High Court 4041 of 2026

would have unsupervised access and visitation rights every alternative weekends. They would share the holidays equally. They also agreed that in case either party needed to move to live in a different jurisdiction, they would reach a suitable arrangement so that neither party is denied right of regular access. 4. In March, 2023, the Respondent gave the Appellant the physical custody of the minor and she relocated to the United Kingdom. She had access to the minor whenever she would visit the country. The Appellant also granted the Minor’s maternal grandmother access over long weekends and/or school holidays. 5. Later, the Respondent brought an application dated 10th April, 2025 in which she sought sole legal custody and responsibility over the minor. She also asked the Court to direct the United Kingdom’s High Commission to issue the minor with the relevant VISA to enable the minor access medical attention and also attend school. She undertook to return the Minor to the Court’s jurisdiction upon the close of school and when called upon to by the Court. 6. The Court delivered a ruling on 23rd December, 2025 in which it gave the Respondent leave to remove the child from the Court’s jurisdiction. It also directed her to provide her residential address and contact details while abroad before relocation. The Court gave the Appellant unlimited but reasonable audiovisual access to the minor. Lastly, it directed the Respondent to avail the minor for physical access in Kenya during the long school holidays, failure to which the Court would issue a red alert through INTERPOL. 7. The Appellant was dissatisfied with the Ruling and appealed to this Court vide an amended Memorandum of Appeal dated 11th February, 2026. He listed the following Grounds of Appeal; 1. The Learned Magistrate erred in law and in fact by only placing reliance on the expressed wishes of the minor during an exclusive interview that lasted no more than two minutes above all other considerations in arriving at its decision, thereby failing to conduct a holistic evaluation of the best interests of the child as required under Article 53 (2) of the Constitution and Section 8 of the Children Act. 2. The Learned Magistrate erred in law and in fact by failing to find that the Application dated 10th April, 2025 was fatally defective as it was supported by a defective Supporting Affidavit and the Further Affidavit both purportedly sworn at Nairobi on 10th April, 2025 and 13th October, 2025 respectively which were in contravention of the mandatory dictated of Section 5 of the Oaths and Statutory Declarations Act, as the deponent thereof was not in Kenya. 3. The Learned Magistrate erred in law and in fact by failing to be guided by the binding decisions of the Court of Appeal in J.O. V S.A.O. [2016] eKLR and the High Court (Prof. Ngugi J. as he then was) in SMM vs ANK [2022] eKLR to consider and uphold the exceptional circumstances that existed to justify that custody of the Minor be retained by the Appellant and/or that the Minor should not be relocated out of the country and jurisdiction. 4. The Learned Magistrate erred in law and in fact by ignoring and disregarding the uncontroverted evidence on the best interests of the minor as adduced by the Appellant herein prior to making a determination with far reaching consequences on the minor’s life and general wellbeing. 5. The Learned Magistrate erred in law and in fact by granting an order for relocation of the child despite the Respondent having neither specifically sought nor prayed for such relief in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 2

