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MagistrateAllowedNotice of Motion dated 14/10/2024 (suit number not stated in the judgment)

RKP (Suing on behalf of AWS - Minor) v SW (Children's Case E005 of 2024) [2024] KEMC 76 (KLR)

Principal Magistrate's Court
27 November 2024
LML. K. MWENDWA
1,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a 2-year-old's mother temporary custody, holding the father must prove exceptional circumstances to defeat the tender years doctrine.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 14 October 2024 in a maintenance cause before the Principal Magistrate's Court at Mutomo, in which the plaintiff (mother) sought temporary custody of her 2-year-old son, AWS, from the defendant (father), with supervision by the Children's Department at Mutomo. The parties were never married but cohabited and had a child; they separated when the child was about three months old. The applicant deposed that the respondent disappeared with the minor in April 2024 without her consent, that the child was left in the care of the respondent's mother, and that she was denied access. The respondent admitted having custody since April 2024, asserted the applicant had visited and supported the child freely, claimed she consented to the arrangement, and said he feared she might relocate the child, but adduced no evidence of her unfitness. The court framed the issue as which parent was entitled to interim custody. Relying on Article 53 of the Constitution and the Children's Act, the court affirmed the applicant's locus standi and applied Section 103(1) factors and the Supreme Court's guidelines in MAK v RMAA. Because the child is of tender years, the doctrine of tender years applied, placing custody with the mother absent exceptional circumstances; the respondent's unsubstantiated relocation fears did not qualify. The court granted the mother actual physical custody pending the hearing and determination of the maintenance cause, ordered the father to surrender the child, granted the father unlimited reasonable visitation, continued the 23 October 2024 order on 50:50 sharing of medical needs, shelter, clothing and food, and directed the Mutomo Sub-County Children's Department to supervise enforcement. Each party was to bear their own costs. The application dated 14/10/2024 was found merited and allowed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Who between the Applicant (mother) and the Respondent (father) is entitled to custody of the minor aged 2 years pending hearing of the main cause
  2. 2.Whether any exceptional circumstances exist to deny the mother custody of a child of tender years

Key legal issues

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01

Custody of a child of tender years between unmarried biological parents

Holding

Custody granted to the mother as no exceptional circumstances were established to displace the doctrine of tender years

Reasoning

Both parents have equal rights under Article 53. The court considered the Children's Act, 2022 factors and the Supreme Court's custody guidelines in MAK v RMAA. The minor is aged 2, hence of tender years, so custody falls to the mother unless exceptional circumstances exist. The father's unsubstantiated fear that the mother might relocate with the child did not qualify as an exceptional circumstance, so the best interests of the child favour the mother having actual physical custody.

p. 5
02

Locus standi of a parent to institute proceedings for enforcement of a child's rights

Holding

A parent has locus standi under Section 29(2)(a) of the Children's Act to enforce a child's rights

Reasoning

Section 29(1) of the Children's Act, 2023 permits any person to institute proceedings claiming a child's right has been denied, violated, infringed or threatened. Sub-section 2(a) expressly allows a parent or guardian to institute such proceedings. The Applicant, as the child's biological mother, therefore has locus standi.

p. 3

Legal principles established

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  • By operation of the doctrine of tender years, custody of a child of tender years should be granted to the mother unless exceptional circumstances are demonstrated
  • A child's best interests are paramount in every matter concerning the child

Court orders

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  1. 1.The Applicant (mother) granted actual and physical custody of the minor pending hearing and determination of the maintenance cause
  2. 2.The Respondent (father) to forthwith surrender the actual and physical custody of the minor to the Applicant
  3. 3.Respondent granted unlimited visitation rights of the minor at reasonable times and places
  4. 4.Order of 23/10/2024 on 50:50 sharing of medical needs, shelter, clothing and food to remain in effect pending hearing and determination of the maintenance cause
  5. 5.The Officer in charge of Mutomo Sub-County Children's Department to supervise enforcement of the orders
  6. 6.Each party at liberty to move the court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LM
majority

Wrote the judgment

Jurisdiction invoked
Article 53 of the Constitution of Kenya, 2010 and the Children's Act, 2022 (Section 29(1))

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Applicant (mother) be and is hereby granted actual and physical custody of the minor herein pending hearing and determination of the maintenance cause.
p. 5disposition - interim custody granted to mother
Thus by operation of the doctrine of tender years, the custody should be granted to the mother (the Applicant herein) unless exceptional circumstances are demonstrated to exist.
p. 5doctrine of tender years
A child’s best interests are of paramount importance in every matter concerning the child
p. 3paramountcy of the child's best interests (Article 53(2))
This allegation was not substantiated and does not qualify as an exception to the general face as regards to grant of custody to mother for children of tender years.
p. 5failure to prove exceptional circumstances
Each party shall bear the costs of his/her application.
p. 5costs

Issues in the judgment

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minor

Judgment cites the Children's Act inconsistently as the 'Children's Act, 2023' (Section 29) and 'Children's Act, 2022' (Sections 30 and 103)

minor

Judgment misdates the Constitution as 'Constitution of Kenya, 2020' when citing Article 53(2)(e)

minor

Citation of the High Court decision RA v JNO appears garbled ('92024)')

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, "RKP (Suing on behalf of AWS - Minor) v SW (Children's Case E005 of 2024) [2024] KEMC 76 (KLR)", Case Analysis (2024). Notice of Motion dated 14/10/2024 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/76/eng@2024-11-27

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