ZN (Suing as mother and next friend of the Minors) v FB (Children's Case 266 of 2019) [2024] KEMC 79 (KLR)
The bottom line
#A Kenyan Children's Court let two young children stay in the US with their mother, ruling that custody disputes can always return to court and children's best interests come first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the plaintiff is entitled to the orders sought
- 2.Costs
- 3.Res judicata and the functus officio doctrine
- 4.Power of the court to remove a child from its jurisdiction
- 5.Power of the court where children are habituated elsewhere
- 6.Inter-country reciprocity
- 7.Tender year doctrine vis a vis best interest principle
- 8.Ascertainable wishes doctrine as a consideration by the Court
- 9.Past performance of each parent
- 10.Financial status of each party
- 11.Quality of the available home environment
- 12.Interpol intervention
- 13.Section 95 orders
Key legal issues
#Whether res judicata and functus officio bar the application
The res judicata objection fails; res judicata does not apply to children's matters and the court is not functus officio
The court adopted Odunga J's statement in EM v AM that res judicata does not apply to matters affecting children, quoting Muigai J in ANM v PMN that children's issues evolve as the child grows. Section 7 of the Civil Procedure Act was set out but held inapplicable to children's matters. Consequently the court could entertain further issues concerning the children notwithstanding the July 23, 2021 judgment.
Whether the court can make orders where the children are habituated outside its jurisdiction
The court's out-of-jurisdiction powers are limited; custody orders are not enforceable under the Foreign Judgments (Reciprocal Enforcement) Act and no reciprocity agreement exists with the United States, so the children remain in the United States with the mother
The court noted the Foreign Judgments (Reciprocal Enforcement) Act excludes custody and guardianship proceedings, and took judicial notice that no reciprocity agreement had been signed with the United States under section 168 of the Children Act. Given the lacuna, the court applied the paramountcy principle in article 53, considering the mother is the primary caregiver and sole breadwinner and that it was in the children's best interest to remain with her.
Tender years doctrine versus best interests principle
The children, both below 10 years, fall within the tender years doctrine, which converges with the best interests principle, supporting their remaining with the mother
The court reviewed HGG v YP and Sospeter Ojaamong v Lynette Amondi Otieno on the presumption that children of tender years should be in the mother's custody absent exceptional circumstances, and SMM v ANK subjecting the doctrine to the constitutional best interests test. Finding no exceptional circumstances and the children below ten years, the doctrine converged with the best interests principle, particularly absent a reciprocal agreement.
Ascertainable wishes of the children
The minors, interviewed by the court, expressed their wish to travel with their mother, a best-interests consideration under the First Schedule and Supreme Court guidelines
Applying the Supreme Court's guidelines in MAK v RMAA, including the ascertainable wishes of a child capable of expressing an opinion, and the First Schedule to the Children Act, 2022, the court interviewed the minors. Finding no prescribed assessment method, the court adopted the Lowenfeld theory of artistic expression, allowing the children to express their wishes through drawings.
Co-parenting, financial status and home environment
The parties have not co-parented successfully; the defendant must prove deposits and means, and transition counselling must precede any introduction of the father's live-in partner
The court found acrimony compounded by non-compliance with the earlier transition counselling order, and held court-mandated therapy a necessity. The defendant had not demonstrated ability to maintain the children's education, needing to file an affidavit of means and list American-curriculum schools. The Children Officer's Report showed a stable home with a live-in partner who can only be introduced after a co-parenting plan.
Legal principles established
#- The doctrine of res judicata does not apply to children matters; consequently a children's court cannot be functus officio in respect of children's issues
- The best interests of the child is the paramount consideration in every matter concerning a child, and where there is a lacuna in child law practice the court reclines to the paramountcy principle
- The Foreign Judgments (Reciprocal Enforcement) Act does not apply to custody or guardianship orders, limiting enforcement of such orders out of jurisdiction
- The Tender Years Doctrine is persuasive but must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases
- A court cannot enforce its orders in relation to a child who has been removed from its jurisdiction
Court orders
#- 1.The objection based on res judicata fails
- 2.The children shall remain domiciled in the United States with the plaintiff/mother for now
- 3.The defendant/father is granted unlimited but reasonable access in the United States
- 4.The defendant/father is granted unlimited but reasonable audio visual contact (at US time)
- 5.The parties to enroll in co-parenting coaching (virtually) within 30 days from today's date; parties to agree on choice of therapist and in default to contact the court for appointment
- 6.The children to undergo transition counselling as earlier ordered by the court within 30 days from today's date
- 7.The defendant/father to file a current affidavit of means and file proof of 50,000/- monthly deposits (from the day judgment was rendered to date)
- 8.Summons to issue to the in charge DCI child protection unit to update the court on the status of the expunging order
- 9.Mention on August 6, 2024 (for DCI follow up)
- 10.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 53(2) of the Constitution of Kenya, 2010 and the Children Act, 2022
Relief refused
#Interim custody of the minors / return of the children to Kenya
It would go against the children's best interest to disturb their current home environment, education and social milieu; the children shall remain domiciled in the United States with the mother
Citing the plaintiff for contempt, warrant of arrest and committal to civil jail
The court found the defendant had in fact accessed the children in Kenya and in the United States, so the access orders had not been breached
Referral to DCI Headquarters Nairobi Central Bureau Interpol for the plaintiff's presentation to court
The Interpol direction had been overtaken by events as the defendant had seen the children
Costs
That this being a family matter, I make no order as to costs
Quotable passages
#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 objection based on res judicata fails
That the children shall remain domiciled in the United States with the plaintifi/ mother for now
That the defendant/father is granted unlimited but reasonable access in the United States
That this being a family matter, I make no order as to costs
Jurisdiction is everything. Without it a court has no power to make one more step.
I must however state that in matters afiecting children the doctrine of res judicata does not apply.
It is my humble view that the paramountcy principle in article 53 is the guiding principle the court should recline to when there is a lacunae in child law practice.
the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases.
Issues in the judgment
#Date of the underlying judgment is inconsistently stated as July 23, 2021 in one place and July 22, 2022 in another
The judgment states its orders are 'still in existence' and unreviewed, yet also records that the High Court declined stay in a 2022 appeal, suggesting the custody judgment is from 2022 not 2021
Spelling/typographical errors throughout (e.g. 'plaintifi', 'functus oficio', 'afied') consistent with OCR of the original
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ZN (Suing as mother and next friend of the Minors) v FB (Children's Case 266 of 2019) [2024] KEMC 79 (KLR)", Case Analysis (2024). Not stated in judgment (Ruling on defendant's application dated January 26, 2024 and plaintiff's preliminary objection dated February 27, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/79/eng@2024-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.