SSG v SGR (Divorce Cause E028 of 2021) [2022] KEKC 165 (KLR)
The bottom line
#A Nairobi Kadhi's Court transferred custody of a child to her other parent after evidence showed mistreatment, confirming custody orders can change when circumstances do.
What this practically means
#Executive summary
#Key legal issues
#Whether grounds exist for review and variation of the custody orders of October 18, 2020
The application was merited; actual custody was varied to the defendant in the best interest of the minor, supported by an expert report and evidence of mistreatment.
The court found that review is a statutory power exercisable judicially, and that Order 162(1) of the Kadhis' Courts Rules 2020 gives the Kadhi's court wide discretion to revoke, review, suspend or vary orders concerning children upon proof of change of material circumstances. The paramount consideration is the child's best interest under Article 53(2) of the Constitution and Section 4(3) of the Children Act 2001, corroborated by Sharia principles and international instruments. Evidence of mistreatment and an expert report showed custody with the plaintiff was not in the child's best interest.
Which parent is best placed to ensure the best interests of the child
The defendant was found not to be an unsuitable parent; granting custody to the plaintiff would not serve the child's best interest.
The court applied the welfare principle as paramount, drawing on Article 53(1) & (2) of the Constitution, Sections 4(3), 82, 83, 84 and 85 of the Children Act 2001, Sharia principles in Ibn Qudama's Al-Mughni, and international instruments (UNCRC and ACRWC). Given the applicant's unchallenged affidavit evidence of mistreatment of the minor at the plaintiff's home, the court concluded the defendant was a suitable custodial parent.
Legal principles established
#- An order for review is a creature of statute which must be provided for expressly, and in considering review the court exercises its discretion judicially.
- The stringent rules for review under the Civil Procedure Rules do not strictly bind children's matters before Kadhis' courts; the Kadhi's court has wide discretion to vary custody orders in the best interest of the child.
- The welfare of the minor is ideally served where both parents are involved on a complementary basis, but where one parent is shown to lack the child's interest at heart, that view cannot be upheld.
Court orders
#- 1.Review and vary the judgment delivered on October 18, 2020 by allowing the defendant/applicant to have actual custody of GSG (minor).
- Jurisdiction invoked
- Rules 3, 5, 6 and 79 of the Kadhis' Courts Rules, 2020; Order 162(1) of the Kadhis' Courts Rules 2020; Article 53 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SSG v SGR (Divorce Cause E028 of 2021) [2022] KEKC 165 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/165/eng@2022-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.