[2018] KEHC 8340 (KLR)

[2018] KEHC 8340 (KLR)

The High Court found that the child in question is of tender years and, absent exceptional circumstances, should remain in the custody of his mother. The Appellant failed to demonstrate that the Respondent's remarriage or potential relocation to Oman constituted exceptional circumstances or would adversely affect...

Source-derived case information.

Citation
[2018] KEHC 8340 (KLR)
Parties
Appellant: M A A; Respondent: A B S
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
2 February 2018
Case Number
Civil Appeal 32 of 2017
Procedural Posture
Civil Appeal / Ruling on Appeal Against Custody Orders From the Children's Court
Outcome
Appeal dismissed. Decision of the Magistrate upheld. Each party to bear own costs.
Judges
M Thande
Legal Topics
Child Custody, Best Interest of Child, Relocation of Child, Parental Rights, Tender Years Doctrine
Source Language
english
Family and Children Child Custody Best Interest of Child Relocation of Child Parental Rights Tender Years Doctrine

Source-derived case record

Summary, issues, holding and outcome

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Parties

M A A

Appellant

A B S

Respondent

Procedural Posture

Civil Appeal / Ruling on Appeal Against Custody Orders From the Children's Court

Legal Issues

  1. 1 Whether the learned Magistrate erred in granting actual physical custody of the child to the Respondent who has remarried and may relocate out of the court's jurisdiction.
  2. 2 Whether exceptional circumstances exist to deny the mother custody of a child of tender years.
  3. 3 Whether the best interest of the child was properly considered in the custody determination.

Ratio Decidendi

The High Court found that the child in question is of tender years and, absent exceptional circumstances, should remain in the custody of his mother. The Appellant failed to demonstrate that the Respondent's remarriage or potential relocation to Oman constituted exceptional circumstances or would adversely affect the child's welfare. The court held that the best interest of the child is the paramount consideration, and there was no evidence that the Respondent was unfit or that the child's welfare would be compromised by remaining with her. The court also found that both parties had breached court orders and that the Appellant's apprehensions about the child's relocation and religious...

Court Disposition

Appeal dismissed. Decision of the Magistrate upheld. Each party to bear own costs.

Orders

  • The appeal is dismissed.
  • The decision of the Magistrate granting actual physical custody to the Respondent is upheld.