens patriae. (of the state and court) and paternalism. Parens patriae. 148.A reference to the Pleading confirms that Plaintiff sued Mrs. HHA (the foster mother), Feisal Abdi Dahir (the Children Officer Wajir County) and The Attorney General – the principal legal adviser to the Government of Kenya. This court notes with concern the inclusion in this case of Mr. Feisal Abdi Dahir in his private capacity. By law and as guided by Section 41(1)(2) of the Children Act, the National Council for Children’s Services is the body corporate with perpetual succession, common seal and powers to sue and being sued. Be as it may, all parties participated in the trial. Importantly is the position taken by the State through its Attorney General. It was the Attorney General’s case that 1st Defendant has had custody of the child since when she was 8 months old until now when she is 10 years, so the court should allow 1st Defendant to be granted guardianship of the minor herein. It is this position held by the State – the Republic of Kenya, that gives rise to the parens patriae principal. 149.Parens patriae, refers to the State’s authority and responsibility to protect the best interest of vulnerable persons in society. This to say the least includes the State’s authority to protect the child in this case noting her vulnerability. It is uncontroverted that the minor was abandoned at age 8 months, rescued by DW 6 Mr Said Ahmed M (a Chief) at 11pm outside his house and handed over to police on 4th of April, 2017. The minor has since then been in the custody of 1st Defendant. Court has consulted several jurisdictions regarding parens patriae and is guided as seen hereunder. 150.As of 3rd April, 2017, Baby Z lacked a parent. It is in this breath that parens patriae took effect. Court notes that the word "parent" originates from the latin words "parens" and "parere", meaning to "bring forth". In essence, he who must be entrusted with actual custody of the child must be an accomplished person capable to fulfil parental responsibilities as enumerated in Section 31 of the Children Act. In this case and as guided by parens patriae, the views of the Attorney General are vital. The considerations that court must equally keep in mind are whether an applicant can fulfil parental responsibilities. Court must consider whether parties fulfilled this by proving on a balance of probability. It is not enough to seek to be a guardian, parens patriae dictates that one must have proven his or her capability in fulfilling parental responsibilities including the duty to maintain and provide the child with basic nutrition, shelter, water, sanitation facilities, clothing, medical care, basic education, general guidance, social conduct, moral values, protection from neglect, abuse, discrimination and other ill treatment. The court had an opportunity to examine the child at length and has no doubt that the 1st Defendant – Mrs. HHA fulfilled all these parental responsibilities and on the face of it had an upper hand. With reference to the duty to protect the child from neglect, abuse, discrimination or other differential treatments as expected in Section 31(2)(b) of the Children Act. Testimony presented in court confirmed that when the minor was neglected by the mother and father, when the minor was abused by being dumped outside at night at 11pm, it is the 1st Defendant who took up these parental responsibilities and gladly invited Baby Z to her house. It is not lost too that 1st Defendant not only nurtured Baby Z, testimony presented by Defence witnesses confirmed that 1st Defendant having not given birth herself had raised other children from childhood to their current age - Sabrina 16 year [F], Abdiaziz 19 years [M], Uber 24 years [F], Abdia 22 year [F]. This act of kindness cannot go unnoticed. 151.On a balance of probability, 1st Defendant’s action of availing her parental care during distress of Baby Z dents Plaintiff’s position. Whereas the Plaintiff testified that they reported the matter to the police when the child went missing, this was not believable as their narrative simply did not add up, please note that the child was rescued on 3rd April, 2017 yet the Plaintiff’s narrative was that their child was born on 25th November, 2017 (see birth certificate filed by Plaintiff). If the Plaintiff’s narrative is anything to go by, their baby must have been rescued in July 2018 – that is 8 months after birth. 4th April 2017 to July 2018 is 17 months. 4th April, 2017 to 25th November, 2017 is 8 months after the child went missing. In at least 8 months, no report was made by the Plaintiff to any police station in the country and the Plaintiff herein did nothing at all to follow up on a missing child she now is praying to be allowed guardianship. Unfortunately, this fact is cast on stone as Plaintiff’s narrative was that their baby was born on 25th November, 2017 a matter court analysed and found to be impossible. In essence, from 4th April, 2017 to 25th November, 2017, the Plaintiff did exactly nothing though Baby Z was missing. Sample that! 152.With the above in mind, parens patriae expects that a person who may act as a parent to fulfil the requirements of Section 31 of the Children Act. Over and above that precedents provide that a child who was born to parents who were not married to each other was considered filius nullius (the son of no one) or filius populi (the son of the people). Such a child suffered additional disadvantages to those of infancy. Ireland in this case insisted on having family based care for the minor, that the applicants be of a family structure with at least a father and a mother. Whereas this is not mandatory, it is an added advantage on the 1st Defendant noting that 1st Defendant testified that she is married. The minor too referred to 1st Defendant and Mr. M as mother and father respectively. This confirms that 1st Defendant and Mr. M have achieved in loco parentis, in the case of Waters v. Cruikshank [1967] I.R. 378 at 384-285 per Kingsmill-Moore J.; Hollywood v. Cork Harbour Commissioners [1992] 1 I.R. 457 at 465-466 per O'Hanlon J.. England: Ex Parte Pve (1811) 18 Ves. Jun. 140, 34 E.R. 271 at 153-154, 276 per Eldon L.C.; Powys v. Mansfield (1837) 3 Myl. & Cr. 359, 30 E.R. 964 at 367-368, 967-968 per Cottenham L.C.; Savre v. Hughes (1868) L.R. 5 Eq. 376 at 380 Sir John Stuart V.C.; Bennet v. Bennet (1879) 10 Ch. D. 474 at 477 per Jessel M.R. ; In Re Hamlet, Stephen v. Cunnigham (1888) 38 Ch. D. 183 at 190 per Kay J. . Canada: In Chartier v. Chartier [1999] 168 D.L.R. (4th) 540 at 552 and 555-557, the courts held that a court should consider the views of the child when determining whether a person was in loco parentis to a child. In our case, this testimony from the minor came out naturally one would think 1st Defendant and Mr. M are the minor’s biological parents. 153.From the forgoing, Parens patriae steps in to assist the State and Court to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit – See Beson v Director of Child Welfare (Nfld), [1982] 2 SCR 716; Re Eve[1986] 2 SCR 308 [Re Eve]. This is applied majorly to protect the vulnerable person. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised. This has been in practice, in the past and was exercised in the prerogative powers of the medieval Kings to take “responsibility for those without the capacity to look after themselves”. 154.In essence, the state is consulted on the way to handle children when children are no longer the property of the parents. In the Canadian Supreme Court case of Racine v. Woods (1983) 1 D.L.R.(4th) 193 at 2 02, Wilson J acknowledged that law no longer treats children as property of the parents as the ultimate parent is always the State. Similarly, in our case, on 3rd April 2017, parens patriae kicked in when the mother abandoned Baby Z and the father was not active in her life. The state became the parent and State’s views as to who should keep the child are vital as when rubber meets the road, it is the State that will carry the cross. 155.As at the time of abandonment, Baby Z was still dependant on others for protection, food, shelter, education and general parental care. No wonder DW 6 Mr Said Ahmed M testified that he found the child crying and even after being rescued, she cried the entire night. As at the time of the rescue, Baby Z was in her very early stages of development both physically and intellectually and required parental care to assist her in nurturing her physical and intellectual capacities. Equally, as at the time of the rescue, Baby Z’s intellectual competence could not allow her to make decisions for herself. It at this juncture that State’s parental responsibilities stepped in. Consequently, the State’s views are essential. 156.As seen above, abandonment presupposes that the State shall step in and be the parent or identify the person it best considers to be appointed the parent. In England, the sovereign had a custodial jurisdiction over any abandoned child and in effect became the child's parent. This principal was applied as early as 1722 in the case of Eyre v. Countess of Shaftesbury England: (1722) 2 P. Wms. 103, 24 E.R. 659 where the Court held.