[2022] KEHC 15916 (KLR)

SIA v MH (Civil Appeal E027 of 2021) [2022] KEHC 15916 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15916 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E027 of 2021

JN Onyiego, J

November 11, 2022

Between

SIA

Appellant

and

MH

Respondent

(Being an appeal arising from the ruling and decree of Hon. L.K Sindani delivered on the 1st day of September 2021 in Tononoka Children’s Case No.12 of 2020 between Salma Islam Ali versus Mohammed Hassan Salmin)

Judgment

1. By way of a plaint, the appellant ( plaintiff before the trial court) moved to Tononoka children’s court on 14th January 2020 seeking various orders against the respondent( defendant before the trial court) her then husband as follows; an order directing the respondent to pay Kshs 86,500 towards the maintenance of the minor or alternatively Kshs 26, 500 monthly with the minor placed under a comprehensive medical cover; defendant be compelled to cater for the minor’s school fees and school related expenses as and when they arise; costs of the suit and any other relief the court may deem fit.

2. Upon service, the respondent entered appearance and filed defence on January 22, 2020 thus urging the court to dismiss the suit. Upon hearing the matter, the trial court delivered its judgment on April 12, 2021 ordering that;a.There be equal parental responsibility towards the children by the partiesb.Statusquo to remain. That status quo being that, the parties continue staying together as family with the children and contributing equally for the needs of the children.c.The Plaintiff is given30 days from the date of this judgment to refund the Defendant monies given to her for purposes of renting a house in town for the family to move close to the children’s school and/or to be refunded to the intended tenant to their matrimonial home and the family remains in the house’d.In the event that the parties separate then the following conditions to prevail. Legal custody to be jointly between the Plaintiff and the Defendant.

Actual custody to vest in the Plaintiff with the Defendant having unlimited access to the minors on alternate weekends and half school holidays.

The Defendant to cater for the children’s educational and medical needs wholly.

The Defendant to cater for clothing.

The Defendant to give Ksh. 5,000/= for food and the Plaintiff to top up on it.e.This being a children’s case there are no orders as to costs.

3. As fate would have it, after judgment, the couple parted ways and the appellant left with the children. Consequently, the respondent (defendant) moved the court vide an application dated June 8, 2021 seeking review of the judgment. He sought actual custody of the children on grounds that the appellant (plaintiff) had remarried and abandoned the children with her mother. The appellant denied the allegation and in fact maintained that she was still living with the children. As a consequence, the court ordered for a social inquiry report to ascertain the allegation.

4. The children officer’s report observed that the appellant had remarried and that she had no time for the children as she goes to work and leaves the children under the care of their grand- mother. That the children oscillate between their grand -mother and the plaintiff’s house where there is no furniture for the children to studycomfortably and that the use of drugs by the appellant’s fiancée would negatively affect the children as they evolve.

5. After arguing the application, the court observed that although it had granted actual custody of the children then aged 7 and 5years old to the mother, circumstances had since changed to warrant change of actual custody order of the children from the mother to the father. Among the grounds cited for variation of the orders was that the appellant had remarried and that her quarters were not suitable for raising the children.

6. Consequently, via its ruling dated September 1, 2021, the court made the following ordersa.Physical custody care and control of the children is hereby granted to the father/defendant effective the date of the ruling.b.The plaintiff/mother to have access to the children on alternate weekends and half of the school holidays.c.The defendant to cater for the children’s needs wholly and the plaintiff to be at liberty to supplement.d.Further, this court allows the notice to show cause dated 22/6/2021. She is however given 90 days within which to pay the said amount in instalments of Ksh. 10,000/= per month effective September 30, 2021. Failure of which warrants of arrest to issue.e.There be no orders as to costs.

