[2022] KEHC 18131 (KLR)

MAO v JDM (Civil Appeal E017 of 2021) [2022] KEHC 18131 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 18131 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E017 of 2021

GMA Dulu, J

September 19, 2022

Between

MAO

Appellant

and

JDM

Respondent

(From the decision in Wundanyi Children Case No. 10 of 2020)

Judgment

1. In a judgment delivered on March 21, 2021, the Magistrate court entered judgment as follows:-a.It is hereby authorized that the defendant shall have the custody, care and control of the minor subject however to the right of access herein granted to the plaintiff as properly described in the order No. (2) following.b.The plaintiff is hereby granted limited visitation rights but with reasonable access to their child as the defendant and the plaintiff might agree.c.The defendant shall meet all the needs of the minor.d.This being a family matter I find no need to make orders as to costs.For clarity, the children officer shall follow up and file a report to confirm compliance with the court order herein. Right of appeal within 28 days.

2. Dissatisfied with the decision of the trial court, MAO who was the plaintiff in the Magistrate’s court, has come to this court on appeal through counsel Mutinda & Wambua Nthiga Advocates on the following grounds: –1. The learned Magistrate erred both in law and fact in granting custody of the minor to the respondent without considering the ability of the respondent to take care of the minor.2. The learned Magistrate erred both in law and facts in failing to consider the ascertainable and best interests of the minor when making a decision of custody over the minor.3. The learned Magistrate erred both in law and fact in failing to take into account the Children Officer’s social enquiry report and evidence.4. The learned Magistrate erred both in law and fact in finding that among the three birth certificates of the minor bearing different names and dates of birth, the last to be issued was genuine and in effect.

3. The appeal was canvassed through written submissions. Though from the record, a notice was served on Mwanyumba & Company Advocates on March 27, 2023 for the respondent, they never appeared in court in this appeal nor did they file submissions. Thus the only submissions on record, are those filed by Mutinda & Wambua Nthiga Advocates for the appellant.

4. This being a first appeal, I have to be guided by the principle restated in the case of Selle &another vAssociated Motor Boat Company Ltd &others (1968) EA 123 wherein the Court of Appeal stated that:-“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must consider 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.”

5. At the trial the appellant who was the plaintiff called three (3) witnesses. They were PW1 the appellant herself, PW2 DWM, her husband and PW3 BA the Plaintiff’s sister. PW1 testified that she was the sister of the deceased mother of the subject (child). She testified that the respondent married the mother of the child statutorily, but he was not suitable to be granted custody and care of the child. The other two witnesses supported her position.

6. According to the appellant’s three witnesses, the respondent though married to the mother of the subject child who had been born before 2017 when the marriage between the deceased and the respondent occurred, the respondent was irresponsible and should not have custody of the child and that the appellant should assume such custody and care of the child.

7. On his part, the respondent testified as DW1 and called one witness DW2 AAO also a sister of the appellant, whose evidence was in favour of the respondent taking custody of the child.

8. According to DW1, he legally married the deceased, and even changed the name of the child to include his name as the father, with the consent of the late mother of the child who was his wife. He stated that he considered the child as his child and would care for him.

9. Having considered the evidence on both sides on record, the grounds of appeal, the written submissions filed by the appellant’s advocates and the law, I have to be guided by the provisions of Article 53(1) of the Constitution of Kenya which protects the best interests of the child above the interests of the contesting parties.

10. I have also to bear in mind the provisions of Section 4(2) of the Children Act which emphasizes that the primary consideration in matters affecting children is the best interest of the child, and not the interests of the contesting parties.

11. Just like the trial Magistrate, I find that though the respondent was not the biological father of the child, it is clear from the evidence on record that he legally married the mother of the child (now deceased) and treated the child as his own child, and even officially changed the name of the child to reflect himself as the father and had been educating him.

12. From the facts and circumstances of this case therefore, I see no basis of taking away the custody and care of this child from the respondent, who is a step father of the child. The appellant herein in my view, having been given visitation rights to the child by the court, can through the children officer, file complaints if any, in case of any neglect of parental responsibility by the respondent. The appellant not having done so cannot just come to this court on appeal, as the decision of the trial court was based on clear evidence on record.

13. I therefore find this appeal to be unmerited. I dismiss the appeal, but make no orders as to costs, as it is a family matter.

DATED, SIGNED AND DELIVERED THIS 19TH DAY OF SEPTEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred/Nusura – court assistantAppellant – in personMr. Mutinda – for the appellant – virtually