https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/333

MNM v RKK (Children's Case E1419 of 2024) [2026] KEMC 333 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEMC 333 (KLR) Republic of Kenya In the Nairobi Children's Court Children's Case E1419 of 2024 LA Mumassabba, PM July 22, 2026 IN THE MATTER OF THE CHILDREN ACT 2022 OF THE LAWS OF KENYA AND IN THE MATTER OF K.M.K.K.K.K,K.KK(MINORS) Between MNM Plaintiff and RKK Defendant Judgment 1.This is a custody and maintenance dispute concerning three minor children born of the relationship between the Plaintiff, Marion Naitore Muthee, and the Defendant, Richard Kuria Kinyanjui. The Plaintiff instituted these proceedings vide a Plaint dated 30th July ,2024 seeking actual and legal custody, care and control of the minors together with orders compelling the Defendant to contribute towards their maintenance, education, medical care and other necessities. 2.The Defendant opposed the claim and filed a Defence and Counterclaim seeking actual custody of the children, alleging that he is the more suitable parent to provide daily care and guidance. 3.In determining the dispute, this Court has considered the pleadings, the oral evidence of the parties, the documentary exhibits, the Children's Officer's Report, the Affidavit of Means, and the written submissions filed by both parties. Plaintiff's Case 4.The Plaintiff testified that she and the Defendant are the biological parents of the three minor children and that she was the primary caregiver during the marriage. She alleged that the marriage broke down due to the Defendant's physical, verbal and emotional abuse towards her and the children, forcing her to leave the matrimonial home in July 2023 for their safety. She stated that since separation she has solely catered for the children's needs, including caring for the youngest child who has autism and requires specialised therapy. Although there was a court order directing the parties to share school fees equally, she testified that the Defendant had made only minimal financial contributions. She therefore sought actual and legal custody of the children, supervised access for the Defendant, and orders requiring him to contribute equally towards school fees, medical expenses, food and other maintenance costs. She relied on the children's birth certificates, an OB extract, photographs and her Affidavit of Means, showing that she earns a net monthly salary of Kshs.32,932.50. 5.During cross-examination, the Plaintiff admitted that she had not produced medical evidence to support the alleged assaults, that the OB extract did not identify the assailant, and that she did not pursue criminal charges. She also conceded that she had no documentary evidence showing that the children's academic performance had declined after the separation. She nevertheless maintained that the children were safer in her custody and that the Defendant had failed to adequately provide for their upkeep. Defendant's Case 6.The Defendant denied all allegations of abuse, neglect and violence, maintaining that he had always been a loving and responsible father who actively participated in the children's upbringing by assisting with their education, daily care and spiritual welfare. He denied ever assaulting the Plaintiff or the children, pointing out that he had never been arrested or charged with any offence and that the Plaintiff had not produced credible evidence to support her allegations. Instead, he accused the Plaintiff of emotionally abusing him and alleged that she often left him to care for the children before secretly leaving the matrimonial home with them and thereafter denying him access. 7.The Defendant acknowledged that the youngest child has autism and expressed his desire to be actively involved in the child's treatment and upbringing. He testified that he earns about Kshs.38,000 per month and had continued supporting the children within his financial means. He urged the Court to dismiss the Plaintiff's claim and grant him actual custody, with structured access to the Plaintiff. 8.During Cross-Examination, the Defendant admitted that the youngest child requires specialised care and acknowledged that both parents bear equal parental responsibility. He also conceded that his financial contributions had not always been consistent due to financial constraints but maintained that he remained willing to support the children and share parental responsibility. 