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the Application dated 10th April, 2025, contrary to the settled principle of law that parties are bound by their pleadings. 6. The Court erred in law and fact by failing to consider, or by disregarding altogether, uncontroverted evidence demonstrating that the Appellant has had exclusive actual custody of the minor for an aggregate period of approximately four years. 7. The Learned Magistrate erred in law and fact by failing to consider the children officer’s report on record thereby disregarding material evidence on record in determining the welfare and best interests of the minor. 8. He asked this Court to allow the appeal and set aside the ruling and substitute with an order dismissing the Notice of Motion Application dated 10th April, 2025. He also asked that the prevailing circumstances prior to the impugned Ruling that the he maintains physical custody of the minor be restored. 9. The Appeal was canvassed by way of written submissions. Appellant’s written Submissions 10. The Appellant submitted that the lower Court was wrong in issuing the orders, arguing that the Respondent’s application dated 10th April, 2025 was fatally defective. He submitted that the affidavits supporting the application were defective because, although they purported to have been sworn and dated in Nairobi, the Respondent did not appear before the Commissioner of Oaths at Nairobi for purposes of making the oath. He argued that at the time of swearing the affidavits, the Respondent was residing in the UK and was not in Nairobi on the dates she purports to have sworn the two affidavits. 11. The Appellant also submitted that the lower Court was wrong in granting the order to relocate the minor to the UK, arguing that the Respondent had not sought such a prayer in the pleadings. He argued that the Respondent did not plead any prayer “to remove the child from the court’s jurisdiction” as was granted by the trial Court. He submitted that the Respondent belatedly introduced the issue of relocation in the submissions yet it is hornbook law that parties cannot seek to introduce new issues through submissions. He submitted that the court should have ignored those submissions. 12. Lastly, the Appellant submitted that the lower Court was wrong in issuing the relocation order, arguing that the order was not in the best interests of the minor. He argued that the court failed to consider the children officer’s report as well as exceptional circumstances that existed to justify that he should be allowed to retain the custody of the minor. He submitted that the lower court confined its consideration exclusively to the ascertainable wishes of the minor, and in doing so, it failed to give due regard to other material and relevant considerations underpinning the best interests of the child principle. Respondent’s written Submissions 13. The Respondent submitted that the lower Court was right in issuing the orders. She submitted that the Court demonstrably applied the correct constitutional and statutory framework, and the resulting determination became a discretionary welfare finding, one which appellate Courts are slow to disturb. She also submitted that the Court should ignore the alleged irregularities in the commissioning of the affidavits, arguing that the issue was not raised by formal objection before the trial Court, and that the said irregularities would not justify overturning a welfare determination reached after a full hearing. 14. She also submitted that the claim that the issue of relocation was not pleaded is unsustainable, arguing that the proceedings were centered on the child joining her abroad. She also submitted that the Court’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 3

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determination was not a one-sided determination and that it was a structured welfare decision which carefully considered the child’s welfare, custodian parent’s circumstances, and non-custodial parent’s rights. Lastly, she submitted that the court was not bound to follow the children officer’s report, arguing that such reports are advisory and assistive in nature and do not bind the court. Issues for Determination 15. Having carefully considered the Grounds of Appeal and the submission by the parties, I find that there are three issues for determination; a. Whether the Respondent’s Application dated 10th April, 2025 was fatally defective. b. Whether the order allowing relocation of the minor was warranted. c. Whether the Respondent should be granted sole legal custody of the Minor. 16. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial Court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR. 17. Accordingly, this Court is being required to undertake a wholesome review of the Respondent’s application dated 10th April, 2025, and come up with its conclusion. Whether the Respondent’s Application dated 10th April, 2025 was fatally defective 18. The Appellant submitted that the affidavits supporting the Application were defective because, although they purported to have been sworn and dated in Nairobi, the Respondent did not appear before the Commissioner of Oaths at Nairobi for purposes of making the oath. She argued that the Respondent was residing in the UK and was not in Nairobi on the dates she purports to have sworn the two affidavits. 19. I have seen the said affidavits. One of them is the Supporting affidavit dated 10th April, 2025, which indicates that it was sworn by the Respondent at Nairobi, on the same day, and bears her signature. The second affidavit is a Replying Affidavit dated 13th October, 2025, which indicates that it was sworn by the Respondent at Nairobi, on the said date, and bears her signature. 20. This Court is being called upon to determine whether the said affidavits were properly deponed as per the law. The first factual issue to be determined is whether the Respondent did in fact appear before the Commissioner for Oaths to swear the said affidavits. 21. Upon considering the evidence on record, and particularly the averments of the Respondent in the two affidavits, this Court finds no difficulties in determining this factual issue. In the supporting affidavit dated 10th April, 2025, she averred that she has secured employment in the UK and she was currently residing in London. In the Replying affidavit dated 13th October, 2025, the Respondent averred that she was currently residing and working in the UK, where she lives with her sister. In addition, during the hearing of the case on 18th November, 2025, the minor told the Court that her mother was last in Kenya in 2024. 22. Based on these facts, I find that, on a balance of probabilities, it is more likely than not that the Respondent was not in Kenya at the time when she alleges to have sworn the said affidavits. Thus, I https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 4

