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MagistrateDismissedNotice of Motion dated 25th September, 2024 (main suit number not stated in judgment)· [2024] KEMC 47 (KLR)
In re EKO (Minor) (Children's Case E005 of 2024) [2024] KEMC 47 (KLR)
Children's Court / Magistrates' Court at Maralal
15 November 2024
2,559 words in judgment
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·~10 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is an interlocutory ruling by Senior Principal Magistrate T. A. Sitati at Maralal Law Courts on a Notice of Motion dated 25th September 2024 by the plaintiff father seeking temporary actual physical custody of his four-year-old son so the child could receive urgent specialized medical treatment. The father alleged the mother, from whom he was separated, kept the sickly child at home and could not fund treatment, and that despite a parental responsibility agreement of 17th October 2024 under which he added the child to his medical cover, the child was missing treatment. The mother, in a detailed replying affidavit, demonstrated a history of hospital admissions for recurrent convulsions, her own fundraising for an MRI, and that the father refused to provide his ID card to authorize use of his medical insurance. The court framed a single issue: whether the father had made out a case on a balance of probabilities for temporary custody. Applying the best-interests principle under section 8 of the Children's Act 2022 and Article 53 of the Constitution, and the Court of Appeal authorities on custody of children of tender years, the court held the child was delicate, needed minimal disruption, and that shuttling him between parents over 900 kilometres apart was contrary to his welfare. Critically, the hardship resulted from the father's own refusal to authorize the insurance, invoking the maxim nullus commodum capere potest de injuria sua propria. The application was dismissed. The court ordered the father to secure a Gertrude's appointment within 72 hours under his insurance, the child to remain in the mother's custody with supervised father access during treatment, costs to abide the suit, and hearing on 21st November 2024.
Key legal issues
#01
Whether temporary actual custody should be granted to the father to enable specialized medical treatment
Holding
The application for temporary custody was dismissed; custody remains with the mother with structured medical access arrangements.
Reasoning
The court found the child, a boy of four with recurrent convulsions, delicate and in need of minimal disruption. The mother had been caring for him and obtaining treatment despite financial hardship. The hardship was directly attributable to the father's refusal to provide his ID for insurance authorization, and equitably he could not benefit from his own wrong. Shuttling the child between parents 900 kilometres apart would be disruptive. The court instead ordered the father to secure a medical appointment while the child remained with the mother.
p. 5
Legal principles established
#- In all actions concerning children the best interests of the child shall be the primary and paramount consideration
- Custody of children of tender years should ordinarily be with the mother absent exceptional circumstances
- No party shall take advantage of his own wrong (nullus commodum capere potest de injuria sua propria)
- Shuttling a sickly minor between litigating parents is disruptive and not in the child's best interests
Court orders
#- 1.The father shall within 72 hours of the order secure an appointment with a suitable Gertrude's Medical facility accredited under his medical insurance card located nearest to the minor and communicate the appointment date to the respondent's advocate
- 2.Upon receipt of the communication, the mother shall expeditiously present the minor for specialized treatment under the father's medical insurance card
- 3.The minor shall remain in the physical custody of the mother at all times, with the father retaining the right to see the child during the medical appointment under supervision of the nearest Children's Officer or medical officer
- 4.Costs of the suit shall abide the outcome of the suit
- 5.Hearing to proceed expeditiously on 21st November, 2024 as diarized
- 6.Right of appeal is 30 days; the main suit shall proceed as scheduled
- Jurisdiction invoked
- Not expressly stated; jurisdiction exercised under the Children's Act 2022 (best interests of the child, section 8) consistent with Article 53 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re EKO (Minor) (Children's Case E005 of 2024) [2024] KEMC 47 (KLR)", Case Analysis (2024). Notice of Motion dated 25th September, 2024 (main suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/47/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.