FG & another v OGM (Civil Appeal E025 of 2023) [2026] KECA 681 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed grandparents cannot block a suitable surviving father from custody by demanding dowry or customary rites.
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 High Court erred by setting aside the judgment of the trial court and placing the parental responsibility of the child upon the surviving parent
- 2.Whether placing the child in the custody of the surviving biological parent was in the best interest of the child
Key legal issues
#Scope of second appellate jurisdiction under section 72(1) of the Civil Procedure Act
The Court was bound by the findings of fact of the two courts below and confined itself to matters of law.
The Court invoked section 72(1) of the Civil Procedure Act and the Kenya Breweries Ltd v Godfrey Odoyo formulation, holding that a second appeal must be on matters of law and that the Court must resist delving into facts unless the courts below considered or failed to consider relevant matters, or the decision is perverse. The facts here were largely undisputed, so the appeal turned on the legal question of custody and parental responsibility.
Parental responsibility of an unmarried biological father under the Constitution and the Children Act
The Constitution and the Children Act place parental responsibility on the biological parents irrespective of marital status; custom cannot override the child's best interests.
Relying on Article 53 of the Constitution and sections 4(2), 6, 23 and 24 of the Children Act (2022), the Court held that parental responsibility attaches to the mother and father whether married to each other or not. The appellants' insistence on dowry and customary rites was inconsistent with the child's statutory and constitutional rights, which are paramount over custom.
Best interests of the child in a contest between maternal grandparents and the surviving biological father
The best interests of the child required that she be placed in the custody of her natural parent, as no evidence of the father's unsuitability was adduced.
Following LAC & Another v MJC, where maternal grandparents were pitted against a surviving father, the Court found the father suitable, financially stable and ready to assume full parental responsibility; the spouse had interacted with the child. Competing shows of love by grandparents and father must be complementary, and where they conflict, Article 53(2) makes the child's best interests paramount.
Legal principles established
#- A second appeal is confined to matters of law; findings of fact by the two courts below bind the second appellate court unless the decisions below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- Parental responsibility rests squarely on the mother and father of a child irrespective of whether they are married to each other, and custom or customary rites cannot override the best interests of the child.
- Where a parent is alive, suitable and willing, the best interests of the child generally require custody to vest in the surviving natural parent rather than third parties such as grandparents.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to meet their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (first appeal from the Children's Court, Kerugoya)
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeal limited to matters of law
Relief refused
#Appellants' prayer that custody remain with them and that a report on the child's current emotional, social and psychological situation be ordered before judgment
No evidence of the father's unsuitability; best interests of the child require custody by her natural parent
Costs
This being a family matter, we shall require each party to meet their own costs.
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.
Consequently, we find no merit in this appeal, which we hereby dismiss in its entirety.
This being a family matter, we shall require each party to meet their own costs.
the primary responsibility of a child is squarely placed on the mother and father of a child, irrespective of whether they are married or not, and this is devoid of any custom or customary rites
In a second appeal, however, such as this one before us, we have to resist the temptation of delving into matters of fact.
Issues in the judgment
#The judgment is styled as a copy certified by the Deputy Registrar; the coram lists 'ALI-ARONI' without a first name or initial, which may affect matching to the correct judge.
The case number of the appeal before the Court of Appeal is not stated anywhere in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FG & another v OGM (Civil Appeal E025 of 2023) [2026] KECA 681 (KLR)", Case Analysis (2026). Civil Appeal (second appeal from High Court at Kerugoya, Children's custody matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/681/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.