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MagistratePartially AllowedNot stated in judgment

EWM (Suing as mother and next friend) v VS (Children's Case 746 of 2019) [2024] KEMC 82 (KLR)

Children's Court (Principal Magistrate)
1 October 2024
1,920 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 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

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Executive summary

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The Plaintiff mother sued the Defendant father, seeking a permanent order restraining him from leaving the court's jurisdiction with their minor child, actual custody, care and control, a wardship order, and costs. Her case was that she consented to the minor travelling to the United States with the father in early 2019 for urgent medical treatment on the understanding that the child would return; the child did not return and the father became unreachable. The Defendant asserted the child was found to need further urgent medical intervention abroad, and in his evidence admitted abducting the child. The court, guided by Article 53(2) of the Constitution and Section 8 of the Children Act 2022, held the child's best interests paramount, applying the Supreme Court's guidelines in MAK v RMAA and authorities on custody of children of tender years. It found the mother had been the primary parent of the 10-year-old child and declined to disturb the status quo, noting the child had suffered untold psychological harm from the alleged abduction. The court refused the mother's prayer to deny the father access, holding this would amount to parental alienation contrary to Article 53's equal parental responsibility. It declined to pursue contempt proceedings against the Plaintiff to avoid aggravating parental conflict. Final orders: joint legal custody; the mother retains actual custody, care and control, with no wardship order; structured access to the father in the US and Kenya; a KES 10,000 monthly education policy contribution by the father; restriction on removing the child from jurisdiction without a court order; passports deposited in court; no order as to costs; parties at liberty to apply.

Questions the Court framed

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

  1. 1.Whether or not the Plaintiff is entitled to the orders sought
  2. 2.Costs

Key legal issues

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01

Whether the Plaintiff (mother) is entitled to actual custody, care and control

Holding

Yes; the mother retains actual custody, care and control, with joint legal custody to both parties; the status quo is preserved

Reasoning

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.

p. 4
02

Whether the Defendant should be denied access

Holding

No; the Defendant is granted structured access both in the United States (audio-visual contact) and in Kenya (alternate weekends and half school holidays)

Reasoning

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.

p. 4
03

Whether the alleged contempt of Court by the Plaintiff should be pursued

Holding

No; the court declined to subject the parties to contempt proceedings in the child's best interest

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.That both parties shall have joint legal custody of the minor herein
  2. 2.That the Plaintiff/mother retains actual custody, care and control (no need for wardship orders)
  3. 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. 4.That the Defendant to invest in an education policy of choice at 10,000/- per month 30 days from today's date
  5. 5.That such monies shall be contribution towards the minor's educational needs
  6. 6.That none of the Parties shall leave the court's jurisdiction with the minor without a court order
  7. 7.That the minor's passport(s) to be deposited in Court and immigration department notified at the earliest instance
  8. 8.Parties at liberty to apply

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 53 of the Constitution of Kenya, 2010 and the Children Act 2022

Relief refused

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Wardship order

Court found it unnecessary since the mother retains actual custody, care and control

p. 5

Prayer that the Defendant be denied access

Denial of access would amount to parental alienation and contravene equal parental rights under Article 53

p. 4

Costs

No order as to costs, this being a family matter

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 both parties shall have joint legal custody of the minor herein
p. 5Final orders - legal custody
That the Plaintifi/mother retains actual custody, care and control (no need for wardship orders)
p. 5Final orders - actual custody
That none of the Parties shall leave the court's jurisdiction with the minor without a court order
p. 6Final orders - travel restriction
That this being a family matter, no order as to costs
p. 6Costs
A child's best interests are of paramount importance in every matter concerning the child.
p. 2Best interests of the child

Issues in the judgment

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minor

The Defendant's evidence on abduction is internally contradictory in the judgment text

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, "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.