High Court 19758 of 2025

3. b. The learned trial magistrate erred in law and in fact by failing to consider the joint parental responsibility agreement dated 15th June 2021. c. The learned trial magistrate erred in law and in fact by failing to adopt the recommendations by the Gatundu Children’s Office dated 19th February 2024 which recommended that the appellant be granted custody of the minor. d. The learned trial magistrate erred in law and in fact by issuing contradictory orders by granting the respondent who resides in Kahawa West, the custody of the child as well as ordering the minor to continue his education in his current school which is located in Gatundu. e. The learned trial magistrate erred in law and in fact by failing to consider the best interests of the minor considering that he resided with the appellant since he was abandoned by the respondent at birth. Directions were issued that parties put in written submissions. The record shows that the appellant complied with the directions on submissions while the respondent failed to do so. Appellant’s Submissions 4. The appellant submits that there exist exceptional circumstances that warrant him to have actual physical custody of the minor who is of tender years because the respondent abandoned the minor at birth and the child has always lived with him. Further, in light of the abandonment, a parental responsibility agreement was signed by both parties granting him custody of the minor and that he has continued and uninterrupted custody of the minor over the years. The appellant further submits that the report filed by the Gatundu Children’s Officer dated 19th February 2024 strongly recommends that he maintains custody of the minor. 5. The appellant argues that the trial court’s ruling did not address the issue of abandonment by the respondent. As such, the ruling was not based on the best interests of the minor but other extraneous factors and parameters that are not provided under the law. The appellant further argues that while the children’s officer’s report is not binding on the court, the trial court flatly ignored it and arrived at the wrong verdict. 6. The appellant submits that the respondent lives in Kahawa West and the minor’s school, Samros Academy is in Gatundu which is 50 kms away. Thus granting custody to the respondent and directing that the minor continues with his education at Samros Academy is self defeating and contradictory since the minor could not be covering a distance of over 50km to and fro to attend school. Issue for determination 7. The main issue for determination is whether the order granting the respondent physical/actual custody of the minor should be set aside and substitute it with an order granting the appellant physical/actual custody, care and control of the minor. The Law 8. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “ …..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19758/eng@2025-06-12 2

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should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 9. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. 10. Considering the foregoing decisions, the appropriate standard of review to be established can be stated in three complementary principles:a. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and c. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the Magistrate erred in granting the physical custody of the child to the respondent In matters concerning a child, it is a constitutional imperative that of paramount importance is the best interests of the child. To that extent, Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. This position has been enshrined in the Children’s Act in section 4 which provides for the welfare of the child. Section 8(1) and (2) of the Children’s Act provides:- 11. (2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration…to the extent that this is consistent with adopting a course of action calculated toa. Safeguard and promote the rights and welfare of the child; b. Conserve and promote the welfare of the child; c. Secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest. It is evident from the record that the minor is only five (5) years old. According to the Children’s Act, a child of tender years is a child under the age of ten years. It is trite law that when it comes to the question of deciding custody of children of tender years, in the absence of any exceptional circumstances, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19758/eng@2025-06-12 3

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custody of children of tender years should be awarded to the mother. In K.M.M. vs J.I.L [2016] eKLR the court held:…..a child of tender years’ best interest and welfare are where the legal custody is awarded to the mother barring extenuating circumstances that would prevent the mother from providing protection and care of the child. Caselaw lends credence to the proposition that in cases of a child of tender years of less than 10 years as defined under Section 2(1) of the Children’s Act 2001, custody is granted to the mother. 12. Similarly in Githunguri vs Githunguri [1981] KLR 598, the court stated that: The prima facie rule (which is now quite clearly settled) is that other things being equal, children of this tender age should be with their mother, and where a court gives custody of this tender child to the father, it is incumbent on it to make sure that there are really sufficient reasons to exclude the prima facie rule. 13. In Sospeter Ojaamong vs Lynette Amondi Otieno Civil Appeal 176 of 2006 the court outlined what would constitute exceptional circumstances and held:The general principle of law is that custody of such children should be awarded to the mother unless special and peculiar circumstances exist to disqualify her from being awarded custody....the mother's disgraceful conduct, say her immoral behaviour, drunken habit, bad company are some of the factors which would disqualify her from being awarded custody of a child of tender age. 14. The appellant argues that he was better placed to be granted full custody on the basis that the respondent abandoned the minor at birth, that the parties signed a parental responsibility granting him custody of the minor and that the report filed by the Gatundu children’s officer dated 19th February 2024 recommended that he maintains the custody. On perusal of the record, the respondent explained that she did not abandon the minor but the appellant left their matrimonial home with the minor and took him to his paternal grandmother. This contention is supported by the joint parental responsibility agreement signed on 15th June 2021 wherein parties agreed that the minor’s paternal grandmother would continue looking after the minor. It is therefore evident that the actual custody of the minor has always been with his paternal grandmother. Thus, the applicant is misleading the court in stating that since birth he has had actual physical custody of the minor. It is noted that the respondent instituted the suit in the lower court because she was denied visitation rights of the minor contrary to the joint responsibility agreement that the parties had signed. Additionally, although the appellant faults the trial court for not awarding him the custody by virtue of the Children’s Officer’s report dated 19th February 2019, it is trite law that a children’s officer’s report is meant to guide the court and is not binding in any court of law. Therefore, the trial court only ought to consider what the report provides but still analyse the evidence before it and draw its conclusion. I am not convinced that the reasons given by the appellant are peculiar or exceptional to justify review or set aside the magistrate’s order on custody of the child. The appellant has not demonstrated that the magistrate erred in granting the said orders. The orders in my view were made in the best interest of the child of tender years. 15. I have perused the trial court record and noted that the respondent changed the minor’s school for the reason that the school was too far from where she was residing and as such, caused inconvenience to the mother and the child in ferrying the child to and from the school. Thus, it is my view that the ground of appeal to the effect that the orders given by the trial court on the issue of schooling were contradictory has already been overtaken by events. This court also takes cognizance of the fact that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19758/eng@2025-06-12 4

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the appellant is challenging interlocutory orders in this appeal while the children’s case is still pending before the magistrate’s court at Ruiru. 16. Accordingly, it is my considered view that the appeal lacks merit and it is hereby dismissed. 17. Being a family matter, each party shall meet their own costs. 18. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19758/eng@2025-06-12 5

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