9.The Court considered the Children's Officer's Report, which established that the three children currently reside with their mother, have settled well in their present environment, are attending school, and are generally well cared for while maintaining emotional bonds with both parents. The report noted that the youngest child has autism and requires continuous therapy and specialised care. Although the Defendant expressed willingness to remain actively involved in the children's lives, the Children's Officer concluded that the history of domestic conflict and the need for stability made it in the children's best interests to remain in their mother's physical custody. The report therefore recommended that physical custody remain with the mother, joint legal custody be exercised by both parents, school fees, maintenance and medical expenses be shared equally, the Defendant be granted structured access, and both parents cooperate in making decisions affecting the children's welfare. The Court noted that while these recommendations are persuasive, they are not binding. 10.The Plaintiff also relied on her Affidavit of Means, which disclosed that she earns a gross monthly salary of Kshs. 49,380.00 and a net salary of Kshs.32,932.50 after statutory deductions and loan repayments. She stated that this income is her only source of livelihood and is used to meet both her personal expenses and the children's daily needs. She therefore urged the Court to order the Defendant to bear an equal share of parental responsibility in accordance with Article 53(1)(e) of the Constitution and Section 31 of the Children Act. 11.Having considered the Pleadings and the evidence adduced by both parties, the Court will next examine the parties' written submissions, identify the issues arising for determination and thereafter analyse the applicable law before arriving at its findings. Plaintiff's Written Submissions 12.The Plaintiff submitted that she had proved her case on a balance of probabilities and urged the Court to grant her actual and legal custody, care and control of the three minor children. She argued that the evidence before the Court established that she had been the children's primary caregiver both before and after the separation and had continued to provide them with a stable, secure and nurturing home environment despite receiving minimal financial support from the Defendant. 13.Counsel submitted that the Court had previously issued interim orders on 23rd January 2025 directing both parties to equally share the children's school fees and related educational expenses while granting the Defendant access to the children on alternate weekends. It was submitted that despite those orders, the Defendant had persistently failed to honour his obligations by neglecting to pay his share of school fees and other educational expenses. The Plaintiff further submitted that the Defendant had equally failed to exercise his visitation rights, explaining that he lacked suitable accommodation and furniture necessary for the children's stay during access periods. Consequently, the Plaintiff contended that she had shouldered almost the entire financial and parental responsibility for the children. 14.The Plaintiff relied on Article 53(1)(e) of the Constitution of Kenya, 2010, which guarantees every child the right to parental care and protection and imposes equal responsibility upon both parents whether married to each other or not. She further relied on Section 31 of the Children Act, 2022, submitting that parental responsibility encompasses the obligation to provide children with education, medical care, shelter, clothing, food and general welfare. She therefore urged the Court to compel the Defendant to contribute equally towards the children's school fees, educational expenses, medical costs and other maintenance expenses. 15.On the question of custody, the Plaintiff relied on Section 103 of the Children Act, 2022, arguing that the Court's primary consideration should always be the best interests of the child. Counsel submitted that the evidence demonstrated that the children had continuously resided with the Plaintiff and had adjusted well to their current environment. It was further submitted that the children preferred remaining with their mother, having previously lived in what was described as a hostile and abusive home environment. 16.The Plaintiff argued that the allegations of domestic violence had not been effectively rebutted and maintained that exposing the children to further conflict would not promote their emotional wellbeing. It was further submitted that the Defendant himself admitted during the proceedings that he intended to undergo therapy, an indication, according to the Plaintiff, that he was not presently best suited to assume primary custody. 17.Counsel further submitted that the three minors, aged approximately nine, six and three years respectively, are children of tender years. Reliance was placed on Kibageny -Vs- Republic [1959] EA 92, where the Court discussed the meaning of children of tender years, and Mehrunnissa -Vs- Parvez [1981] KLR 547, where it was held that custody of children of tender years should ordinarily be granted to the mother unless exceptional circumstances exist to justify a departure from that principle. 