7. Dissatisfied with the said ruling /decision the Appellant filed a memorandum of appeal dated September 2, 2021 citing the following grounds:a.The Learned Honourable Judge erred in fact in finding that the suit minors live with their grandmother.b.The Learned Honourable Magistrate erred in law in ordering that social enquiry be conducted on just the Appellant and her mother’s home and not that of the Respondent too.c.The Learned Magistrate erred in not acquainting herself with all the facts before giving her ruling.d.The Learned Honourable Magistrate erred in her evaluation and analysis of the evidence adduced and in not appreciating it properly, equitably, judiciously and sufficiently or at all and further erred in drawing the inference it did to come up with the ruling.e.The Learned Honourable Magistrate’s decision was discriminatory towards the Appellant herein without considering the home situation and/or the ambience of the Respondent’s home.f.The Learned Honourable Judge erred in her evaluation and analysis of the social enquiry report and the evidence adduced and relied on ambiguous reasons to rule in the favour of the Respondent.

8. When the matter came up for directions, parties agreed to dispose the appeal by way of written submissions. Mr. Obonyo appearing for the appellant filed his submissions on March 22, 2022. Learned counsel argued the 1st, 2nd and 3rd grounds of appeal together. According to counsel, the learned magistrate did not do due diligence in establishing the state of the children’s home. That the children were actually staying with the mother and her new husband and not their grand -mother as held by the court. It was submitted that leaving the children with their grandmother whenever the appellant was out for work does not amount to relegating parental responsibility to the mother.

9. Counsel questioned the rationale in the court ordering for asocial inquiry report with respect to the appellant’s home and not that of the respondent. That in so doing, the trial court was biased hence discrimination against the appellant. In his view, thechildren who are of tender age as a general rule should be granted to the mother. In that regard, the court was referred to the case of Martha Olela and another vs Jackson Obiera C.A. 16 of 1979.

10. Regarding ground four, counsel opined that the review application was meant to settle personal scores and that mere re-remarriage is not a sufficient ground to deny the appellant actual custody of the children considering that the respondent has also remarried. In Mr. Obonyo’s View, justice was not done as the law was not equitably applied yet the court in its main judgment had found that the appellant was suitable to take actual custody.

11. Touching on ground 5 and 6, counsel submitted that the best interests of the children who are of tender age would best be served if actual custody is granted to the mother. In that regard, the court was referred to several authorities inter alia; M.A.A vs ABS (2018) e KLR andJ.O. vs S.A.O (2016) e KLR.

12. On his part, the respondent filed his submissions in person on 21st April 2022. It was his submission that the appellant had abandoned the children with their grand- mother and 3rd parties hence not suitable. He relied on the social inquiry report to support the court’s ruling. That having taken a new husband, she is disqualified from having physical custody of the children. To support that position, the court was referred to the case ofJ.O vs S.A.O(supra).

13. Regarding the allegation of discrimination in assessing the appellant’s home alone, he contended that the appellant did not oppose the order for the social inquiry to be conducted by the children officer hence the court properly evaluated the report and applied it. He condemned the appellant’s conduct in denying him access to the children even when the order was in force.

Determination. 14. I have considered the record of appeal herein, grounds of appeal and submissions by both counsel. Issues that emerge for determination are; whether the court properly exercised its powers in reviewing its judgment; whether actual custody of a child of tender age should be taken away from the mother.

15. There is no dispute that the trial court was moved for review of its orders made in her judgment delivered on April 12, 2021. Under order 45 rule 6 of the Civil Procedure Rulesa court can review its orders if the applicant proves that there was discovery of any new matter or evidence that was not available after the exercise of due diligence when the decree was passed or order made; existence of mistake or error apparent on the face of the record application has been filed without undue delay or for any other sufficient cause. See Francis Njoroge v Stephen Maina Maina Kamore (2018) e KLR where the court emphasized on proof of the a foresaid elements.

16. In this case the court did find that there were sufficient grounds to warrant review of the subject orders. Under section 117 of the now repealed Children Act, a children court has powers from time to time to review, vary, suspend, discharge or revive an order affecting the wellbeing of a child. On the basis of the aforesaid provisions, the court had powers to review its judgment if sufficient reasons were established.

17. The grounds relied on for review of the orders were that circumstances had changed owing to the appellant’s remarriage and that the appellant was staying in a not so pleasant quarters. According to the hon. Magistrate these were exceptional circumstances to warrant denial of actual custody of the baby to the mother. It is trite that as a general rule, physical custody of a child of tender age should be awarded to the mother unless there are exceptional circumstances not to grant.