[T]he King is bound of common right, and by the laws to defend his subjects, their goods and chattels, lands and tenements, and by the law of this realm, every loyal subject is taken to be within the King's protection, for which reason it is, that idiots and lunatics, who are incapable to take care of themselves, are provided for by the King as pater patriae; and there is the same reason to extend this case to infants. Infants as well as idiots and lunatics, are said to be under the care and protection of the Crown, as persons equally unable to take care of themselves. 157.In our jurisdiction, the State as parens patriae has been established in Article 1(3) of the Constitution. The Constitution of Kenya 2010 entrust and delegates sovereign power to the State and state organs. In our case, the powers are delegated to the National Executive and the executive structures, Parliament and the Judiciary. Whereas there are three arms of government, the state has the greatest interest in determining the status and welfare of a child – See England: Hope v. Hope (1854) 4 De G. M. & G. 328, 43 E.R. 534 at 344-345, 540-541 per Cranworth L.C.; J. v. C. [1970] A.C. 668 at 693 per Lord Guest. Canada: King v. Low [1985] 16 D .L .R . (4th) 576 at 582. It is in this regard that the Attorney General’s (3rd Defendant) views are considered parens patriae and vital to this court. The State’s views are ultimately considered a vital prerogative that protects children. See England: In Re Spence (1847) 2 Ph. 247, 41 E.R. 937 at 252, 938 per Cottenham L.C.; Brown v. Collins (1883) 25 Ch. D. 56 at 60-61 per Kay J . ; Barnardo v. McHugh [18 91] A.C. 388 at 395 per Lord Halsbury; In Re Magees, Infants (1893) 31 L.R. Ir. 513 at 519 per Porter M.R.; In Re N. (Infants) [1967] 1 Ch. 512 at 530 per Stamp J.; In Re L. (An Infant) [1968] P. 119 at 156 per Lord Denning. 158.In South Africa, it is settled that State as the parent can limit even parenting rights in order to guard the general interest of the child. In the case of Christian Education South Africa v Minister of Education [2000] ZACC 11 (18 August 2000). South African constitutional Court held.In similar vein Rutledge J of the US Supreme Court stated in Prince v Massachusetts:“And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor [sic] and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death . . . [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction. 159.In Canada, the Supreme Court reiterated the position of State in parens patriae in protecting welfare and assisting those who cannot help themselves. In Re Eve [1986] 2 SCR 388 (Canada) §§ 1, 73, 77, 82, 84, 86, 92. Court held:-The parens patriae jurisdiction is . . . founded on necessity, namely the need to act for the protection of those who cannot care for themselves. . . . The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare.” It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised. . . . The discretion is to be exercised for the benefit of that person, not for that of others. . . . This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual. . . . One may sympathize with [Eve’s mother]. . . . But the parens patriae jurisdiction cannot be used for her benefit. Its exercise is confined to doing what is necessary for the benefit and protection of persons under disability like Eve. . . . So we are left to consider whether the purposes underlying the operation are necessarily for Eve’s benefit and protection. . . . Many [such persons who conceive a child], it is true, may have difficulty in coping, particularly with the financial burdens involved. But this issue does not relate to the benefit of the incompetent; it is a social problem. . . . Above all it is not an issue that comes within the limited powers of the courts, under the parens patriae jurisdiction, to do what is necessary for the benefit of persons who are unable to care for themselves. . . . Accordingly, the procedure should never be authorized for nontherapeutic purposes under the parens patriae jurisdiction. . . . The fact that others may suffer inconvenience or hardship from failure to do so cannot be taken into account. The Crown’s parens patriae jurisdiction exists for the benefit of those who cannot help themselves, not to relieve those who may have the burden of caring for them. 160.It should however by noted that as seen above, parens patriae is crafted for the benefit of the child, not the parents, relatives or any other third party. The Supreme court of New South Wales in the case of H v. AC [2024] NSWSC 40 (New South Wales), §§ 54–55 held as follows:In a case such as the present, the Court is not balancing the interests of the individual against broader public or governmental interests. . . . All humans affect others and are affected by a myriad of relationships. . . . However, the parens patriae jurisdiction is not used for or directed to the benefit of parents or others related to or connected with a child that is the subject of the Court’s consideration. Its exercise is directed to, and in that sense circumscribed to, doing what is necessary for the benefit and protection of such child. 161.Parens patriae is in essence exercised in the best interest of the child or vulnerable persons, for the child’s benefit or welfare. See JP v. British Columbia (2015) B.C.S.C. 1216. Over and above that, the concept of parens patriae was developed with reference to the power of the sovereign to act as ‘the general guardian of all infants, idiots, and lunatics’ – See Rogers v. Okin, 634 F.2d 650, 654, 657, 661 (1st Cir. 1980) (US). The State is therefore authorized to exercise its state powers as the parens patriae doctrine guides, in essence, parens patriae gives the State authority to serve as a substitute parent and ultimate protector of children’s interests and welfare. This is acknowledged in the Kenyan case of John Kinyua Kivuti v Kanyi Njiru & 4 others [2015] KEHC 5955 (KLR) where the state was considered as the upper guardian (parens patriae) to protect the interests of the minors. 162.The Executive is not alone in considering the best interests and welfare of such an abandoned child. Court too acts in loco parentis as a wise and affectionate parent to consider the facts of the case and determine the best way forward for a child. See - England: R. v. Gvngall [1893] 2 Q.B. 232 at 241-242 per Lord Esher M.R. and at 248 per Kay L.J.; In Re Story [1916] 2 I.R. 328 at 339 per Gibson J. In Australia the Supreme Court reiterated the same position in the case of H v. AC [2024] NSWSC 40 (New South Wales), § 47 where it held that the inherent, protective jurisdiction of the Court exists for the protection of those (including, but not limited to, minors) who are unable to protect themselves. It accords paramountcy to the welfare of the person in need of protection. 163.This has been the position and in the case In Re J. (A Minor) (Wardship: Medical Treatment) England: [1991] Fam. 33. Balcombe L.J. held that:-the court adopts the same attitude as a responsible parent would do, in the case of his or her own child; the court exercising the duties of the [s]overeign as parens patriae is not expected to adopt any higher or different standards than that which, viewed objectively, a reasonable and responsible parent would do. 164.The court has parens patriae power to deal with anything affecting the child's welfare including custody, care, control, protection of property, medical intervention, religious upbringing, education and protection against potentially harmful relationships. See In Re a Ward of Court (withholding medical treatment)(No.2) [1996] 2 I.R. 79; In Re Gills, Minors (1891) 27 L.R. Ir. 129 at 134-135 per Ashbourne L.C.; In Re S. (An Infant) [1967] 1 W.L.R. 396 at 407 per Cross J.; In Re Mohamed Arif (an infant) [1968] Ch. 643 at 662 per Russell L.J.; In Re X. (A Minor)(Wardship: Restriction on Publication) [1975] Fam. 47 at 50 per Latey J.; In Re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185 at 196 per Heilbron J. ; In Re B. (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421 at 1424 per Templeman L.J. and Dunn L.J.; In Re C.B. (A Minor)(Wardship: Local Authority) [1981] 1 W.L.R. 379 at 3 8 7-388 per Ormrod L.J.; In Re S.W. (A Minor)(Wardship: Jurisdiction) [1986] 1 F.L.R. 24 at 27 per Sheldon J.; In Re P. (A Minor) [1986] 1 F.L.R. 272 at 276-279 per ButlerSloss J.; In Re C. (A Minor)(Wardship: Medical Treatment) [1990] Fam. 26 at 32 per Lord Donaldson M.R. and at 38 per Balcombe L.J.; In Re J. (A Minor)(Wardship: Medical Treatment) [1991] Fam. 33 at 40 per Lord Donaldson M.R. and at 4 9 per Balcombe L.J.; In Re C. (a baby) (1996) 32 B.M.L.R. 44 at 45 per Sir Stephen Brown P. 165.Even as court applies parens patriae, just as State, Court’s true north must be the welfare and best interest of the child and not the interest of parents, relatives or third parties, the court must weigh the circumstances and consider what would best fit the welfare of the child notwithstanding the needs of parents, relatives or third parties. This is reiterated in UK where court in J. v. C. [1970] AC 668, 697 (UK) (Guest LJ) reiterated that the law administered by the Chancery Court as representing the Queen as parens patriae never required that the father’s wishes should prevail over the welfare of the infant. The dominant consideration has always been the welfare of the infant. 