18.The Plaintiff therefore prayed for orders granting her actual and legal custody of the minors, granting the Defendant reasonable access and legal custody, and directing him to contribute towards school fees, educational expenses, medical care and maintenance in accordance with his parental responsibility. Defendant's Written Submissions 19.The Defendant submitted that the Plaintiff had failed to prove the allegations of violence, neglect and abuse levelled against him. He argued that the allegations remained mere assertions unsupported by credible documentary or medical evidence and that the Plaintiff had admitted during cross-examination that she neither produced medical reports nor pursued any criminal proceedings against him. 20.The Defendant maintained that he has always been a devoted father who actively participated in the children's upbringing. He submitted that throughout the marriage he helped prepare the children for school, assisted them with homework, attended church with them, fed them and generally remained actively involved in their daily lives. According to the Defendant, his proximity to his place of work enabled him to spend considerable time with the children each evening. 21.Counsel submitted that the Plaintiff was frequently absent from the family home due to her work commitments and that it was the Defendant who largely undertook the children's day-to-day care. The Defendant further alleged that it was the Plaintiff who destabilised the family by leaving the matrimonial home with the children without notice and thereafter denying him access to them. 22.The Defendant denied allegations of domestic violence and submitted that no evidence had been tendered to establish that he had ever been arrested, investigated or convicted for assaulting either the Plaintiff or the children. Counsel argued that the Court should not make adverse findings against him on the basis of uncorroborated allegations. 23.With regard to custody, the Defendant relied on Article 53(2) of the Constitution, Sections 8 and 103 of the Children Act, 2022, emphasizing that the best interests of the child constitute the paramount consideration in all proceedings affecting children. While acknowledging that courts generally award custody of children of tender years to their mothers, counsel argued that the principle is not absolute and may be displaced where circumstances demonstrate that another arrangement would better serve the children's welfare. 24.Reliance was placed on J.O. -Vs- S.A.O. [2016] eKLR, where the Court held that although custody of young children ordinarily rests with the mother, exceptional circumstances may justify awarding custody to the father where the children's welfare demands such an outcome. 25.The Defendant further submitted that both parents bear equal parental responsibility under Section 31 of the Children Act and urged the Court to direct both parties to contribute equally towards the children's education, medical expenses, maintenance and other necessities. Counsel cited CIN -Vs-JNN [2014] eKLR, in which the Court emphasized that both parents have a continuing obligation to support their children according to their respective abilities. 26.The Defendant consequently urged the Court to dismiss the Plaintiff's claim, allow the Counterclaim, grant him actual, physical and legal custody of the minors, accord the Plaintiff structured access, and direct both parties to equally share the financial obligations relating to the children's upkeep. Analysis and issues for determination 27.Having carefully considered the Pleadings, oral evidence, documentary evidence, the Children's Officer's Report, the Affidavit of Means and the Written Submissions filed by both parties, the Court is of the respectful view that the following issues arise for determination:1.Whether the Plaintiff or the Defendant should be granted actual custody, care and control of the three minor children.2.Whether the parties should exercise joint legal custody and parental responsibility.3.Whether the Defendant has failed to discharge his parental responsibility towards the minors and, if so, the extent of his financial obligations.4.Whether the Plaintiff established allegations of domestic violence or neglect to the standard required in civil proceedings and the effect, if any, of those allegations on the question of custody.5.What orders would best promote and protect the best interests of the three minor children as required by Article 53(2) of the Constitution and the Children Act, 2022.6.Who should bear the costs of the suit. 28.The Court will now proceed to analyse these issues in light of the applicable constitutional provisions, the Children Act, 2022, the evidence on record and the relevant judicial authorities before arriving at its determination. (ii) Whether the Plaintiff should be granted actual custody, care and control 28.The Plaintiff seeks actual custody of the three minors while the Defendant seeks custody through his Counterclaim. 29.The Court has considered the evidence presented by both parties. 