18. In the often quoted case of J.O. V S.A.O(supra) the court held that;“There is a plethora of decisions by this Court as well as the High Court that in determining matters of custody of children, and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new husband; where she is living in quarters that are in deplorable state; or where her conduct is disgraceful and/or immoral. See Sospeter Ojaamong v Lynnette Amondi Otieno, Civil Appeal No. 175 of 2006, Karanu v Karanu [1975] E.A. 18, Githunguri V Githunguri [1979] e KLR”

19. In the instant case, it is not in dispute that both parties have since remarried. In other words, none of the two is better than the other. I must however state that remarrying per se is not a sin nor a crime, after all, young people who divorce have to remarry and that does not mean that after re-marrying they automatically become bad parents or irresponsible. Before upholding the act of remarrying as a ground to disqualify a parent from enjoying actual custody over her or his child, the court must interrogate the extent to which the act of remarriage has affected the welfare or best interest of the child.

20. Whereas no parent has a superior right over the other when it comes to issues relating to children, children of tender age are treated specially when it comes to their physical custody by parents or any other person for that matter. Since both parents have remarried, what makes the respondent more special than the appellant? The trial court did not address this aspect hence leaning on one side to arrive at its verdict. Nothing adverse was placed before the court that since the appellant remarried children have either suffered in the hands of the step father or his relatives.

21. In my view, re-marriage per se does not automatically disqualify a mother or a father from assuming physical custody of her or his child. In this case, there was no evidence on the effect of remarriage of the appellant on the children. For those reasons, I am in agreement with Mr. Obonyo that that ground was not available for the court to use it as aground to disqualify the appellant from holding actual custody of the children.

22. Regarding the unpleasant accommodation, the court relied on the children officer’s report which stated that the family stays in a one bedroomed house which is well secured with a perimeter wall. That the house had no furniture. That the appellant works as an accounts clerk / administrator in a clearing and forwarding company. In her replying affidavit, the appellant stated that she was newly married and was in the process of relocating to a bigger house to comfortably accommodate the family. I think, from the time judgment was entered, parties parting and the review application made, it is possible that there could be interruption in life.

23. I do not think that staying in a one bedroom pe rse is bad for a modest Kenyan unless compared with another available option. In this case, we do not know what better life is on the respondent’s side since no comparative social inquiry was conducted on his side. I do not think it is in any deplorable condition save for the size to warrant variation of the orders.

24. As to the question of abandoning children with the grand-mother, the children officer’s report does not state that the grand mother is staying with the children but that children do pass through the grandmother’s home after school to a wait for their mother to pick them after work. In the circumstances, I do not think the children have been abandoned and left in the grandmother’s hands.

25. As regards the character of the appellant’s new husband chewing khat or Miraa hence a drug taker, we need to be objective. I take judicial notice that miraa is now a cash crop being grown in certain parts of Kenya and is being consumed openly in markets and homes. It has not been banned as a drug. It will be unfair to isolate certain categories of consumers and classify them as drug consumers.

26. It is trite that before making an order or decision on any matter affecting a child, the paramount consideration should be the best interest of a child. This is the spirit of article 53(2) of the constitution and section 8 of the children Act 2022. See also KKPM vs SWW (2019) e KLR where the court held that the best interests of a child are superior to the rights and interests of the parents. I am persuaded to believe that the parties herein are trying to settle personal scores using the children. The appellant should be given time to settle down after divorce. Subjecting children of tender age to the care of a step mother is also not easy especially when the biological mother is there and is able. Accordingly, I am not convinced that there were sufficient and compelling exceptional circumstances to warrant review of the judgment of April 12, 2021.

27. In view of the above finding, it is my holding that it is in the best interests of the children that review orders number 1, 2, and 3 in the ruling delivered September 1, 2021 be and are hereby set aside and the position to revert back to the implementation of the Judgment dated April 12, 2021. Accordingly, the appeal is hereby allowed only to the extent of actual custody orders. However, this order will be subject to review if circumstances demands.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF NOVEMBER 2022………………………….J.N.ONYIEGOJUDGE