FSA (Suing as the next friend and biological mother of SFM - A Minor) v FHM (Civil Appeal 144 of 2025) [2026] KEHC 2521 (KLR) (Family) (27 February 2026) (Ruling) Neutral citation: [2026] KEHC 2521 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) FAMILY CIVIL APPEAL 144 OF 2025 PM NYAUNDI, J FEBRUARY 27, 2026 BETWEEN FSA (SUING AS THE NEXT FRIEND AND BIOLOGICAL MOTHER OF SFM A MINOR) ................................................................................................ APPELLANT AND FHM ....................................................................................................... RESPONDENT RULING 1. By application dated 23rd September 2025, presented under Order 50(2)(a), 53, 159(2) of the Constitution of Kenya, Section 8,32,102,103,108, Sections 1A,1B and 3A of the Civil Procedure Act and Order 45(2), 512 of the Civil Procedure rules, the applicant seeks the following orders i. That this Court issue a Production Order requiring the Respondent to produce the Minor in Court to ascertain the well-being of the Minor and to confirm that the Minor is still within this Court’s jurisdiction as had been ordered by the subordinate Court on 29th July 2025. ii. That pending the hearing and determination of this Application, this Court grant the Applicant/ Appellant reasonable day access over the Minor. iii. That in the alternative, this Court grant the Applicant/Appellant reasonable and supervised day access over the Minor at a place, time and in a manner this Court deems fit. iv. That pending the hearing and determination of this Appeal the Court grant the Applicant/ Appellant reasonable day access over the Minor; OR in the alternative, this Court grant the Appellant/Applicant reasonable and supervised day access over the Minor at a place, time and in a manner this Court deems fit. v. That the costs herein be provided. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2521/eng@2026-02-27 1
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2. The application is premised on the grounds on the face thereof and is supported by the Affidavit sworn by Applicant on the same date. 3. In response to the Application, the respondent has sworn a replying affidavit and raises a preliminary objection. The preliminary objection is premised on the following grounds- 4. 1. That the Applicant/Appellant has failed to attach or annex the order and/or ruling appealed from as required under Order 42 Rule 2 of the Civil Procedure Rules, 2010. 2. That the record of appeal is incomplete and defective, rendering the appeal incompetent, as the Court cannot be invited to consider or determine an appeal in the absence of the impugned ruling or order. 3. That the omission goes to the root of the appeal, as the Court lacks jurisdiction to determine or entertain an appeal whose subject matter has not been properly placed before it. 4. That the Appeal as filed offends the mandatory provisions of the law governing the form and content of appeals, and is therefore liable to be struck out in limine. Before I proceed to consider the application on its merits, I will first consider the preliminary objection. The legal threshold to be met for this Court to uphold the preliminary Objection was well stated in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E.A. 696 at 700 “ …So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Further, Newbold, P stated (p.701): “ The first matter relates to the increasing practice of raising points, which should be a argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.” 5. In Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR) it was held in Para 16: “ It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. (see Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 14 of 2014, [2014] eKLR)." 6. It is postulated that the Record of Appeal is incomplete and therefore materially defective. Reference is made to the decision in Akile & Another v Mugo (Civil Appeal E013 OF 2023) KEHC6538(KLR) (23 May 2024) (Judgment). The preliminary objection is premised on a non-existent record of appeal; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2521/eng@2026-02-27 2
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the respondent has clarified that they have yet file a record of appeal as the proceedings of the lower court are yet to be typed. As stated above, the factual basis of a preliminary objection must be accurate and uncontested. I therefore strike out the preliminary objection, as what is before the Court is an application for interim orders pending the determination of the appeal. In any event, the order that the applicant intends to appeal against has been attached to the Notice of Motion. This paves way for consideration of the applicant’s application on merit. 7. In her affidavits sworn herein (supporting sworn on 23rd September 2025 and further affidavit sworn on 28th January 2026), the applicant avers that the criminal case in which she is the 2nd Accused is actuated by malice and falsehoods. As relates to her access to the minor she states, there is no risk of compromising the criminal matter as the minor has already testified in the criminal case and her son who is the 1st accused in the criminal case no longer stays with her. 8. She argues that it is in the interests of the minor that she be allowed at the very minimum supervised access of the minor. She refers to report of the children officer. 9. The Respondent filed a Replying Affidavit on 30th October 2025 in response to the Application above. He avers that the impugned ruling of 29th July 2025 granted him interim custody of the Minor pending the conclusion of the Criminal Case and was a prudent, balanced and correct decision made in the best interests of the Minor. He rejects the Applicant’s assertion that the ruling failed to issue any substantive orders, and attests that the Court issued a very specific and substantive order vesting interim custody to him to protect the Minor from the environment where she was allegedly defiled and her abuser threatened her into silence. 10. Further, that the Application herein is an attempt by the Applicant/Appellant to frustrate the course of justice, intimidate the Minor and derail the criminal proceedings against her and her son. The offence is grave. 