30.There is no dispute that since the parties separated, the children have continuously lived with the Plaintiff. 31.The Children's Officer visited the Plaintiff's residence and observed that:a.the children are well cared for;b.they are attending school;c.they appear emotionally stable;d.the home environment is suitable;e.the youngest child continues to receive autism therapy. 32.The report ultimately recommended that physical custody remain with the Plaintiff. Although the report is not binding upon the Court, it carries considerable persuasive value because it was prepared after interviewing both parents and assessing their respective living conditions. 33.The Defendant urged the Court to disregard the Plaintiff's allegations of domestic violence on the ground that they were unsupported by medical evidence. 34.The Court agrees that the Plaintiff did not produce treatment notes, P3 Forms or medical reports confirming assault. During cross-examination she admitted as much. Likewise, the OB extract does not identify the alleged assailant. 35.Accordingly, this Court is unable to make a definitive finding that domestic violence was proved solely on the basis of the Plaintiff's testimony. 36.However, failure to prove physical assault does not automatically entitle the Defendant to custody. 37.Custody is determined not by punishing either parent but by examining the children's present welfare. 38.The evidence before Court demonstrates that:a.the children have lived continuously with the Plaintiff;b.they are settled in school;c.no evidence was produced that they are neglected;d.no evidence was produced showing that the Plaintiff is incapable of caring for them;e.the Children's Officer found the current arrangement beneficial to the children. 39.The Court must also consider the ages of the minors. 40.They are approximately nine, six and three years old. 41.These are children of tender years. 42.In Mehrunnissa -Vs- Parvez [1981] KLR 547, the Court held that custody of children of tender years should ordinarily be awarded to the mother unless exceptional circumstances exist. 43.The Court of Appeal reiterated the same principle in J.O. v S.A.O. [2016] eKLR, while emphasizing that the principle is not absolute and may be displaced where exceptional circumstances are demonstrated. 44.The Defendant alleged numerous matters against the Plaintiff, including emotional abuse, abandonment of the family and inappropriate relationships. 45.These allegations were strongly denied. 46.Most importantly, no independent evidence was produced demonstrating that the Plaintiff's conduct has endangered the children's welfare or rendered her unsuitable to exercise physical custody. 47.The Court therefore finds that no exceptional circumstances have been established to justify removing the children from the parent with whom they have continuously resided. 48.The Court consequently finds that it is in the children's best interests that actual custody, care and control remain with the Plaintiff. (iii) Whether legal custody should be shared 49.Although the parties' marriage has broken down, both remain biological parents of the children. 50.The Court has noted that throughout the proceedings the Defendant consistently expressed his desire to remain involved in the children's upbringing. 51.He acknowledged his parental obligations and indicated that he wished to participate in important decisions affecting the children. 52.The Plaintiff equally acknowledged that the Defendant should continue playing a role in the children's lives, provided the children's welfare is safeguarded. 53.The Court sees no justification for excluding either parent from making important decisions relating to education, health, religion and general welfare. 54.Joint legal custody encourages both parents to remain actively involved in the children's lives and is consistent with Article 53(1)(e) of the Constitution and Section 31 of the Children Act. 55.Accordingly, the Court finds that joint legal custody should be exercised by both parents while actual physical custody remains with the Plaintiff. (iv) Whether the Defendant should contribute towards maintenance 56.Article 53(1)(e) of the Constitution expressly provides that both parents have equal responsibility to provide for their children. 57.Similarly, Section 31 of the Children Act imposes parental responsibility upon both parents. 58.The Plaintiff produced an Affidavit of Means showing that she earns a net monthly salary of approximately Kshs.32,932.50 after statutory deductions and loan repayments. 59.The Defendant stated that his monthly income is approximately Kshs.38,000. 60.Neither party is unemployed. 61.Both have income. 62.The Court therefore rejects any suggestion that one parent alone should shoulder the children's financial needs. 63.The Court has particularly considered that:a.one child requires continuous autism therapy;b.education expenses are ongoing;c.medical costs are likely to increase;d.both parents are employed. 