166.In Australia, the Supreme Court also followed the same reasoning in the case of Re Frances and Benny [2005] NSWSC 1207, 17 (Young CJ in Eq) where the court held that in exercising parens patriae jurisdiction the court’s concern is predominantly for the welfare of the person involved. In the USA Court of Appeal in the case of In re J. J. Z., 630 A.2d 186, 193 (DC 1993), court too reiterated the position played by court in parens patriae in determining the welfare of the vulnerable, court held that:-this court has recognized the longstanding principle that ‘in a civil proceeding predicated on alleged child neglect or abuse, the best interest of the child is the paramount consideration.... Neglect statutes authorizing state intervention on a child’s behalf . . . should be liberally construed to enable the court to carry out its obligation as parens patriae’ 167.This court in consideration of the facts at hand ask the critical question, in whose hands will Baby Z be safe? Is it in the Plaintiff’s hands who was nowhere to be seen on 3rd April 2017 when Baby Z needed her most? The Plaintiff testified that she used to stay with Mrs S, how then would S lose her baby or dispose off her baby and yet Plaintiff failed to act for 10 years only to show up when 1st Defendant was formalizing her relationship with Baby Z. 168.Again, this court asks, in whose hands with the minor herein be safe? The Plaintiff majorly relied on the DNA results from Government Chemist dated 18th July, 2025. Can a DNA result fulfil parental responsibilities? Not at all. It goes without saying that the DNA simply proves that Z. M. A. I is a biological sibling to M. A. J. O, A. N. H. J. H(see DNA results). The DNA results has no bearing in fulfilling parental responsibilities. Besides, the DNA does not prove that Plaintiff is related to the Baby Z. Even for argument sake if Plaintiff is related, DNA has no bearing in Section 125(1)(a) of the Children Act. Further, this court’s true north is at Section 125(1)(a) of the Children Act, does the DNA result prove provision of parental responsibilities to Baby Z as expected in the legal provision? Definitely not. As a matter of fact, the DNA result is detrimental to Plaintiff’s (– Mrs K) case on a balance of probability. On a balance of probability, what the DNA result are saying is that Plaintiff who claims to be related to the minor and that was living with the minor’s mother noticed Baby Z was missing and she did NOTHING at all for at least 8 months from 3rd April, 2017 to 25th November, 2017. Is this the person to entrust with a heavy task as prescribed in Section 125(1)(a) of the Children Act – Parental responsibility over Baby Z? I don’t think so. This court is not surprised as the child too was crystal clear that it doesn’t matter what court will say in contradiction of her position, she will simply respect court but disobey the order. She remained firm that her mother is 1st Defendant – Mrs. HH and her father is Mr. M. 169.With the above in mind, Australia Supreme Court guides that court and state must act as guardian and make the appropriate decision for the best interest of the minor. Court in the case Re Jules [2008] NSWSC 1193, 16 held:-In exercising this jurisdiction, the Court endeavours to act as would a wise parent. . . . The Court may in place of the parents make those decisions which it considers appropriate in the best interests of the child. 170.In Kenya, Court have too been entrusted with the ultimate guardian position necessary is assisting minors and determining the welfare of the minors, the High Court in the case of JKK v HKK [2026] KEHC 3539 (KLR) reiterated the courts parens patriae authority in determining minor’s welfare and best interest, Court held:Proceedings concerning the welfare of a child are not mere adversarial contests between two aggrieved adults; they are sui generis proceedings where the court exercises an overriding parens patriae jurisdiction. In this jurisdiction, the court acts as the ultimate guardian of the vulnerable minor, possessing the inherent power and statutory duty to intervene actively to protect the child from harm and ensure their holistic welfare. 25.The jurisprudential shift away from procedural rigidity in children's matters was crystallized by the promulgation of The Constitution. Article 53(2) elevates the child's welfare to a constitutional imperative, stating unequivocally: A child's best interests are of paramount importance in every matter concerning the child. 26.This constitutional dictate is operationalized by the Children Act. Section 8(1) mandates that in all actions concerning children undertaken by courts of law, the best interests of the child shall be the primary consideration. Section 8(2) compels all judicial institutions, when exercising any powers conferred under the Act, to adopt a course of action calculated to safeguard, promote, and conserve the welfare of the child, and to secure such guidance and correction as is necessary. 171.Guardianship parens patriae in Kenyan Court is therefore in Section 125 of the Children Act. This mandates the court to act as ultimate guardian of the vulnerable minor and make the appropriate decision for the best interest of the minor in appointing a guardian for the minor. In such circumstances where the minor is vulnerable, the Court's supervisory role ceases to be merely administrative and becomes deeply protective. This court is therefore called upon to protect Baby Z and exercise its parens patriae power in identifying the person who will be the best guardian and custodian of the minor. This is emphasized in the case of In re Estate of Jasani (Deceased) [2026] KEHC 6436 (KLR) where High Court held:-the protective mantle of the Court—its parens patriae jurisdiction—is profoundly activated. In such instances, the Court's supervisory role ceases to be merely administrative and becomes deeply protective. The Court must scrutinize the conduct of the Administrators with heightened vigilance to ensure that the vulnerability of the incapacitated beneficiary is not exploited. 172.This authority to guide the minor to the best hands is not limited even when next of keen are present. The court must not act merely as administrative but must become deeply protective of the minor notwithstanding availability of the minor’s relatives. The court in the case of Prince v. Massachusetts, 321 U.S. 158, 166 (1944) reiterated that position as follows:“Acting to guard the general interest in [a] youth’s well-being, the state as parens patriae may restrict the parent’s control. . . .” Also, “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. . . . It may secure this against impeding restraints and dangers. . . .[where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. the state owes every individual a presumptive negative duty of non-interference in private life because each has an inherent dignity that gives rise to rights of integrity and sovereignty over their own life and person] 173.Noting that children are protected by the Constitution of Kenya Article 53, court in application of parens patriae must chose for the child options that do not contravene the child’s human rights. This was emphasized in Australia Supreme Court in the case of Re Kara [2020] NSWSC 1083 (2020), § 65 where court held:-in exceptional cases where deprivation of liberty is a necessary consequence of the exercise of the parens patriae jurisdiction for the protection of the child and the promotion of his or her welfare, the making of orders by the Court as parens patriae that interfere with the personal integrity and liberty of a child will not contravene the child’s human rights. 