KBH v HMI (Civil Appeal E109 of 2022) [2024] KECA 172 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a father's custody of his child, ruling judges must never make custody orders when in doubt about the child's best interests.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Superior Court correctly applied the principles of the 'best interest of the child' and the 'tender age' principle
- 2.Whether the first appellate Court considered matters it should not have considered or failed to consider matters it should have considered or, looking at the entire decision, it is perverse
Key legal issues
#Whether the first appellate court properly applied the best interest of the child principle
The Superior Court failed to consider critical evidence, in particular the appellant's changed residence status (Class K permit, retirement and home in Mtwapa), and arrived at a wrong conclusion that he was unsuitable for custody.
The Judge disqualified the appellant on the basis that he was on a tourist visa and working in Iraq and Afghanistan, contradicting the uncontradicted evidence of retirement, Class K residency status, a constructed home and documentary proof. The best interest analysis under Article 53(2), section 4(3) of the Children Act and MAK vs. RMAA requires consideration of all the enumerated factors; incomplete consideration of the circumstances vitiated the custody determination.
Whether the custody order was valid where the judge expressed doubt
Section 95(1) of the Children Act is in mandatory terms; a court in doubt whether its order is in the child's best interest must not make the order. The judge's 'heavy heart' remark evidenced doubt, rendering the order bad in law.
The Superior Judge made conflicting conclusions – finding both parties unsuitable yet awarding custody to the mother with a warning and expressing that he gave custody 'with a heavy heart'. These internal contradictions demonstrated doubt as to the child's best interest, contrary to the mandatory statutory caution under section 95(1) of the Children Act No. 29 of 2022.
Whether the Court of Appeal could interfere with the concurrent custody findings
Although a second appeal is confined to matters of law, the first appellate decision was plainly wrong and bad in law, warranting interference.
The Superior Court itself described the respondent as a vexatious litigant of bad morals, violent and aggressive, with no respect for authority, yet gave her custody of a child of tender years. Given the child's critical age of 6 years and the need for a stable environment, the decision failed the threshold of a conclusion a reasonable tribunal could reach, and the trial court's judgment was properly reinstated.
Legal principles established
#- In a second appeal, the Court confines itself to matters of law and will not interfere with the decisions of the trial and first appellate courts unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which is the same as holding the decision bad in law.
- The best interests of the child is a constitutional principle of paramount importance, and where a court is in doubt whether an order it intends to make concerning a child is in the child's best interest, it must not make that order.
- Failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court, resulting in a wrong conclusion, is a point of law.
Court orders
#- 1.The judgment of the High Court delivered on the 21st October 2022 by Onyiego, J. in Msa Family Appeal No. E010 of 2022 and all its consequential orders be and is hereby set aside
- 2.The Judgment and orders of Hon. Lucy Sindani delivered at Mombasa Tononoka Children Court Children Case No. 435 of 2019 delivered on 21st February 2022 be and is hereby reinstated
- 3.Legal custody of the child to be joint between the parties
- 4.The defendant (appellant) to have physical/actual custody of the child while the plaintiff (respondent) to have physical supervised access on alternate weekends at Mtwapa Police Station gender desk from 11.00 a.m. to 3.00 p.m.
- 5.The plaintiff (respondent) allowed continued virtual access on days she has no physical access, on conditions of peaceful conduct
- 6.The supervised access regime to run for one year, with liberty for either party to apply for review of access
- 7.The defendant (appellant) to provide for the child fully, with the plaintiff (respondent) at liberty to chip in at any time
- 8.Neither party allowed to leave the jurisdiction of Kenya with the child without the other's consent or a court order until the child is 12 years old
- 9.The defendant's (appellant's) passport deposited in court to be released to him
- 10.Prayers f, g, h and i of the defendant's counterclaim dismissed
- 11.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Family Appeal No. E010 of 2022
- Jurisdiction invoked
- Second appeal to the Court of Appeal under section 72(1) of the Civil Procedure Act, confined to matters of law
Relief refused
#The appellant's counterclaim prayers in respect of the Mtwapa property (Kilifi/Mtwapa/2895) – trust, injunction and account
The Children's Court lacked jurisdiction over the property dispute
Prayers f, g, h and i of the defendant's counterclaim
Dismissed by the trial court and reinstated dismissal
Costs of the appeal
The case was brought on behalf of the minor
Costs
Each party to bear their own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The judgment of the High Court delivered on the 21st October 2022 by Onyiego, J. in Msa Family Appeal No.E010 of 2022 and all its consequential orders be and is hereby set aside;
The Judgment and orders of Hon. Lucy Sindani delivered at Mombasa Tononka Children Court Children Case No. 435 of 2019 delivered on 21st February 2022 be and is hereby reinstated.
This being a case brought on behalf of the child minor, each party do bear their own costs of the appeal.
That provision is given in mandatory terms that if a Court is in doubt whether an order it intends to make is in the best interest of the child, it ought not to make the order.
…In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
Issues in the judgment
#The judgment inconsistently numbers/names the trial case as Tononoka Children's Case No. 435 of 2019 in places and 'TCC No. 433 of 2019' in the second-appeal framing
The judgment inconsistently dates the trial court's judgment as 21st February 2022 in one passage and refers to the order of Hon. Sindani as 2nd February 2022 in another
The judgment dates the High Court decision as both 22nd October 2022 in the narrative and 21st October 2022 in the quoted order and final orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KBH v HMI (Civil Appeal E109 of 2022) [2024] KECA 172 (KLR)", Case Analysis (2024). Civil Appeal (Family) – appeal from Mombasa Family Appeal No. E010 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/172/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.