11. The Respondent contends that granting the Applicant/Appellant any kind of access or custody as prayed for in her application would expose the Minor to immense psychological pressure and intimidation and would place her back in the proximity of her alleged abuser and conspirator, jeopardizing her safety and ability to testify freely in Court. 12. The Respondent further rejects the Applicant’s/Appellant’s claim that the trial Court failed to consider the Children Officer’s Report given that the same was considered in conjunction with the grave criminal allegations leading to the conclusion that no recommendation for access could override the immediate need to protect the child. 13. The Respondent asserts that the current custody arrangement is temporary and tied to the duration of the Criminal Case and guarantees the Minor’s safety and integrity of the justice process. 14. That the best interests of the Minor are served by maintaining a stable, secure and protective environment with the Respondent away from the Minor’s source of trauma and fear. 15. The Respondent prays that this Court upholds the decision of the lower Court and dismisses the Application with costs. Analysis And Determination From the foregoing, the issues before me for determination are: i. 16. Whether it is in best interests of the Child to allow the application dated 23rd September 2025? In the impugned ruling the Trial Court issued the following Orders- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2521/eng@2026-02-27 3
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17. 1. That none of the parties shall leave the Court’s jurisdiction with the Child without leave of Court. Immigration department to be notified. 2. That a P&C file be opened right away to follow up on the welfare of the child pending the hearing and determination of the criminal matter. 3. That the Department of Children Officers liaison office to update the Court on criminal case. The circumstances under which an appellate Court will interfere with the exercise of discretion of a trial court were stated in the leading decision of Mbogo v Shah (1968) EA at page 93. De Lestang, VP (as he then was), observed at page 94: I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. 18. It is not disputed by either party that the applicant herein is a co accused in a criminal case where she faces the very serious allegation of failing to protect the minor from sexual harm. Her co accused is her son and step brother to the minor herein. That trial is ongoing she has not been convicted of the offence, an underlying principle of our justice system is that one is innocent until proved guilty, See Article 50 (2)(a) of the Constitution of Kenya. 19. The applicant herein is aggrieved that the Court declined to give substantive orders on the issue of custody to abide the determination of the criminal case. I have looked at the Order, it does not give any order as to access of the child. I have also considered the Children report that recommended that parents have joint legal custody and that parental responsibility be shared equally. 20. The question for determination is whether it is in the best interests of the minor for the status quo to be maintained pending finalisation of the criminal case. The effect of the order is that the issue of access, custody of the minor will be held in abeyance for an indefinite period. It is not disputed that the minor has now testified in the criminal case. Children are subjects and not objects of rights. This means that they are not the property of parents, but rather they hold the same human rights with specific rights that recognise their need for protection, development and care. 21. This is why the Constitution demands that in all matters concerning Children the primary consideration is the best interests of the child (See Article 53 of the Constitution and Section 8 of the Children Act.) 22. I take cognizance of the holding in the case, SMM v ANK [2022] KEHC 1043 (KLR) which stated: “ …the welfare of the children is the primary factor of consideration when deciding custody cases. The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.” 23. The Court of Appeal in J.O. v S.A.O (2016) e KLR stated: “ There is a plethora of decisions by this court as well as the High Court that in determining matters of custody of children and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother because mothers are best suitable to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2521/eng@2026-02-27 4
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husband; where she is living in quarters that are in deplorable state; or where her conduct is disgraceful and/or immoral.” 24. It is well settled that in making a decision the court is obligated to not only consider the tender year principle but weigh it against the best interests of the child principle.The best interest of the child generally requires consistent, loving, and regular access to both parents to ensure healthy emotional, social, and psychological development. However, this holds in ideal situations. In circumstances such as the current one, the Court has to be careful to ensure that it does not make orders that expose the child to harm. 25. Based on the above refiections I find that the following orders will balance the rights of the child to parental care and the court’s duty to safeguard the child from harm; 26. The application is allowed on the following terms 1. The matter is referred back to the trial court for priority hearing. 2. Pending the hearing and determination of the case before the trial court, the applicant herein shall have supervised physical access to the minor over the weekends from 8am to 4pm (inclusive Saturday and Sunday). The parties will agree on pick up and drop off points. 3. The applicant shall have telephone access to the minor daily for an hour in the evening at a time to be agreed upon between the applicant and respondent. The applicant shall provide the gadget that shall be used to communicate with the child. 27. This being a family matter each party will bear their own costs. 28. Parties are at Liberty to appeal, the party exercising their right of appeal to do so within 30 days. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2026. P. M. NYAUNDI JUDGE In the presence of: Fardosa Court Assistant Mogere holding brief Orlando for Appellant Ms. Njenga holding brief for Bashir for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2521/eng@2026-02-27 5
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