174.Court should note that the child has no capacity to make choices as an adult would and so must step in and apply parens patriae in taking care of the minor’s welfare. It was Plaintiff’s submission that court should disregard the minor’s views and simply adopt the report filed in court. Whereas this court addressed that question of law in the ruling, it is not lost to this court that the Children Act Section 103(1)(c) and precedent authorize court to ascertainable wishes of the child and apply them accordingly. This court considered the social enquiry report dated 16th September, 2025, there is however no doubt that the conclusion was skewed and completely off tangent noting the guidance of the law regarding guardianship. In this regard, this court is guided by the case of Rupa Kenya Limited & 2 others v Kenya Commercial Bank Limited (Civil Appeal 330 of 2014) [2024] KECA 1140 (KLR) (20 September 2024) (Judgment) where Court of Appeal held that opinion evidence of an expert is not binding on a court of law but however ought to be given their due weight especially so where the basis for the expert’s opinion is clear beyond peradventure. This was too the holding in the High court case of Kimani -vs- R [2000] 2 EA 417. A look at the report confirms Court’s fears that a decision has already been made as to what should happen to the child, no wonder the Plaintiff and her Advocates vouched for the report even before it was released to them. There was no doubt in court’s mind that they had wind of the contents of the report and by all means they put up a fight to muzzle the minor and have the report speak in her place. It is now clear that the case of Kicherer v. Kicherer, 400 A.2d 1097, 1100–1 (MD 1979) sought to protect the minor in such events. Kicherer guided that even if the child has next of kins, the court as the guardian must consider all factors based on its discretion what is best for the child. Court of equity is to assumes jurisdiction in guardianship matters to protect those who, because of age, illness or other disability, are unable to care for themselves. 175.Court’s position in the case of Kicherer’s is equally affirmed in Canada Supreme Court and in England in the cases Wellesley v. Beaufort, 38 Eng. Rep. 236. See also Durham Children’s Aid Society v. BP, O.J. No. 4183, § 29 (2007) (Ontario); Re Eve [1986] 2 SCR 388 (Canada) § 73 where Courts emphasized and equated parens patriae to the common law doctrine of necessity, court’s authority therefore is to exercise its discretion to do what is necessary for the protection of the person who is vulnerable and may not be in a position to fight for himself or herself. Courts are not to fold hands and move like wind. It is now settled that it does not matter what the parents or relatives and third parties say, family members and third parties have no entitlements in protecting the welfare of the vulnerable - See Cruzan by Cruzan v. Director, Missouri Department of Health, 497 US 261, 286 (1990). 176.For court to exercise the parens patriae role, it must receive information. One of the sources of the information must be the minor in question. It is now settled that court must enquire and evaluate information from the child across the full range of welfare considerations, including emotional security, educational continuity and quality, healthcare, safety, cultural exposure, and access to supportive familial environments. The Court of Appeal in the case of JASREEN KAUR PANDHER vs KABIR SINGH CHAL CIVIL APPEAL NO. E223 OF 2024 reiterated the importance of court receiving input from the minor in question and considering his or her welfare needs, whether they are met. That court should not be in a hurry to move a child from one home to the other, that court must evaluate the likely benefits of relocating a child from one home to the other. Court of Appeal held:-the court must evaluate the likely benefits of relocation for the child across the full range of welfare considerations, including emotional security, educational continuity and quality, healthcare, safety, cultural exposure, and access to supportive familial environments. Kenyan jurisprudence has consistently affirmed that the best interests of the child is a holistic and contextual constitutional standard, requiring courts to evaluate the child’s welfare in the totality of their lived experience rather than through isolated or fragmentary advantages. The Supreme Court has underscored that Article 53(2) demands a purposive and integrated inquiry that resists mechanical reasoning or single-factor determinism (ZAK v MA & Another [2018] eKLR) 177.By making the above analysis, court will be in a better place to apply parens patriae in the best interest of the minor. That the court must be concerned about the child’s welfare, her stability and the practical capacity of the applicants to offer sufficient parental care to the minor. Court of Appeal in the case of JASREEN KAUR PANDHER vs KABIR SINGH CHAL CIVIL APPEAL NO. E223 OF 2024 held as follows:-54.The best interest principle, properly understood, requires neither error. It demands a structured, evidence-informed, transparent inquiry which keeps the child at the centre while recognising that a child’s welfare is intimately bound up with the stability, wellbeing, and practical capacity of the parent who bears the day-to-day caregiving load. 178.In essence, this capacity analysis is not just a matter of saying I am the good Samaritan who rescued the baby so give me the guardianship. It is equally not as simple as saying, I am the minor’s auntie, give us back the child. The law expects more from Court as the parens patriae. It is equally not enough to testify that the minor’s siblings need to stay with her. It is not disputed that Baby Z has siblings as confirmed by the DNA results, but guardianship goes beyond siblings. It is not disputed that none of Baby Z’s siblings as presented by the Plaintiff and as per their testimony has capacity to offer Baby Z parental care and to take up parental responsibilities. It is not enough to say Baby Z is my sister, the law expects that this court must vet the capacity of the parties to support and sustain Baby Z. It must equally be noted that whereas in the past, other jurisdictions considered paternal and maternal relatives as preferable candidates, the common denominator is that the court must vet and exercise parens patriae in finding the minor a suitable guardian. In the Indian case of Kristo Kissor Neoghy v Kader Moye Dossee (1878) 2 CLR 583 court held that:-“A father is recognised as the legal guardian of his children when he exists, and when the father is dead the mother may assume the guardianship. In default of her, an elder brother of the minor is competent to assume the guardianship of him. In default of such a brother, the paternal relations generally are entitled to hold the office of guardian; and failing such relative, the office delves on maternal kinsmen, according to their degree of proximity, but the appointment of guardians universally rests with the ruling power”…. “Supports the view that in the absence of the father and mother or the guardian appointed by the father, the selection of the guardian is to be made by the court, which of course represents the ruling power.” 179.With time, India has since changed and the relative of the minor no-longer enjoy preferential treatment – See Surayya v Subbamma (1927) 53 MLJ 677 – where Devadoss and Jackson JJ observed that there is no reason ( even after considering the habit and customs of the people on this part of the country) why the paternal grandmother should not be considered the natural guardian of her grandchildren in the absence of the father and the mother. In India, it is upon the state and court to vet and determine the best hands to take up the guardianship responsibilities. In the case of Budhkaran Chaukhani v Thakur Prosad ILR (1942) 2 Cal 318 Justice Pal held as regards the guardianship of an infant, that the Hindu law vests in the King as parens patriae. The sovereign as parens patriae is the supreme and paramount guardian of all the minor children; this power is exercised by the court. Wellensky v Wellensky (1927) 32RR 15 and Butler v Freeman Amb 301 Lord Eldon and Lord Harwicke respectively hold and reiterate that the court exercised the power in safeguarding the welfare of the children, the court in this sense represents the king a parens patriae. 180.Whereas the minor’s relatives are important aspect of her life, the minor’s welfare is fundamental and supersedes mere nametag of a relative. India in the case of Lalta v Ganga AIR 1973 Raj 93 reiterated this position that:-welfare of the minor is of paramount consideration and father’s rights of guardianship is subordinate to the welfare of the child. 181.In our case therefore, it goes without saying that the welfare of Baby Z is a paramount consideration and Plaintiff’s alleged relationship is subordinate to the welfare of Baby Z. This was the position in Cruzan by Cruzan v. Director, Missouri Department of Health, 497 US 261, 286 (1990) and in Jasreen Kaur Pandher Vs Kabir Singh Chal Civil Appeal No. E223 Of 2024. 182.Importantly, court is guided that it is not advisable to move a child from his/her comfortable residence to another home even when it is a relative requesting. This is the position presented in S. Bikramjit Singh v Igbal Kaur AIR 1974 P&H 124 where the court held:-The uprooting of a minor child from his environment can create an emotional upheaval which may not be in the interest of the physical or mental health of the child. 