FAS v FAE & another (Divorce Cause 07 of 2015) (Family) [2022] KEKC 148 (KLR)
The bottom line
#A Nairobi Kadhi's Court dismissed a father's bid to review custody access orders, ruling that wanting different terms is grounds for appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Grounds for review under Order 45 CPR and Rule 79(1) KCPPR 2020
The applicant failed to demonstrate discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason; his submissions amounted at most to grounds of appeal
The court set out the three grounds in Order 45 and the fourth added ground (clarification) under Rule 79(1) KCPPR. It found the applicant's submissions heavy on what would qualify as grounds of appeal but thin on evidence of any error or new material. Relying on Pancras T Swai v Kenya Breweries Ltd, an erroneous conclusion of law or evidence is a ground for appeal, not review.
Review of custody and access orders under Rule 162 KCPPR 2020 and the best interests principle
Although the KCPPR 2020 envisages unlimited review of children's custody and maintenance matters, the applicant had to show the review was based on the child's best interests and credible proof of material change of circumstances
Rule 162(1) permits the court at any time to revoke, review, suspend or vary orders concerning the status of children or financial provisions, and Rule 162(2) permits rescission or variation upon proof of change of material circumstances. The only material change identified was the child's age and maturity, which the applicant failed to demonstrate reflected the child's wishes.
Weight to be given to the wishes of a child of discernment under Islamic law and section 76(3) of the Children's Act
A child above the age of discernment may in principle choose her preferred custodian, but the choice must be tested against her best interests, and the court must have regard to her ascertainable feelings by age and understanding
The court relied on classical Islamic authorities (Ibn Qudamat al Maqdisy in Al Mughni; Al Shaukany in Nail al Awtar; Ibn Qayyim on considering the child's best interest before resorting to lots or choice) and on section 76(3) of the Children's Act cap 141. It held the parties should have requested that the child be called to inform the court of her wish, which may still be considered on application by either party.
Legal principles established
#- A wrong application of law or a wrong finding of fact does not qualify as a ground for review; it may only qualify as a ground of appeal
- Review of children custody and maintenance orders requires demonstration that the review is predicated on the best interests of the child and credible proof of material change of circumstances
- Under Islamic law a child who has attained the age of discernment may choose her preferred custodian, but that choice must be tested against the child's best interests
Court orders
#- 1.The applicant's Notice of Motion dated October 18, 2021 is dismissed with costs
- Jurisdiction invoked
- Review jurisdiction under Order 45 of the Civil Procedure Rules and Rules 79(1) and 162 of the Kadhi's Court (Practice and Procedure) Rules, 2020, in a children's custody and access matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FAS v FAE & another (Divorce Cause 07 of 2015) (Family) [2022] KEKC 148 (KLR)", Case Analysis (2022). Not stated in judgment (Kenya Law case No. 239815). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/148/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.