EWM (Suing as mother and next friend) v VS (Children's Case 746 of 2019) [2024] KEMC 82 (KLR)
The bottom line
#A Kenyan Children's Court kept a child with her mother in Kenya, gave the father structured access, and rejected total denial of contact.
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
Key legal issues
#Whether the Plaintiff (mother) is entitled to actual custody, care and control
Yes; the mother retains actual custody, care and control, with joint legal custody to both parties; the status quo is preserved
Applying Article 53(2) of the Constitution and Section 8 of the Children Act 2022, the court held the best interests of the child paramount. The minor is 10 years old and the mother has been the primary parent; the child had already suffered psychological harm from the alleged abduction and instability. The court declined to disturb the status quo and, drawing on the Supreme Court's guidelines in MAK v RMAA, preserved both parents' involvement through joint legal custody and structured access rather than alienation.
Whether the Defendant should be denied access
No; the Defendant is granted structured access both in the United States (audio-visual contact) and in Kenya (alternate weekends and half school holidays)
The court reasoned that denying access would amount to parental alienation, and that Article 53 guarantees equal parental responsibility. It gave directions on the Defendant's participation, accounting for the time difference with the United States, and framed access to preserve direct contact with both parents as required by the best-interests guidelines.
Whether the alleged contempt of Court by the Plaintiff should be pursued
No; the court declined to subject the parties to contempt proceedings in the child's best interest
The court held that contempt proceedings in a family matter would aggravate the existing rift between the parents, contrary to the child's welfare. It chose to let the matter rest, urging the parties to be cordial and resolving disputes with minimal conflict in line with the child's holistic wellbeing under Article 53.
Legal principles established
#- A child's best interests are of paramount importance in every matter concerning the child
- Custody of children of tender years should be awarded to the mother unless special and peculiar circumstances disqualify her
Court orders
#- 1.That both parties shall have joint legal custody of the minor herein
- 2.That the Plaintiff/mother retains actual custody, care and control (no need for wardship orders)
- 3.That the Defendant/father is granted access: while in the United States, unlimited but reasonable audio visual contact (EAT); while in Kenya, alternate weekends Saturday 9am to Sunday 5pm, pick up/drop off at nearest recreational facility to the child, and half school holidays alternating Easter and Christmas
- 4.That the Defendant to invest in an education policy of choice at 10,000/- per month 30 days from today's date
- 5.That such monies shall be contribution towards the minor's educational needs
- 6.That none of the Parties shall leave the court's jurisdiction with the minor without a court order
- 7.That the minor's passport(s) to be deposited in Court and immigration department notified at the earliest instance
- 8.Parties at liberty to apply
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 53 of the Constitution of Kenya, 2010 and the Children Act 2022
Relief refused
#Wardship order
Court found it unnecessary since the mother retains actual custody, care and control
Prayer that the Defendant be denied access
Denial of access would amount to parental alienation and contravene equal parental rights under Article 53
Costs
No order as to costs, this being a family matter
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 both parties shall have joint legal custody of the minor herein
That the Plaintifi/mother retains actual custody, care and control (no need for wardship orders)
That none of the Parties shall leave the court's jurisdiction with the minor without a court order
That this being a family matter, no order as to costs
A child's best interests are of paramount importance in every matter concerning the child.
Issues in the judgment
#The Defendant's evidence on abduction is internally contradictory in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EWM (Suing as mother and next friend) v VS (Children's Case 746 of 2019) [2024] KEMC 82 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/82/eng@2024-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.