183.Further court is guided that guardianship can be denied even to a parent or a relative who has been confirmed to have been living separately from the child for several years without taking interest of the minor. In Jijabai v Pathankhan AIR 1971 SC 315, the Supreme Court determined a case where the father was alive but had fallen out with the mother of the minor and was living separately for several years without taking any interest in the affairs of the minor who was in care of the mother. Court held that the father should be treated as if non-existent and therefore the mother could be considered as the natural guardian of the minor with powers to bind the minor. In essence, an absentee father/mother or any applicant who has been absent in the life of the child should not be given priority and if it is the parent, then he/she to be ignored in terms of natural guardianship. 184.India equally guides on de facto guardian. In the case of Palani Gouldan v Vajikkal AIR 1956 Mad 476, a de facto guardian was defined as one who is not a legal guardian in the sense that he/she is neither a natural guardian or a testamentary guardian or a court guardian, but whom being interested in the minor, though a stranger takes charge of the management of the minor. He is a self-appointed guardian, one who takes care of the minor in the minor’s best interest. Such a de facto guardian gets priority. In our case, the de facto guardian is the 1st Defendant, record shows that she has this far had custody of the minor since 4th April 2017. This period counts for something. On a balance of probability, it shows that at least 1st Defendant’s hands have been tried and tested. To this end, the minor herself endorsed 1st Defendant and Mr. M as her mother and father respectively. Court is therefore bound to exercise its discretion under parens patriae and consider the input by the de facto guardian. Additionally, de facto guardianship is similarly acknowledged in Muslim law, court notes that parties herein are Muslims, it is important to note that even on Muslim law, the de facto guardian has some significance. Tyabji defines 1st Defendant as “an unauthorized person who as a matter of fact (de facto) has custody and care of the minor and should be considered as a priority - See Muslim Law, 4th Edition, 213, also see – Ezaz v Iftikar AIR 1932 PC 76 and Md. Amin v Vakil AIR 1952 SC 358 and Imambandi v Mustasaddi ILR (1918)45 Cal 887 see also Ameer Ali, Mohammedan Law. Vol II(5th Edition) page 453. 185.Courts in India have considered caring de facto guardians as preferable guardians over absentee parents and relatives. In Guardianship of Philip B Court of Appeal in California 1983 – 188 Cal Rptr 781, it was an appeal between a parent, posing a sensitive confrontation between the fundamental right of parental custody and the well-being of a retarded child – suffering from down syndrome. This case reiterated the ingrained concern that the needs of a child remain paramount and that parental rights are not predisposed to parents or relatives. Custody of the minor was given to third party who was caring to the child suffering from down syndrome. Court of Appeal held that the guardianship to a third party who was caring must be upheld in order to avert potential harm to the minor. The third party taught the minor how to communicate, how to be self-reliant. The minor acknowledged the third party’s home as his home even though he had parents who had a home, the minor never acknowledged the parent’s home as his home. The minor had established a strong emotional attachment with the third party. Court held,“before a court makes an order warding custody of a child to a non-parent without consent of the parent, it should make a finding that the award of custody to a parent would be detrimental to the child and the award of custody to a non-parent is required to serve the best interest of the child. An award of custody to the parent would be harmful to the minor in light of the psychological or de facto parental relationship established between minor and the third party. Whether any adult becomes the psychological parent of a child is based on day to day interaction, companionship and shared experience. The parental role can be fulfilled either by the biological parent or by an adoptive parent or by any other caring adult but never by an absent, inactive adult.” 186.This case resonates at the same wavelength with our case. Baby Z has this far been in a parental relationship with 1st Defendant for at least 8 years since her childhood. Her testimony had a firm stand that her mother and father remain to be 1st Defendant and Mr M. Equally, Defendants proved on a balance of probability that the 1st Defendant fulfilled all the parental responsibilities, it was also not disputed that Baby Z’s father is an absentee father. These leave court with one conclusion as guided by Philip B. This court had the opportunity of examining the minor and has no doubt that the 1st Defendant has for the last 8 years guaranteed Baby Z all her Constitutional and Statutory rights as provided in Sections 11 to Section 26 of the Children Act. In essence, 1st Defendant fulfilled the parental responsibilities as enumerated in Section 31 of the Children Act. Unfortunately for the Plaintiff Mrs. K, this was not proven as she simply blanketly assumed her presence in court was to simply ask for the minor. Simply put, this is not the case, he who asks for custody of a minor must on the face of it substantiate that he/she shall fulfil the parental responsibilities. The court needs to be certain that the minor will eat, sleep, go to school, receive medication, receive religious guidance and parental care, all these were missing in Plaintiff’s case. 187.Considering the factors above, this court is convinced that 1st Defendant is best placed to take care of Baby Z. Paternalism. 188.Paternalism is the exercise of overprotective authority over an individual's rights. Where there is a need to protect children or vulnerable members of society against bad decisions of parents. This is achieved by requiring parents to act in the child's best interests when deciding on the exercise of the child's rights. The State must assume the role of decision maker where parents do not act in the child's best interests. In our case, on 3rd April, 2017, the State exercised paternalism through its chief DW 6 Mr Said Ahmed M, through the police at Wajir police station, through the children office at Wajir and ultimately through the Attorney General who took the stand that Baby Z should remain in the care of 1st Defendant – Mrs. HH. 189.Paternalism involves restricting a person's liberty when it is either for the promotion of the person's good or the prevention of harm to the person. It involves showing concern for the person and a presumption that one's judgment about what will promote the person's welfare is superior to that of the person concerned. Paternalism is seen where the state through its ultimate authority protects and provides for the minors and vulnerable persons in society. Paternalism may involve abrogating or denying an individual such a right in order to care for the individual. 190.Paternalism holds that the child’s human rights model must accommodate the fact that young children are by definition incompetent to exercise all or most of their rights, this calls on the State and the court to step in for the best interest of the minor. This is to protect the child against bad decisions that may be made by the parents or the next of kin. This court is guided by the Canadian case of B.(R.) v. Children's Aid Society of Metropolitan Toronto [1995] 122 D.L.R.(4th) 1 at 42 where La Forest J held.There is a need to protect children against bad decisions of parents. This is achieved by requiring parents to act in the child's best interests when deciding on the exercise of the child's rights. The State must assume the role of decision maker where parents do not act in the child's best interests. The plaintiff’s testified that the defendant though present is mentally unstable, this calls for the state and court to exercise paternalism in the best interest of the child. The court must also act in the child's best interests when deciding on the exercise of a child's rights. 191.Court notes that Plaintiff presented a narrative that Mrs S was mentally ill. Court previously analysed this position and on a balance of probability there was nothing at all to confirm that mental status. Can it therefore be reliable that Mrs. S abandoned Baby Z because S was mentally ill? Court is equally guided by Order 2 rule 10 of the Civil Procedure Rules where the law provides as follows.Particulars of pleading [Order 2, rule 10](1)Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—b)) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. 