Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtDismissedCivil Appeal No 18 of 2019· [2020] KEHC 5806 (KLR)

CN v DMK

High Court of Kenya
20 May 2020
GOG V Odunga
5,153 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

A mother's claim to custody can be overturned if her actions demonstrate she is not prioritizing the child's best interests.

What this practically means

#

Executive summary

#
This was a first appeal to the High Court at Machakos (Odunga, J) against the judgment of E. Agade, SRM, in Kangundo Children Case No. 5 of 2017, in which DMK (the Respondent, father of two children aged 6 and 4) obtained custody of the children from CN (the Appellant, their mother) with access to her. The parties had cohabited without a formal marriage, living in Kangundo until July 2017 when the Appellant left with the children during school term, took them to her guardian in Voi without schooling arrangements, and went to Nairobi to seek work. The trial magistrate, applying Article 53(2) of the Constitution and sections 4(2), 81(1)(a) and 82(3)(a) of the Children Act, found exceptional circumstances - removing the children from school mid-term, abandoning them despite temporary custody, insulting the househelp in the children's hearing, and disobeying court orders - justifying departure from the prima facie rule that tender-age children be with their mother. On appeal, Odunga, J applied the first appellate court's duty to re-evaluate evidence (Selle v Associated Motor Boat Co; Peters v Sunday Post). He held that the child's best interests are paramount and the child's wishes are merely a factor, endorsed the tender-age maternal presumption while stressing it yields to exceptional circumstances, and agreed with Joel Ngugi, J's critique of gender stereotypes in JKN v HWN. He found the trial magistrate had sufficient material, that the children's wishes could be disregarded where best interests dictate, and that the further affidavit evidence was not fatal since natural justice was observed. He also held res judicata does not apply to children's matters, leaving parties free to seek variation upon changed circumstances. The appeal was dismissed with no order as to costs, each party bearing own costs, given the nature of the case as a children's matter.

Key legal issues

#
01

Whether the trial court properly departed from the maternal custody presumption

Holding

Yes - the Appellant's conduct (removing children from school mid-term, dumping them with a guardian while job-hunting, abandoning them despite temporary custody, insulting the househelp before the minors, disobeying court orders) constituted exceptional circumstances.

Reasoning

The court reviewed the trial magistrate's findings and found sufficient material to support the conclusion that the Appellant had not demonstrated that she had the children's best interests at heart. The prima facie rule favouring mothers of tender children applies only where all things are equal; the Appellant's conduct displaced it.

p. 5
02

Weight to be given to the children's wishes

Holding

The children's wishes are a factor but not determinative; they may be disregarded where the best interests of the children dictate otherwise.

Reasoning

The court distinguished between the interests of a child and the child's wishes, holding that a child's wishes may not be in his best interest. The Children's Officer's report showed the children were happy and free with the Respondent, so no serious hindrance existed to granting custody to the father.

p. 5
03

Admissibility of further evidence adduced by affidavit after the hearing

Holding

Not fatal, since the Appellant had an opportunity to controvert it and failed to do so, and natural justice was adhered to.

Reasoning

The court held that in children's matters, procedure geared to determining the child's best interest ought not to be treated as fatal to a just decision provided the rules of natural justice are adhered to. The Appellant was afforded an opportunity to respond to the further evidence but did not.

p. 5

Legal principles established

#
  • The best interests of the child are the paramount consideration in every matter concerning a child, and the child's wishes are merely a factor in determining those interests, not determinative of them.
  • The prima facie rule that children of tender age be placed in the mother's custody yields to exceptional circumstances, including conduct such as removing children from school mid-term, abandoning them, and disobeying court orders.
  • Res judicata does not apply to children's matters; parties may return to court upon a change of circumstances for variation of custody orders.
  • In children's matters, provided natural justice is adhered to, procedural deviations geared to determining the child's best interest are not fatal to a just decision.

Court orders

#
  1. 1.Appeal found to have no merit and dismissed
  2. 2.No order as to costs, each party bearing own costs, being a children's matter

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 53(2)
  • Children ActSection 4(2)
  • Children ActSection 4(3)(b)
  • Children ActSection 81(1)(a)
  • Children ActSection 82(3)(a)
  • Children ActSection 83

Cases cited (14)

  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123

    Duties of a first appellate court to reconsider and evaluate evidence while making allowance for the trial court's advantage.

  • Peters vs. Sunday Post Limited
    [1958] EA 424

    Appellate court's jurisdiction over findings of fact and the weight due to the trial judge's credibility findings.

  • Ephantus Mwangi and Another vs. Duncan Mwangi
    Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278

    An appellate court is not bound to accept findings of fact where circumstances or demeanour evidence were misapplied.

  • J.O. vs. R.M.M.
    Nakuru DC No.4/2004 [2005] KLR

    Definition of actual and legal custody.

  • JKN vs. HWN
    [2019] eKLR

    Child's wishes are not dispositive; critique of gender stereotypes in custody reasoning.

  • Re S (an infant)
    [1958] 1 All ER 783

    Prima facie rule that tender-age children should be with their mother absent sufficient reasons.

  • Githunguri vs. Githunguri
    [1979] eKLR

    Custody of very young female children to the mother absent exceptional circumstances; rule favouring the mother.

  • J.O. vs. S.A.O
    (2016) eKLR

    Exceptional circumstances displacing maternal custody: unsettled mother, new husband, deplorable quarters, disgraceful or immoral conduct.

  • Wambwa vs. Okumu
    [1970] EA 578

    Welfare of a female infant aged four demands care by its mother absent exceptional circumstances.

  • Re L (infants)
    [1962] 3 All ER 1

    Lord Denning MR: as a general rule it is better for little girls to be brought up by their mother.

  • Sospeter Ojaaamong vs. Lynette Amondi Otieno
    Court of Appeal Number 175 of 2006

    Exceptional circumstances: mother unsettled, has taken a new husband, or living quarters in deplorable state.

  • Martha Olela & Another vs. Jackson Obiera
    C.A 16 of 1979

    Exceptional circumstances include disgraceful conduct, immoral behaviour, drunken habit, or bad company.

  • A N M vs. P M N
    [2016] eKLR

    Res judicata is not applicable to children's matters as it is not expressly provided for in the Children's Act 2001.

  • Civil Appeal No. 36 of 2012

    Exceptions to the tender-age maternal custody rule (as relied on by the trial magistrate); parties not named in the judgment.

On appeal from
Senior Principal Magistrate's Court at Kangundo
Children Case No. 5 of 2017
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrate's Court at Kangundo (Children Case No. 5 of 2017)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "CN v DMK", Case Analysis (2020). Civil Appeal No 18 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/5806/eng@2020-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.