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make a factual finding that she did not appear before the Commissioner of Oaths on 10th April, 2025 and on 13th October, 2025, for making the oaths in the said affidavits. 23. The law governing the making of affidavits is the Oaths and Statutory Declaration Act. The most relevant part is Section 5 of the said Act, which provides as follows; 5. Particulars to be stated in jurat or attestation clause Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 24. Kenyan courts have made useful observations on the legality of affidavits that do not conform with Section 5 of the Oaths and Statutory Declaration Act. The Supreme Court in Konchellah v Sunkuli & 2 others [2018] eKLR observed that an affidavit that contravenes all the legal requirements for the making of an affidavit is fatally defective has no legal value. It observed as follows; “ Hence, an affidavit must clearly state the place and date where it was made andit must be made before a Magistrate or a Commissioner for oaths. 8. 25. We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent. The Court in Dardanelli & 6 others v Tilito & 3 others [2025] eKLR faced a similar question and discussed, at length, the import of Section 5 of the Oaths and Statutory Declaration Act. It observed that a deponent must appear before the commissioner for oaths and that the Courts will not sanction an affidavit which has been sworn in violation on this provision. It observed as follows; “ …The contents of an affidavit are statements under oath which may lead to offence of perjury if care is not taken; it is not surprising that affidavits are usually required to be commissioned when a deponent is present and is satisfied that the contents are correct. The Commissioner too needs know if the deponent understands what he is swearing to…. An admission has been made by the advocates for the 1st and 2nd defendant that “it is common and normal practice, custom and usage for parties to execute documents before their advocates and given that the said advocates cannot commission their own documents they present to colleague advocates for commissioning.” However, whether it has been the normal practice or custom, this does not absolve the deponent from appearing before the commissioner for oaths, and this court does not sanction anything that is contrary to the law. …….This court agrees that in legal practice as in other sectors, shortcuts may have been adopted apparently to make work easier, but that does not give them the stamp of propriety. It is noted that in respect of swearing of affidavits certain fundamental issues spring from the commissioning of an affidavit whose deponent does not appear before the commissioner for oaths. Secondly, in view of the provisions of section 5 of the Oaths and Statutory Declarations Act, the commissioner in affixing his stamp in the absence of a deponent while stating at the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 5

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place and on what date the oath or affidavit is taken or made would be in effect uttering a falsehood……It is the case as per the above discourse that absence of a deponent at the commissioning table is serious”. 26. Based on the above authorities, I find that the Commissioner for Oaths failed to adhere to the mandatory dictates of Section 5 of the Oaths and Statutory Declaration Act, which requires a true statement in the jurat of the place and date the affidavits were made. 27. However, the above finding notwithstanding, I am hesitant to find that the defect was fatal. I take this view, mainly on the consideration that this is a child matter, and it may not be in the best interest of the minor to dismiss the application solely on that ground. In addition, it appears to me that this is purely a mistake on the part of the counsel, who failed to exercise due diligence in determining the procedure to follow when taking his client’s oath. It would be unfair to visit the mistake of the counsel on the minor. For these reasons, the court will indulge the Respondent’s mistake and proceed to determine the application on its merit. Whether the order allowing relocation of the minor was warranted 28. I note that the issue at hand concerns the welfare of a Minor. The guiding principles when considering matters concerning children’s welfare are found in the Constitution that requires that the best interests of the child be of paramount importance. Article 53(2) of the Constitution provides: “ A child’s best interests are of paramount importance in any matter concerning the child.” 29. 30. The same principles are echoed in Section 4(2) and 3(b) of the Children Act, 2022 that provides that: 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 to— (a) safeguard and promote the rights and welfare of the child; (b) conserve and promote the welfare of the child; In addition, the Children’s Act, 2022 Section 95 provides for general principles that should guide a court in making a decision concerning a child. It provides as follows; 95. General principles with regard to proceedings in Children’s Court (1) Subject to subsection (4), where the Court is considering whether or not to make an order under this Act with respect to a child, the Court shall not make any order unless it considers that doing so is in the best interest of the child. (2) Where the Court is considering whether or not to make an order under subsection (1), it shall have particular regard to— (a) the ascertainable feelings and wishes of the child concerned having regard to the child’s age and understanding; (b) the child’s physical, emotional and educational needs and…..; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 6