192.As per the guidance of law, Plaintiff – Mrs K was to plead and particularize the alleged condition of the mind of Mrs. S; disorder of mind or disability of mind with respect to Mrs. S. Was mental state of S pleaded and particularized? Not at all. What then is the consequences of failing to plead and particularize the mental state? It is now trite law that such evidence as may be presented is inadmissible in proving a fact in issue. This court is guided by the Court of Appeal decision in the case of Antony Francis Wareham T/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR, where the Court of Appeal, O’kubasu JA, Onyango-Otieno & Ringera AG JJ A made itself clear that: -“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” 193.As per the Court of Appeal decision, the court established that only evidence of facts pleaded is admissible. If the evidence does not support the pleaded facts, the party carrying the burden of proof must fail. It therefore can not be that Mrs S was mentally ill. Court noted that Plaintiff filed medical documents of Mrs S attending hospital for tuberculosis treatment, unfortunately, nothing was filed to prove that Mrs S was mentally ill. Relying on the testimony of mental illness will simply be setting up Defendants for an ambush. This notwithstanding, if for argument sake we believe that Mrs S was mentally ill, then that position is detrimental to Mrs K’s case as it displays a party who showed no interest in the missing child for at least 8 months after she went missing. The only formal sign of concern from Plaintiff was recorded in 2024, 7 years after the child was abandoned. It is in this regard that paternalism kicks in to secure the welfare of the minor. In 2017, the state in its exercise of paternalism authorized that 1st Defendant be entrusted with the minor. In 2024 before Plaintiff showed up, the State had entrusted the child to the 1st Defendant for at least 7 years. During trial, the Attorney General submitted and the State advisor holds the position that 1st Defendant – Mrs. H be entrusted with the child. Just as in parens patriae, in paternalism, the state almost always has the bigger picture of the life and best interest of the minor. The court only comes in to consider whether the law is complied with. To this end this court is convinced that the law has been complied with and that the minor Baby Z is comfortable staying with Mrs. H. She is so comfortable to the extent of requesting court to allow her stay with H or else she will disobey court. This court is not blind to the several embarrassing children cases in the country where courts have one way or the other gone against the wishes of the minor. 194.Court considered the social enquiry report dated 16th September, 2025, in the investigating officer’s view, it is important for the minor herein to have her sense of belonging. Unfortunately, the report concludes that Plaintiff has demonstrated her capacity to cater for the minor, this can not be farther from the truth and this court addressed this concern and to reiterate, the Plaintiff did not demonstrate her ability and capacity to provide and fulfil the requirements in Section 31 of the Children Act. On the other hand, the 1st Defendant fully demonstrated her capacity. She equally filed documents to confirm fulfilment of these requirements. The minor confirmed during her testimony that she has been provided with basic nutrition, shelter, sanitation, clothing, medical care, education, general guidance, religion, protection from neglect/abuse/discrimination, name, registration of birth etc. The social enquiry report recommended that the minor be reunited with the Plaintiff and Baby Z’s siblings. Would it fulfil the requirement of law to reunite the minor to the Plaintiff’s family yet the basic needs were not proven to be available and ready for the minor? Take for example which school has Plaintiff planed for the minor? None proven. Which shelter is prepared for the minor by Plaintiff? None proven. Does the Plaintiff have water and sanitation facilities for the minor? None proven. What is the Plaintiff’s plan for the minor with reference to clothing? None proven. What if the minor gets sick, what is the Plaintiff’s medical plan for the minor? None proven. What of immunization that is necessary for the minor, with no medical plan, can court blindly trust that the minor will be catered for? Further, now that the minor expressed fair reservation and complete dislike for change of residence and family, what plans did the Plaintiff justify in court that would enable the minor soften her stand? Any counselling sessions, none at all. Plaintiff is by law expected to prove how she is to protect the child from neglect, abuse and discrimination, noting the background of how Baby Z ended up with 1st Defendant, did the Plaintiff demonstrate her plan of how to regain the trust of the minor? Not at all. 195.This court mentioned before, that it is not enough to approach court and ask for guardianship and custody of the minor. Parties were expected to on a balance of probability justify why they are better placed to be entrusted with guardianship. 196.Court considered parties’ submissions, Plaintiff majorly relied on the DNA and the relationship she allegedly enjoyed with Mrs. S. Plaintiff further relied on the relationship between Baby Z and the other siblings. Plaintiff further spent time blaming the 2nd Defendant for one reason and the other. Further, Plaintiff submitted that the foster placement was improper, unlawful and illegal and that it was done in a huff. She equally decried the lack of post placement. Plaintiff reiterated the contents and the law on foster care. In the end, Plaintiff prayed for guardianship. This court addressed all these concerns above in details and shall not regurgitate the same. Regarding authorities, court followed guidance provided in the case cited by the Plaintiff. In the case of J v C [1970] AC 1968. Lord Mc Dermott Interpreted the Guardianship of Infants Act 1925, court emphasized on the need for courts to focus on the welfare of the child and that parents of the child and by extension relatives do not enjoy preferential treatment. That court must weigh every circumstance, relationship and potential risk rather than relying on presumptions of blood relationship. Additionally, Plaintiff relied on authorities that highlighted on best interest of the child, unfortunately, plaintiff did not point out how her position will serve the minor’s best interest. 197.1st Defendant on the other hand submitted and challenged the custodial order prayed for by the Plaintiff. She submitted that the Plaintiff only stated searching for the minor after 8 years. 1st Defendant reiterated that the minor has made up her mind and expressed strong reservations that she would not like to have anything to do with the Plaintiff. 1st Defendant relied in the case of Nakuru High Court Children Appeal No E 011 of 2021 and SMM v ANK [2022] KEHC 1043 (KLR) where Justice Joel Ngugi while deliberating on the custody of the children held as follows:- 78.The upshot of this analysis is that properly calibrated, both the Tender Years Doctrine and the Best Interests of the Child principle would, in the present case, unite to yield the conclusion that custody is best awarded to the Respondent. This is so for at least five reasons:a.First, the children have been with the Respondent for a significant period of time immediately preceding the suit. The period in question is more than 6 years for SCKK and more than four years for JWKK. Their being with the father was not product of subterfuge, conspiracy or abduction. It was by the mutual agreement of the parties. During that period, the two children have been enrolled in school in Kenya. They have adopted to the social-cultural and educational environment. They have fitted into the socio-ecological milieu. They have become accustomed to their life here. More importantly, they have bonded with the Respondent as a primary parent. To yank them out of this environment would no doubt cause psychological trauma. 198.It was 1st Defendant’s submission that since the biological parents of the minor are either deceased and/or their whereabouts is not known, and there is no will or any documentation which was left by the parents in regard to the child’s custody, court be guided by Article 53 of the Constitution of Kenya and Section 8 of the Children Act. 199.Further, 1st Defendant submitted that parental liaison should not be the sole determinant of being granted custody. She relied in the Supreme Court case of MAK v RMAA and Others (2023) KESC 21 (KLR) Petition No 2 (E 033) of 2022 where the court rendered itself that:-It is evident from the foregoing provisions that the child has a right to parental care and it is in the best interest of the child that he is brought up and cared for by his or her parent. This right can only be denied if it is proved with cogent evidence and valid grounds that a parent is not suitable or is incapable of taking care of the child. 