64.The Court further notes that although each party accuses the other of failing to contribute adequately, neither produced a comprehensive schedule demonstrating the precise amounts paid over the relevant period. 65.The evidence therefore does not justify imposing the entire burden upon one parent. 66.Instead, equity requires each parent to contribute according to his or her financial ability. 66.This approach accords with CIN -Vs- JNN [2014] eKLR, where the Court emphasized that parental responsibility is a continuing obligation shared by both parents. 67.The Court therefore finds that both parents should continue sharing:a.School fees;b.School-related expenses;c.Medical expenses;d.Autism therapy;e.Co-curricular activities; andf.Other extraordinary expenses equally unless otherwise agreed. 68.The Plaintiff shall continue providing the children's day-to-day accommodation, food and clothing while they remain in her actual custody, with the Defendant making an appropriate financial contribution toward those recurrent expenses. (v) Whether the Defendant should enjoy access 69.The Court is satisfied that it is in the children's best interests to maintain a meaningful relationship with both parents. 70.Nothing placed before Court demonstrates that the Defendant poses such a danger as to justify completely denying him access. 71.Indeed, the Children's Officer recommended structured access to preserve the parental relationship. 72.Accordingly, the Court finds that the Defendant should enjoy regular and structured access, including alternate weekends, half of the school holidays and reasonable telephone and virtual communication, subject always to the children's welfare and school programme. 73.Neither parent should alienate the children from the other parent or obstruct reasonable communication. Conclusion 74.Having carefully considered all the evidence on record, the documentary exhibits, the Children's Officer's Report, the Affidavit of Means, the oral testimony of both parties, and the written submissions filed herein, this Court is satisfied that the overriding consideration is the best interests of the three minor children as required by Article 53(2) of the Constitution and Sections 8 and 103 of the Children Act, 2022. 75.Although the parties levelled serious allegations against each other regarding the circumstances leading to the breakdown of their marriage, this Court is not called upon to determine issues of matrimonial fault. Rather, its duty is to ensure that the orders made promote the children's welfare, security, emotional wellbeing and healthy development. 76.The Plaintiff alleged that the Defendant subjected her and the children to physical and emotional abuse. While the Court appreciates the seriousness of those allegations, it notes that they were not corroborated by independent medical evidence or criminal proceedings. Consequently, the Court is unable to make a definitive finding that domestic violence was proved to the required standard. Nevertheless, the absence of such proof does not diminish the Court's obligation to consider the children's present welfare and stability. 77.The evidence demonstrates that since the parties separated, the children have continuously resided with the Plaintiff. The Children's Officer found that they are well cared for, attending school, emotionally settled and thriving within their present environment. The youngest child, who has autism, is receiving the specialised therapy and care required. There was no evidence that the Plaintiff has neglected the children or that their present living arrangements are detrimental to their welfare. 78.The Defendant equally impressed the Court as a parent desirous of remaining actively involved in the children's upbringing. He consistently expressed his willingness to provide financial support and to participate in their lives. The Court finds no reason to exclude him from exercising parental responsibility. Indeed, it is in the children's best interests that they continue enjoying the love, guidance and support of both parents. 79.The Court further notes that both parties are gainfully employed and possess the ability, albeit to varying degrees, to contribute towards the children's upkeep. Under Article 53(1)(e) of the Constitution and Section 31 of the Children Act, parental responsibility is a joint and continuing obligation which neither parent may abdicate merely because the relationship has broken down. 80.In the circumstances, the Court finds that maintaining the current physical placement of the children with the Plaintiff while ensuring meaningful involvement of the Defendant best serves the welfare of the minors. Disposition 81.Accordingly, Judgment is entered as follows:1.Actual physical custody, care and control of the three (3) minor children is hereby granted to the Plaintiff.2.Joint legal custody is hereby granted to both the Plaintiff and the