https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6319

KRK v MMG (Appeal E156 of 2024) [2026] KEHC 6319 (KLR) (Family) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6319 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Appeal E156 of 2024 PM Nyaundi, J May 8, 2026 Between KRK Appellant and MMG Respondent Judgment Background 1.Vide Memorandum of appeal dated 14th November 2024, the appellant herein challenges the ruling of the Hon. Elizabeth Muiru PM delivered on 18th October 2024 in Milimani Children’s Court Case no. 901 of 2019 and seeks orders that it be set aside/varied and appropriate orders be issued to the effect that the actual physical custody, care and control of the minors herin be bestowed upon the appellant. The Appellant also seeks costs of the appeal. 2.The appellant faults the Court for disregarding the reports of both the special needs officer and the children’s officer, who both recommended that custody of the children be vested in the appellant. Background 3.The parties are the biological parents of the Children subject to these proceedings. In the plaint dated 2nd July 2019, the appellant sought the following orders-a.The sole custody, care and control of the minorsb.That an injunction do issue restraining the defendant by herself, her servants and/ or agents from interfering, tampering, entering or being in close proximity with the plaintiff, the children, the plaintiff’s place of residence and his workplacec.Any other relief that this Court may deem fit to grantd.Costs of the suit 4.The respondent by amended defence dated 4th July 2019, sought the following orders-a.That the defendant be granted legal and actul custody, care and control of the childrenb.The plaintiff be ordered to provide school fees and other related costs.c.The plaintiff be ordered t provide adequate and consistent maintenance for the childrend.Any other relief that the court may deem fit to grant. 5.The matter proceeded to trial. Both parties called witnesses and gave evidence to support their claim that the other parent was unsuitable and that custody of the children was best in their hands. At the conclusion of the trial, the court, in its 16-page judgment delivered on 13th October 2023, directed that-a.The Plaintiff and defendant shall have joint legal custody of the minors.b.The physical custody of the children shall be shared equally during the school period. The plaintiff shall have the 1st two weeks in a month while the defendant shall have the 2nd half of the month. The same can be alternated. The changeover in custody to take place on Saturdays or in the alternative parties can agree on the modalities of the changeover, venue and time.c.The shared custody shall take effect upon the defendant’s relocation to a more conducive and permanent home. The defendant is granted two months from the date hereof or latest by January 2024 to relocate accordingly.d.In the meantime pending the defendant’s relocation the defendant shall continue to have access on alternate weekends during the school period.e.That while the children are in the custody of one parent the other parent is allowed reasonable phone access.f.The defendant is restrained from having the children interact with Pastor Wawerug.The defendant is restrained from applying anointing oil or any concoction on the childrenh.The minors shall practice Christian faith under the Roman Catholic Church while in custody of both parentsi.The school holidays shall also be shared equallyj.The plaintiff shall provide school fees, school related expenses and cater for the minors extra curricular activities expenses.k.Both parties shall provide shelter, food and clothing when the minors are in their respective custodyl.The defendant shall provide medical cover for the minors as provided by her employerm.There shall be no order as to costs this being a family mattern.Each party is at liberty to apply. 6.Following this judgment, the appellant filed a Notice of Motion dated 6th June 2024, seeking, inter alia, a review of the judgment to grant him sole physical and actual custody, care, and control of the minors. The respondent, for her part, filed a Notice to Show Cause dated 22nd May 2024, seeking a refund of school-related expenses she had paid. The Court, in a ruling dated 18th October 2024, dismissed both applications, thereby triggering the appellant's appeal. 7.The appeal was canvassed via written submissions. The respondent’s submissions are dated 28th January 2025 (sic). I have considered the submissions on record. Analysis and Determination 8.Since this is the first appeal, this Court is required, pursuant to section 78 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya), to examine the trial court’s record and the evidence before it to reach its own conclusion. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where the Court of Appeal set out the duties of a first appellate court as follows:[An appellate court] is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make]due allowance in this respect 9.Having considered the pleadings, submissions on record and relevant law, the issue for consideration is-a.Whether it is in the best interests of the Children to allow the appeal? 10.By constitutional and statutory mandate, this Court is required to place primacy on the Child's best interests. Article 53(2) of the Constitution provides, ‘A child’s best interests are of paramount importance in every matter concerning the child.’ 11.Section 8 of the Children Act requires that-(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.(2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity 12.Part II of the Children’s Act makes provision for the ‘Safeguards for the Rights and Best Interests of the Child’. Among the recognised rights is the right to Parental Care and Protection. Section 11 (1) provides, ‘Every Child has the right to parental care and protection’. In so providing, the law assumes that parents are best placed to be frontline providers and defenders of their children’s rights. Only in exceptional circumstances, therefore, will a parent be excluded from this responsibility. In fact, Section 32 of the Act provides-Subject to the provisions of theis Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock. 13.The appellant faults the Court for reaching a conclusion contrary to that of the Special needs assessor and the Children’s Officer. The Special needs instructor, in a report dated 30th May 2024, recommends that the Custody arrangement be revised so that the older child, who is autistic, spends the week with the appellant and has alternate weekends in each parent’s home. 14.The Children’s Services Officer’s report, dated 26th July 2024, observes that the children are thriving under the care and control of the applicant (appellant) and recommends that the appellant be granted physical and actual custody, while the respondent be granted access to both children. 15.The Learned Magistrate weighed the evidence against this report and formed the view that a basis had not been laid for her to review the judgement. Specifically, she pointed out that there was nothing to show that the children had been detrimentally affected by the shared custody arrangement, and that the fact that the respondent had an 8 am to 5pm job would not be relied upon as a basis for denying her custody. 16.I am inclined to agree with the trial court. The reports were opinions, and ultimately the Court had to exercise its discretion on the totality of the evidence. The fact that the respondent cannot match the appellant’s financial muscle cannot be used against her. The appellant’s deeper pocket does not tilt the scales in his favour. The respondent will also not be penalised for being a working mum who has to delegate some of her roles to taxi drivers and housekeepers. Sometimes efficiency is achieved when working parents outsource their roles. As emphasised by the Supreme Court in MAK v RMAA & 4 Others [2023] KESC 21 (KLR), in cases of this nature the interests of the child will always supersede those of the parents. 17.No basis having been laid to deny the respondent custody, care and control over the children, the appeal is hereby dismissed in its entirety. 18.I observe that one of the children, CWK is now over 18 years old, on account of the fact that she is a special needs child, I hereby extend parental responsibility in respect of CWK beyond her eighteenth birthday. 19.As this is a family matter there shall be no order as to costs. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF MAY 2026.P. M .NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantLiyala for Respondent