200.1st Defendant further relied in the case of High Court of Nyamira Civil Appeal E 059 of 2023, DMO vs TKT and HNT where Okwany J declined to grant actual custody of a child to the biological father and held:I find that the appellant’s confirmation that he intends to leave the minor herein in the custody of his sister (PW2) does not bode well for the interests of the minor who has all along been under the constant loving care of her grandparents from the time of her mother’s death. This court is of the view that removing the minor from a stable home environment that has so far been provided for her by her maternal grandparents and taking her to a totally new place would not serve her best interests considering that she is only about 4 years as at the time of delivery of this judgment. I find guidance from the provisions of section 103 of the Act which outlines principles that must be considered by the court when making custody orders as follows: 201.Additionally, 1st Defendant relied in the case of Ramadhani Ali Athman vs Peter Mwingo Chirima [2020] eklr where Thande J granter custody of a minor to the maternal grandparents as opposed to the father, court held that:-Upon their mother’s demise, the Respondent took the children to live with their grandmother. The trial Court was persuaded that the Appellant had abdicated his parental responsibility. He had not been providing for the children both prior to and following the demise of their mother. The trial magistrate also found that the children were comfortable at their grandmother’s home and that it would be in their best interest to continue being in her physical custody. 202.In essence, 1st Defendant submitted that court should be persuaded that if a party abdicated her duties/parental responsibilities then the best interest of the child should be that they should be denied physical custody. 203.On the other hand, 2nd and 3rd Defendants filed submissions dated 24th June, 2026 which court considered. From the onset and as highlighted above, the 2nd Defendant was barred by the high court with regards to matters guardianship, this court takes note and complies accordingly. It must however be noted that the Attorney General was sued too and the state responded and took a stand on this matter. This court notes the position held by the Attorney General and independently reads the same in exclusion of 2nd Defendant’s position with reference to guardianship. 204.Court notes the contents of the submission. They relied on Article 53(2) of the Constitution of Kenya, Section 8 of the Children Act and Article 3 of the United Nations Convention on the rights of the Child. That a child’s best interests are of paramount importance in every matter concerning the child. 205.Further, they relied in provisions of Section 103 of the Children Act concerning the principles that guide court in making custodial orders. 2nd and 3rd Defendants vouched for 1st Defendant. Court notes and disregards 2nd defendant’s guardianship prayer noting the High Court ruling that barred him. Besides, as earlier highlighted, 2nd Defendant was wrongly sued, does he have locus to make prayers? 206.The Attorney General relied in the case of Agatha v Azad & 3 others [2022] KESC 1 (KLR) where the Supreme Court reiterated that the best interest of a child is a key determining factor in a decision concerning children. Importantly, the Attorney General highlighted on the need to ascertain the wishes of the child. To this end, Attorney General relied in the case of Ramadhan Ali Athman v Peter Mwingo Chirima [2020] KEHC 10000 (KLR) where the High Court following the Court of Appeal decision held: 22.The ascertainable wishes of the children is a key consideration in making a custody order. The Court must however caution itself on the need to be objective bearing in mind both the short- and long-term interests of the children. In the case of J.O. v S.A.O. [2016] eKLR The Court of Appeal stated as much stated:“Section 83 (1) of the Children Act outlines the principles to be applied in making custody orders. They include the ascertainable wishes of the child. But as Njagi, J. held in B. K. versus E.J.H. [2012] eKLR, “the test for the best interest of a child is not subjectively dictated by the selfish whims of a child. There has to be an element of objectivity. … a child’s wish to stay with a particular parent might not be in his best interest. In such a situation, his own preference may not be automatically allowed. The wishes and feelings of a child must therefore be treated with a lot of caution.” 23.When examined by the trial Court, the children were unanimous that they were happy at their grandmother’s home and wished to continue staying with her. The grandmother has been taking care of the children during the critical period of their mother’s illness and after her demise. The Court is being asked to remove the children from the loving care of their grandmother to live with a father who neglected and abandoned them and their mother in her illness; to remove them from a happy and loving home and place them in a hostile environment in the home of the Appellant with step mothers. This Court has objectively considered the ascertainable wishes of the children and finds that they are not dictated by selfish whims. To make an actual physical custody order in favour of the Appellant at this stage would most certainly militate against the short and long term interests of the children herein as safeguarded by Article 53(2) of the Constitution and Section 4 of the Act. 207.This court had an opportunity to examine the minor and in considering her views, this court sufficiently cautioned itself and applied Section 31 and Section 103 of the Children Act as the benchmark. This court’s test for her best interest were not subjective but objective as guided by the said sections and as highlighted earlier. With a lot of caution, this court weighed the minor’s views in comparison to other views held by witnesses. There is no doubt that the minor’s views were equally unanimous that she is happy at the 1st Defendant – Mrs. H. It was her strong wish that she continues staying with the 1st Defendant. Evidence and witnesses confirmed beyond any iota of doubt that 1st Defendant has been taking good care of the minor since her critical time of need (abandonment) to date. Now the Plaintiff is requesting that after 9 years of the minor staying with 1st Defendant, she be considered preferable as compared to the 1st Defendant. Court is being asked by the Plaintiff to remove the minor from the loving care of the 1st Defendant and that court orders the minor to go stay with the Plaintiff who by fact neglected her when the minor needed her most. As highlighted above, this court objectively considered the ascertainable wishes of the minor and find that they are not dictated by selfish whims. There in no doubt in this court’s mind that making an actual physical order in favour of the Plaintiff would without a doubt harm the best interest of the minor as safeguarded by Section 31 and Section 103 of the Children Act. It is not lost to this court that the Plaintiff has no record at all of ever caring and nurturing the minor. Not even Plaintiff’s testimony and exhibits demonstrated that she ever cared for Baby Z. As advised and held in the Ramadhan case, it is best for the Plaintiff to start by building her relationship with the child, she can start by enjoying visitation rights and providing for the minor. The contrary would mean that the minor be forced to accept a move from 1st Defendant to Plaintiff which will cause a greater rift between Plaintiff and the minor, such an order to say the least would not act in favour of the Plaintiff, it will simply push the minor further away. There is no doubt in this court’s mind that the minor made up her mind, to her it is not a matter of trial and error, she was firm that no matter what court says, her father and mother remain Mr. M and Mrs H. It is in this breath that the Attorney General prayed that court considers the short- and long-term interests of Baby Z. In this regard, there is no doubt in court’s mind that Baby Z must understand that she has brothers and sisters and other relatives. The short-term interest therefore would be to have Baby Z be introduced to her biological siblings M. A. J. O, N. H. J. H and the half biological sibling H. I. M. S. The long-term best interest is to prepare Baby Z for her 18th birthday when she will be independent both physically and legally. At the age of 18, she will by law be expected to make her independent decision. 208.It is not lost to this court that Section 102(3) of the Children Act enumerated persons who may be granted custody of a child. It is equally not lost to this court that there is no consent from the minor’s parents as the mother is deceased and the father is not known and ascertained. It is equally not lost to this court that on a balance of probability and consideration of Section 102(3)(c) of the Children Act, 1st Defendant has an upper hand having stayed with Baby Z for at least 8 years since birth, to say the least, 1st Defendant is the mother Baby Z has known since birth. Additionally, 1st Defendant has been tried and tested and the findings are that she has for the 8 years fulfilled the requirements of Section 31 and Section 103 of the Children Act. How then do the parties rank in relation to Rule 61 of The Children (Guardianship) (Practice And Procedure) Rules, 2024 NO. 159 OF 2024. Rule 61 of the Guardianship Rules 209.Court has at length analysed the facts and the law as above provided. It is now time to consider requirements of Rule 61 of the Guardianship Rules. Court is tasked by law that in considering whether to make a guardianship order in respect of a child, Court shall have regard to the views of the child, the applicant’s spouses if any, the person with actual custody of the child. 