Defendant. Both parents shall jointly make all major decisions affecting the children's education, healthcare, religion, travel and general welfare in accordance with Article 53 of the Constitution and the Children Act, 2022.3.The Defendant shall have reasonable and structured access to the children as follows:a.Alternate weekends from Saturday at 9.00 a.m. to Sunday at 5.00 p.m.;b.One-half of every school holiday, the dates to be agreed upon by the parties at least fourteen (14) days in advance;c.Reasonable telephone and electronic communication with the children at mutually convenient times; andd.Access during birthdays, public holidays and festive seasons as may be mutually agreed, and in default of agreement, the parties shall alternate such occasions annually.4.Neither parent shall obstruct, interfere with or frustrate the children's relationship with the other parent. Neither parent shall speak negatively of or alienate the other parent in the presence or hearing of the children.5.Both parents shall continue to exercise equal parental responsibility in accordance with Article 53(1)(e) of the Constitution and Sections 24, 26, 31 and 32 of the Children Act, 2022, and shall at all times act in the best interests of the children.6.The Defendant shall bear the primary responsibility for the children's education and shall meet, directly and promptly, all educational expenses, including:(a)All school fees payable directly to the respective schools;(b)Admission fees, tuition fees, development levies and all other mandatory school charges;(c)School uniforms;(d)Books, stationery, learning materials and educational equipment;(e)Examination fees;(f)School transport expenses;(g)Co-curricular and educational activities; and(h)Any other school-related expenses reasonably required by the schools.The Plaintiff shall notify the Defendant of all educational requirements in sufficient time to enable him to meet the same. The Plaintiff may voluntarily contribute towards the children's educational expenses if she so wishes, but such contribution shall not diminish or extinguish the Defendant's primary responsibility.7.The Defendant shall bear the primary responsibility for the children's healthcare and shall:a.Procure, maintain and pay for comprehensive medical insurance for all the children;b.Meet all medical, dental, optical, pharmaceutical and hospital expenses not covered by insurance;c.Cater for specialist consultations, prescribed medication, emergency treatment and hospitalisation;d.Meet the costs of therapy, assessments and all specialised treatment required by the youngest child on account of autism or any other medical condition; ande.Meet all other reasonable healthcare expenses incurred for the benefit of the children.The Plaintiff shall promptly notify the Defendant whenever medical treatment is required and shall ensure that the children receive appropriate medical attention whenever necessary. The Plaintiff shall be at liberty to enrol the children under any medical insurance scheme available to her or voluntarily contribute towards any medical expenses. Such enrolment or contribution shall not relieve the Defendant of his primary obligation to provide for the children's medical needs.8.The Plaintiff shall be responsible for providing the children's shelter and clothing and shall ensure that the children have suitable accommodation, a safe and stable home environment, and adequate clothing appropriate to their age, schooling and general welfare.9.The Plaintiff and the Defendant shall share equally, on a fifty per cent (50:50) basis, the children's food, nutritional, grooming and entertainment expenses. The parties shall cooperate in meeting these recurrent expenses in a timely manner and in the best interests of the children.10.Both parents shall keep each other informed of the children's educational progress, medical treatment and any significant matters affecting their welfare and shall cooperate in implementing these Orders.11.In view of the nature of these proceedings, each party shall bear his or her own costs.Before concluding, this Court wishes to remind both parties that although their relationship as spouses has broken down, their responsibilities as parents endure. The children are entitled to the love, affection, guidance and support of both parents. They should never be used as instruments of conflict or retaliation. The parties are encouraged to communicate respectfully and cooperate in implementing these orders, always placing the welfare and best interests of the children above their personal differences.Right of AppealAny party aggrieved by this Judgment has a right of appeal within thirty (30) days from the date hereof. ..............................L.A. MUMASSABBAPRINCIPAL MAGISTRATE22.7.2026JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 22ND DAY OF JULY,2026In the Presence of :Mr. Theuri for the PlaintiffM/s Gicheha for the DefendantCourt Assistant: Phoebe.