[2016] KEHC 3779 (KLR)
The court held that the biological father, as the person with parental responsibility under the Children Act, is entitled to legal custody of the child unless there is evidence he is unfit or unable to care for the child. The grandmother's claim based on Luo customary law and the demand for bride price could not...
Source-derived case information.
- Citation
- [2016] KEHC 3779 (KLR)
- Parties
- Appellant: M A O; Respondent: M O; Respondent: B O
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 15 of 2016
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with modified orders
- Judges
- DAS Majanja
- Legal Topics
- Child Custody, Best Interests of Child, Parental Responsibility, Visitation Rights
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
M A O
Appellant
M O
Respondent
B O
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the biological father is entitled to custody of the child over the grandmother.
- 2 What arrangement serves the best interests of the child in the circumstances.
- 3 Whether the grandmother is entitled to retain custody until certain customary conditions are met.
Ratio Decidendi
The court held that the biological father, as the person with parental responsibility under the Children Act, is entitled to legal custody of the child unless there is evidence he is unfit or unable to care for the child. The grandmother's claim based on Luo customary law and the demand for bride price could not override the statutory framework prioritizing the child's best interests. The court found no evidence that the father was incapable or irresponsible. However, recognizing the child's established relationship with the grandmother and the need for a gradual transition, the court ordered a phased custody arrangement, with the grandmother retaining physical custody for a defined...
Court Disposition
appeal dismissed with modified orders
Orders
- The child, F O, shall remain in physical custody of the grandmother, M A O.
- The father, M O, shall have legal custody of the child and shall be consulted on the child's welfare, maintenance and upkeep.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CIVIL APPEAL NO. 15 OF 2016
BETWEEN
M A A ……………………………….........…......……… APPELLANT
AND
M O …….…………………….…....…..…………1ST RESPONDENT
B O …………………………………………....…2ND RESPONDENT
(Being an appeal from the Judgment and Decree of Hon.T. Obutu, PM dated 19th November 2015 in Kisumu Chief Magistrates Children’s Case No. 8 of 2014)
JUDGMENT
1. The matter arises from an appeal where the subordinate court gave custody of the child, F O, to the biological father, M O, the 1st respondent. The appellant, M A O, who is the child's grandmother, had sued for legal custody of the child. She is dissatisfied with the court’s decision dismissing her claim and ordering her to return the child to the 1st respondent.
2. Before hearing the appeal, I directed the parties to appear before me and see whether an amicable solution could be reached in the best interests of the child. What emerged from the discussions was that the child was born out of a union between the 1st respondent and the appellant's daughter now deceased. The child was left with the appellant upon the death of his mother thereafter the appellant applied for legal custody of the child. The appellant did not deny that 1st respondent was the father and was entitled to custody, she asserted that according to Luo customary law she had to be paid bride price before she could release the child to him. She also stated that the child did not know the father and was a stranger to him and thus it was not in his best interest to be with his father.
3. The learned magistrate held that the father was entitled to custody as he was the biological father and that he was the person with parental responsibility under section 24 of the Children Act. He also found as a fact that the appellant had not demonstrated that the 1st respondent could not take care of the child. He noted that, “Being a boda boda operator does not mean that he is irresponsible or in any way not able to take care of his own child.” I do not find any fault with these findings and I affirm the same.
4. Since the child had been in the custody of the appellant, I commissioned the Children's officer to examine the circumstances of the parties and file a report. The report filed on 1st August 2016 confirmed the following:
a) The child had been living with his grandmother and was enrolled in school.
b) The child had never lived with the father and when informed this decision he kept crying and was not willing to talk to anyone.
c) That according to her observation, the child may have been influenced by the grandmother to be hostile to the father.
d) During the discussion, the father told the officer that he was ready to take care of the child and nurture him.
5. After considering the report, I directed that the child should be handed over to the father in presence of the court for one weekend, from 5th August to 7thAugust 2016. The handing over had to be enforced by the Children Officer and police officers. Nevertheless, the child stayed for the weekend with the father and when the matter was mentioned on 15th August 2016, the child appeared to have no problem with his father.
6. At the heart of this case is what is the best interests of the child. In my view the best interests of the child require that he be given an opportunity to know his father and to establish a relationship with him. One must not lose sight of the fact that the child has been living with his grandmother for his whole of his life and he is now enrolled in school. He needs some time to get used to his father. I think this process needs to be gradual in order to ensure that the child's life is not disrupted in a negative way. I add here that in making its decision the subordinate court noted that the appellant can only get visitation rights. In a situation where the parties are hostile to each other it is proper the court to define access in a structured manner that accommodates each parties demands while paying attention to the best interests of the child.
7. I therefore dismiss the appeal but for the reasons I have set out above, I order as follows:
(a) The child, F O, shall remain in physical custody of the grandmother, M A O.
(b) The father, M O shall have legal custody of the child and shall be consulted on the child's welfare, maintenance and upkeep.
(c) The 1st respondent M O shall take the child every alternate weekend from the date hereof on Saturday at 8. 00 am. and return the child to the appellant at 5. 00 p.m. in the evening on Sunday.
(d) This arrangement shall remain in force until the end of December2016 whereupon the M O shall have full legal and physical custody of M O
(e) The Children's Court shall issue further orders upon examination of the parties including granting access to the appellant herein.
(f) This matter is referred back to the Chief Magistrate's court, Kisumu to monitor the orders and shall be mentioned on 12th September 2016 in that court.
(g) There shall be no order as to costs.
DATEDandDELIVEREDat KISUMU this 15th day of August 2016.
D.S. MAJANJA
JUDGE