210.Court is equally to consider the importance of preserving the child’s existing family relationships, the importance of preserving the child’s particular social culture. Court is to consider the ability and willingness of the proposed guardian to effectively discharge the duties imposed on the proposed guardian. Lastly, Court is equally guided to consider the children officer’s report. To this end, court has weighed all these facets and analysed them at length as above provided. 211.There is no doubt that the Baby Z prayed to be allowed to stay with 1st Defendant – Mrs. HH. As per the documents filed by Mrs. H, it is clear that her spouse endorsed H’s application, this was also seen in the previous foster care applications. It is not disputed that since the minor was rescued, the 1st Defendant herein has had actual custody a factor which court takes note. 212.Court equally noted the importance of preserving the minor’s existing family relations. It is this court’s view that Baby Z’s best interest requires that she too gets to know her siblings and other relatives as this will greatly establish her family lineage and preserve her social cultural, religious and linguistic environment. 213.Further, as per the analysis above, this court has no doubt about the parties’ ability and willingness of the Plaintiff and the 1st Defendant. This court addressed this limb at length and found that Mrs. HH proved on a balance of probability that she was effective in discharging the parental responsibilities. 214.Last but not least, this court considered the input of the report and is convinced that Baby Z truly needs to cultivate relationship with her siblings and relatives as advised. This court reiterates that in analysing requirements in Rule 61 of the Guardianship Rule, it was guided by the Supreme court’s decision that the best interests of the child supersede those of the parties and must at all times be upheld – See MAK v RMAA & 4 others [2023] KESC 21 (KLR). 215.In weighing Rule 61, this court has equally considered the welfare of the minor. Further, this court has weighed that any such application for the custody of a minor must be supported by evidence, with material certainty that welfare of the minor shall be catered for – See Jasreen Kaur Pandher Vs Kabir Singh Chal Civil Appeal No. E223 of 2024 - Court of Appeal. Kiage, Tuiyott & Joel Ngugi, JJ.A. Court has considered all the aspects of this judgment holistically and of course noting that not a single factor is superior as compared to the other. It is equally not lost to this court that it is now trite law that in custody or relocation of a child, courts are not to rely on speculations about future contingencies that parties must at least on a balance of probability substantiate how they are to fulfil and meet the welfare issues of the minor and equally identify the likely benefits of relocating the minors – See Jasreen Kaur Pandher Vs Kabir Singh Chal Civil Appeal No. E223 Of 2024. 216.Notwithstanding absence of Baby Z’s father, this court has equally extended an olive branch to the father in line with the guidance in the case Deepa Sasikumar v Sasikumar AIR 2012 Ker 69. In this regard court has considered not to omit the father. But all said and done, this court has been guided by the welfare concern and guidance that welfare dictates that the person with the child should be given priority in custody of the minor – See Vegesina Venkata v Chintalpati AIR 1971. Additionally, this court has been guided by welfare position that provides that the person who was absent in the life of the minor be denied actual custody of the minor as in their absence the absentee acquiesced– See Parmeshwari v Empress 1928 ILR 23 Cal 290, Manjeet Singh v Bakhshish Singh AIR 1952 Punj 129, Kusa Parida v Baishnab Malik AIR 1966 Ori 60 and Lovejoy Patel AIR 1944 Cal 435. Equally, this court is guided that relatives to the minor do not enjoy preferential rights and that court must consider and determine the person who will best serve the minor’s best interest – See Satyandra Nath v B. Chakraborthy AIR 1981 Cal 701 ILR (1980) 1 Cal 727. 217.Last but not least, this court is guided that welfare and best interest of the child dictate that a person who abandoned the child is not entitled to the custody – See In Re W (1963) 2 WLR 1417 and in Krimov v Polishchuk (1939) 14 Sov Yust 70 and In re Saithri ILR (1891) 16 Bom 611 and in Beasant v Naryaniah AIR 1914 PC 41. Court is further guided by Plaintiff’s authority - J v C [1970] AC 1968. Lord Mc Dermott Interpreted the Guardianship of Infants Act 1925 that court must consider and weigh all relevant facts, relationships, parental claims, wishes, choices, and risk. Importantly, court is further guided by the case J v C that parental wishes do not override child welfare. Just as parental wishes do not override the welfare of the child, similarly, Plaintiff’s wishes cannot override the welfare of Baby Z. This court follows the case J v C and reiterate that the common law presumption that biological parents have a superior, absolute right of custody of a child was extinguished. In the same breath, if biological parents don’t have superior rights, it adds up too that as per the welfare of Baby Z, Plaintiff has no superior rights over Baby Z. 218.This Judgment will be incomplete if court fails to address the lack of professional ethics by some advocates in this matter. It is not lost to this court that advocates too are entitled to freedom of expression as guaranteed by Constitution of Kenya 2010. Question however is how far an advocate is allowed to go in exercising freedom of expression? The Supreme Court severally decried about the abuse of social media in legal practice. For the greater part of this case, I have seen the good and bad of litigation practiced in the social media. It goes without saying, cases are won through facts and the law, the online bulling and vilification of Court will never win cases. To High Court, Court of Appeal and Supreme Court, please brace yourself for some online vilification. But all is not lost, I kept the faith, you too shall keep the faith no matter the social media attacks. 219.In the end, to enable the minor access her siblings, the Plaintiff and the 1st Defendant, and inconsideration or the above legal positions, it is prudent to appoint both Plaintiff and 1st Defendant as joint guardians in line with Rule 10 of The Children (Guardianship) (Practice and Procedure) Rules, 2024 NO. 159 OF 2024. The 1st Defendant shall however retain actual custody of Baby Z. Costs. 220.Court noted parties’ submissions on costs. It is settled law that costs follow the events, this is however a children’s matter where the best interest of the child dictates that a cordial relationship be established and maintained by parties. It will therefore not be in order to penalize a party with costs. Consequently, each party shall bear own costs. Final disposition 221.The final disposition therefore is as follows. Guided by the facts, the law, parens patriae, paternalism and the welfare of the minor, court directs that:-a.Legal guardianship of Baby Z (the minor herein ) is jointly granted to Plaintiff – Mrs. K and Mrs. H until the minor attains the age of eighteen (18) years.b.Mrs. HHA – 1st Defendant shall have actual custody of the minor.c.Both Plaintiff – Mrs. K and Mrs. H shall have legal custody of the minor. Plaintiff – Mrs. K shall have visitation rights (this includes Baby Z’s siblings who shall equally have visitation rights to enable them maintain their relationship with the Baby Z subject to the best interests of the child )d.The 1st Defendant – Mrs. HH is authorized to make all decisions concerning the child’s education, medical care and external welfare in the best interest of Baby Z.e.The biological father of Baby Z is at liberty to approach the court for verification and authorization of reasonable access and visitation rights.f.Prayer for permanent injunction is denied.g.As to whether Baby Salma/R. M. M is one and the same person as Baby Z. M. A. I. Court found this to be an academic question.h.Each party to bear own costs. 222.Thus, says the law. It is so ordered. JUDGMENT DELIVERED ON 14TH AUGUST, 2026.BY HON. BARAKA XAVIER FRANCIS.In the Presence of: Court Assistant Mr. Ali.CounselMrs. Odiya for the Plaintiff.Mr. Ndong’ for the PlaintiffMr. Wanyoike for the 1st DefendantMs. Rita for the 2nd and 3rd Defendant.33 | Page