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(c) the likely effect on the child of any change in circumstances; (d) the child’s age, sex, religious persuasion and cultural background; (e) any harm the child may have suffered or is at the risk of suffering; (f) the ability of the parent, or any other person in relation to whom the Court considers the question to be relevant, to provide for and care for the child; 31. Having set out the law, I shall now consider the Respondent’s Application dated 10th April, 2025, and determine whether she tendered sufficient grounds to warrant the orders she sought in the application. 32. The Respondent gave two reasons as to why she wanted to relocate with the Minor to the UK. She stated that she had secured a better school for the Minor and that the minor needed urgent medical attention. 33. I shall start with the first reason that she had secured a better school for the Minor. In the affidavits, she averred that the minor had been issued a conditional offer at Belmont School in the UK. However, it also emerged that Belmont School later withdrew the conditional offer and directed the Respondent to reapply once she had a confirmed date for the child’s arrival in the UK. 34. Be as it may, I, however, find that the Respondent did not provide evidence to substantiate her claims that the Belmont School is better than the current school that the minor attends. There was no evidence to demonstrate that, based on the comparisons between the two schools, the Minor’s education would have an added advantage if he went to study at Belmont School. This Court is thus not persuaded by this first ground. 35. On the second ground, the Respondent argued that the minor needed urgent medical attention. She averred that she had identified a hospital which was able to treat a condition that the Minor has suffered since birth. She stated that the Minor suffers from white opacity in the left pupillary area of the eye, which was temporarily treated in April, 2018, and that the doctors advised her to seek the services of a surgeon at the age of six. She averred that the Minor was now 7 years old and that, without procuring the services of the said surgeon, the Minor was at risk of losing his sight if he is not treated urgently. 36. The Respondent produced a medical report to substantiate her claims. I have seen the said medical report by the Aga Khan University Hospital dated 15th May, 2025. The report states that the minor underwent a surgery on 27th April, 2018 and he was discharged 2 days later, on 29th April, 2018. The report states that the Minor was to continue with medication as home and was to be brought back to clinic in one week. In the report, the hospital stated that it never got a chance to see the Minor again since then, meaning that the parties herein never took him back to the clinic. 37. However, I note that the report does not state that the Minor must seek special treatment at the age of 6. It also does not state that the Minor stands to lose his sight if he is not treated urgently. In addition, the report does not state that the surgery was an interim measure as the Minor waited for a more serious medical intervention at 6 years. 38. Based on the above facts, I find that the Respondent did not adduce evidence to substantiate her claims that the Minor needed urgent medical attention. She did not adduce medical evidence advising her to take the Minor for a thorough medical examination at the age of 6. There was also no evidence of medical opinion advising her that the Minor stood to lose his eyesight if the eye was not operated at 6 years. Besides, assuming the Minor needed such medical attention, the Respondent still failed because she did not produce medical evidence showing that urgent medical attention was unavailable in the country. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 7

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39. I also noted the Report from the Children’s office, which recommended that the Appellant should have the custody, while the Respondent should have access through video/WhatsApp calls and unrestricted access to the Minor whenever she visits the country. 40. I appreciate that the contents of the Report from the Children’s office are not binding on this Court but are merely persuasive. This is due to the well-held position that a children officer’s report is meant to guide the court in making a decision, and its recommendations are not intended to be binding on the Court. This principle was restated by the Court in BNK vs EMM (2013) eKLR, where the Court held as follows; “ The report of the Children’s Officer is not binding to the court and the court always retains the final say in deciding cases by applying legal principles.” 41. I also noted that the Court interviewed the Minor during the hearing of the application. According to the record, the Minor told the lower Court that she wanted to go to the UK to live with his mother, and that he would call and visit his father, the Appellant. I also appreciate that the lower Court had the advantage of interviewing the minor, while this Court did not have that opportunity. 42. Courts have given useful guidance on how a court should receive and evaluate the views of a child. In SM v DK & another [2024] eKLR, the Court held that a trial Court should weigh the views of the child against all the circumstances of the case. It observed as follows; “ As was stated in the case of MSA versus PKA [2009] eKLR by Onyancha J ‘… It is the interests of the child which are paramount and not the interests of the parent.’ The one sure way of determining the interests of the child is where as in this case there is a request to interview the child, interview that child and then weigh the views of the child against all the circumstances of the case”. 43. The minor expressed the wish to go and live with the Respondent in the UK, but his wishes must be seen in the proper context. The Minor was 8 years at the time of the said interview and he had not seen his mother physically, for more than a year. In my view, this might explain why the young lad was happy and curious about the planned relocation to the UK. I am of the view that, even though he might have been excited with the news of going to the UK and live with his mother, he did not have the mental ability to appreciate the long-term impact of the relocation. 44. According to the evidence on record, the Appellant enrolled the minor to the [Particulars Withheld] Academy in 2023, when the Respondent left for the UK. The minor has been schooling at this school ever since and there was documentary evidence to show that the Minor was doing very well at the current school, [Particulars Withheld] Academy. 45. Considering all these facts, I presume that the Minor has adapted to [Particulars Withheld] Academy’s routine, has established stable personal friendships, and has found stability. I also presume that, currently, the minor enjoys emotional, social, and familial support of close relatives from both his paternal and maternal sides, all of whom are permanently resident in Kenya. 46. Based on these observations, I find that the removal of the Minor from Kenya and his subsequent enrolment to a school in the UK is likely to disrupt not only his education but also his social development, and this will prejudice his overall wellbeing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 8

