Originating Summons for Custody of F.O, A.O, H.O and O.A.Omari (Custody of Infants)
The bottom line
#Kenya's High Court ruled that a child's welfare—not religious or customary parental rights—decides custody, granting the mother custody and maintenance.
What this practically means
#Executive summary
#Key legal issues
#Whether the father's custody application should succeed
Dismissed; custody of all four children granted to the mother
Applying section 17 of Cap 144, the court weighed home, parent substitute, the children's need for parents, upheaval, parental wishes and conduct. The mother, who had always cared for the children, had her own adequate home and gainful employment; the father, a migrant worker, intended to leave the children with his elderly mother and brother.
Whether rights under Mohamedan law displace the welfare principle
No; they are not a matter the court can consider
Following Abdul Rehman Bazmi v Sughra Sultana, the court held that section 17 of Cap 144, like the 1959 Ordinance, makes the infant's welfare paramount and excludes parental rights under Mohamedan law from custody decisions.
Whether the mother's alleged immoral conduct disqualified her
The allegation was rejected as unsubstantiated
The court disbelieved the father's evidence and that of his private detective that the mother was living with a man called Geoffrey, finding the identification evidence ridiculous and the allegation improbable.
Access and maintenance
Reasonable access to the father; maintenance of Kshs 1,200 per month awarded prospectively and Kshs 600 per month retrospectively for the two younger children
Section 7 of Cap 144 empowers such orders. The court reasoned the children deserve more than the father gave his mother, given the higher cost of living in Nairobi.
Legal principles established
#- The welfare of the infant, not the right of either parent under Mohamedan law, is the paramount consideration in custody
- The Guardianship of Infants Act applies with full force to infants of Muslim parents
- Special weight must be given to the welfare of the infants in custody decisions
Court orders
#- 1.Custody of all four children granted to the mother
- 2.Father's application for custody dismissed with costs
- 3.Father granted the right of reasonable access to the children
- 4.Father to pay the mother Kshs 1,200 per month for maintenance of the four children from the date of judgment
- 5.Father to pay Kshs 600 for each complete month (and pro rata for part of a month) from April 1986 until judgment for maintenance of the two younger children
- Jurisdiction invoked
- Originating summons under the Guardianship of Infants Act Cap 144, sections 7 and 17
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Originating Summons for Custody of F.O, A.O, H.O and O.A.Omari (Custody of Infants)", Case Analysis (1987). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.