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High CourtDismissed

Originating Summons for Custody of F.O, A.O, H.O and O.A.Omari (Custody of Infants)

High Court of Kenya
15 October 1987
2,748 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant father brought an originating summons under the Guardianship of Infants Act (Cap 144) seeking custody of his four infant children aged 9, 8, 6 and 4, alternatively that they be made wards of the court, plus a temporary injunction restraining the mother from removing the two older children from Kajiado. The parents married under Muslim law in 1976; the father, a migrant worker in Kuwait, had left the mother and children at his mother's house. After marital breakdown and divorce by letter, the mother left Kajiado with the two younger children. The father alleged the mother led an immoral life and wished the children to live with his elderly mother and brother Ibrahim. Akiwumi Ag J rejected the morality allegations, disbelieving the father and his private detective, and found the father's true intention was to leave the children with relatives while he worked abroad. Applying section 17 of Cap 144 as construed in Abdul Rehman Bazmi v Sughra Sultana, the court held that the welfare of the infant, not parental rights under Mohamedan law, is paramount. Weighing home, parent substitute, parental ties, upheaval, conduct and wishes, the court found the mother overwhelmingly better placed. The father's application was dismissed with costs; custody of all four children was granted to the mother, with reasonable access to the father, monthly maintenance of Kshs 1,200 from the date of judgment and Kshs 600 per month retrospectively from April 1986 for the two younger children.

Key legal issues

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01

Whether the father's custody application should succeed

Holding

Dismissed; custody of all four children granted to the mother

Reasoning

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.

p. 4
02

Whether rights under Mohamedan law displace the welfare principle

Holding

No; they are not a matter the court can consider

Reasoning

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.

p. 3
03

Whether the mother's alleged immoral conduct disqualified her

Holding

The allegation was rejected as unsubstantiated

Reasoning

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.

p. 2
04

Access and maintenance

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Custody of all four children granted to the mother
  2. 2.Father's application for custody dismissed with costs
  3. 3.Father granted the right of reasonable access to the children
  4. 4.Father to pay the mother Kshs 1,200 per month for maintenance of the four children from the date of judgment
  5. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.