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Whether the Respondent should be granted sole legal custody of the Minor 47. The Respondent also asked the Court to grant her sole legal custody over the minor. Accordingly, I find that Section 103 of the Children’s Act comes into play. The Section outlines the factors that the Court should consider when making a custody order. It provides as follows; 103. Principles to be applied in making custody order (1) In determining whether or not a custody order should be made in favour of an applicant, the Court shall have regard to— (a) the conduct and wishes of the parent or guardian of the child; (b) the ascertainable wishes of the relatives of the child; (c) the ascertainable wishes of the child taking into account the child’s evolving capacity; (d) whether the child has suffered any harm or is likely to suffer any harm if the order is not made; (e) the customs of the community to which the child belongs; (f) the religious persuasion of the child; (i) any of the matters specified in section 95 (2) where the court considers such matters to be relevant in the making of an order under this section; and (j) the best interest of the child. 48. I shall relook at the facts and determine whether the Respondent supported her request for sole legal custody over the minor. 49. I have considered the conduct of the parties after they signed the said PRA. From the record, it appears that the Respondent left the Minor in the care of the Appellant when she left for the UK. It is not clear when exactly she left for the UK but the Minor told the Court that she has been living in the UK since 2023. In addition, the Appellant in his replying affidavit dated 18th August, 2025 stated that the Respondent handed over the Minor to him in March 2023. The Respondent did not deny this claim in her further affidavit dated 13th October, 2025, where she had an opportunity to deny the same. 50. Based on these facts, I find that the Respondent handed over the minor to the Appellant in March 2023, and that the Appellant had been having the physical custody of the Minor since then until the time the Respondent brought the Application on 10th April, 2025. In my calculation, the Appellant had been having the actual custody of the Minor for 2 years. 51. During these two years, between 2023 and 2025, the Appellant enrolled the minor to the [Particulars Withheld] Academy, where the minor has been schooling and that the Appellant has singlehandedly catering for the educational expenses. There was also documentary evidence to show that the Minor was doing very well at the current school, [Particulars Withheld] Academy. Lastly, there was also documentary evidence to show that the Appellant has taken a medical policy for the Minor and that he has on several occasions taken the minor to the Lions Eye Hospital Southfield Clinic. 52. I have also considered the conduct of the Appellant. The evidence on record shows that he has been good to the Respondent and to the Minor as well. In her supporting affidavit, the Respondent averred that “the Appellant has been kind enough to grant her access to the Minor whenever she visits Kenya.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 9

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In addition, the Appellant averred that he has in absolute good faith granted the minor’s maternal grandmother access during all school holidays and on some weekends to ensure that the minor has an opportunity to bond and interact with his entire family while his mother is away. The Respondent did not deny this. 53. Based on these facts, I find that the Respondent did not provide evidence to justify why the court should grant sole legal custody as against the Appellant. Disposition 54. Based on all these observations, I find that the Respondent did not adduce sufficient evidence to support her application dated 10th April, 2025. For these reasons, I set aside the ruling of the lower Court dated 23rd December, 2025, and all consequential orders. I hereby restore the physical custody of the minor to the Appellant as per the prevailing circumstances and their agreement prior to the impugned Ruling. 55. There are the final orders of the Court; 56. a. The Appeal succeeds. b. The Appellant shall have physical custody of the minor, as per the prevailing circumstances and their agreement prior to the impugned Ruling. c. No order as to costs. Orders accordingly DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 19TH DAY OF MARCH 2026. .............................. HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms. Maingi, Advocate holding brief for Okoth Advocate for the Appellant No attendance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4041/eng@2026-03-19 10

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