Okk v Vck

Kshs.15,000.00/= for food, while the Respondent would top up the amount. It also found that the Appellant should pay Kshs.30,000.00/= yearly for clothing, while the Respondent would top up. 4. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Memorandum of Appeal dated 4th December, 2024, in which he listed the following Grounds of Appeal; 1. That the Learned trial Magistrate erred in law and in fact by holding that the Appellant had uncontrolled anger which posed a danger to the minors without any iota of evidence in support of such a conclusion. 2. That the Learned trial Magistrate erred in law and in fact by denying the Appellant access to the Minors without any justifiable reason. 3. That the Learned trial Magistrate erred in law and in fact by ordering the Appellant not to have any physical access to the Minors unless by duly signed consent of the parties and the counselor to be retained for anger management counseling. 4. That the Learned trial Magistrate erred in law and in fact by granting the Actual custody of the Minors to the Respondent. 5. That the Learned trial Magistrate erred in law and in fact by taking into account irrelevant considerations in arriving at its decision. 6. That the Learned trial Magistrate erred in law and in fact by contradicting itself by granting the Respondent actual custody whereas on the other hand it still proceeds to grant the Respondent access on video call for only two hours in a week. 7. That the Learned trial Magistrate erred in law and in fact by contradicting itself thus making enforcement of the trial court’s judgment and decree virtually impossible and impractical. 8. That the Learned trial Magistrate erred in law and in fact by failing to uphold the principle of equal parental rights, duties, and responsibilities under the Constitution. 9. That the Learned trial Magistrate erred in law and in fact by unjustifiably restricting the access of a parent to the minors to just two hours in a week without any valid reason. 10. That the Learned trial Magistrate erred in law and in fact by ordering the transfer of the Minors from the school they are currently enrolled at. 11. That the Learned trial Magistrate erred in law and in fact by disregarding and failing to consider the evidence tendered by the Appellant. 5. He asked the Court to allow the appeal and set aside the Judgment of the lower Court. He also asked the Court to allow his Plaint in its entirety. 6. The Appeal was canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 2

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Appellant’s written Submissions 7. The Appellant submitted that the lower Court’s judgment is erroneous, arguing that the Court gave prominence to the dispute between the parties and failed to focus on the best interests of the Minors. He submitted that the Court should not have restricted his physical access to the Minors, arguing that there was no evidence that he had harmed them. He argued that having not harmed the Minors for the entire period he had actual custody, there were no reasons to deny him access to the Minors. He submitted that the best interests of the children tilted in favour of ensuring that the Minors had a relationship with their father. 8. The Appellant submitted that the custody orders issued by the trial Court do not have the optimal effect since they actually denied him and the Minor’s access to each other, thus hindering the proper growth and development of the Minors. He also argued that the right of access applies not only to him but also to the Minors, who have a right of access to their father. He submitted that his right of access has been curtailed and infringed upon for the last 10 months by the Judgment of the trial Court. He relied on the case of MAA versus ABS [2018] eKLR, KKJ versus WNK [2021] eKLR, and JKN versus HWN [2019] eKLR. 9. Lastly, the Appellant submitted that the lower Court failed to uphold the constitutional principle of equal parental responsibility. He submitted that in addition to directing him to pay the Minor’s school fees, it also directed him to be providing Kshs.15,000.00/= monthly as maintenance. He submitted that this amounted to saddling him with the entire financial responsibility despite acknowledging that the Respondent was equally actively employed. He argued that the Respondent should cater for the Minors’ food and accommodation when she has custody, just like her does despite paying for school fees. Respondent’s written Submissions 10. The Respondent submitted that the lower Court was right in restricting the Appellant’s physical access to the Minors, arguing that the Appellant had exhibited traits of uncontrolled anger and violent behavior which posed potential risk to the safety and emotional wellbeing of the Minors. She argued that in as much as the Appellant has a right to access the Minors, that particular right cannot and must not trump over the welfare of the Minors. She submitted that the restriction was not arbitrary but a reasonable and necessary measure aimed at safeguarding the minors from potential and/or existing harm. 11. She submitted that the restriction was not punitive in nature but a protective measure designed to safeguard the Minors while affording the Appellant an opportunity to pursue counseling and anger management. She argued that the judgment provides that upon successful completion of counselling, the Appellant was at liberty to move the court for variation of access orders. She submitted that the trial Court relied on factors which were germane, legally permissible, and supportive of safeguarding the Minor’s best interests. 12. Lastly, she submitted that the Court clearly upheld the constitutional principle of equal parental responsibility, arguing that the Court properly apportioned the respective obligations of the parties in a manner that each parent bore a fair share of the minors needs. She submitted that the apportionment by the lower Court is both reasonable and consistent with the best interests of the minors, since it ensures both parents remain actively involved and financially accountable in the upbringing of the Minors without unduly burdening either party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 3

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Issues for Determination 13. Upon considering the Grounds of Appeal and the submissions of the parties, I find that there are two issues for determination; a. Whether the lower Court was justified in restricting the Appellant’s physical access to the Minors. b. Whether the lower Court’s orders on custody and maintenance should be altered. 14. 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 demeanour 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. 15. Accordingly, this Court is being required to undertake a wholesome review of the Appellant’s suit at the lower Court and come up with its conclusion on the issues raised in this Appeal. Whether the lower Court was justified in restricting the Appellant’s physical access to the Minors 16. The lower Court found that the Appellant should not have any physical access to the Minors unless by duly signed consent of the parties and an anger management counselor. It however found that he would have video and phone access on every Wednesday between 6.00 p.m. and 7.00 p.m. and on Sunday and Saturday between 3.00 p.m. and 4.00 p.m. 17. The Appellant submitted that this restriction was not justified, arguing that there was no evidence to show he had harmed the Minors and that the restriction hinders their proper growth and development. The Respondent, on the other hand, submitted that the restriction was justified, arguing that the Appellant had exhibited traits of uncontrolled anger and violent behaviour which posed a potential risk to the safety and emotional well-being of the Minors. 18. Before making a determination about this, I shall first outline the position of the law on this issue. 19. The First Schedule of the Children Act, 2022, in interpreting Article 53 of the Constitution spells out best interest considerations thus: 20. 12. The effect on the child if one parent/guardian has sole authority over the child’s upbringing. 13. The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child. 14. The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child. I have also considered court pronouncements relevant to the dispute at hand. I have established that Courts have outlined circumstances where a parent’s right over their child(ren) can be limited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 4

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21. In MAK v RMAA & 4 others [2023] eKLR, the Supreme Court held that Courts can deny a child their right to parental care from a particular parent if it is proved with cogent evidence and valid grounds that that particular parent is not suitable or is incapable of taking care of the child. It observed as follows; “ It is evident from the foregoing provisions that the child has a right to parental care and it is in the best interest of the child that he is brought up and cared for by his or her parent. This right can only be denied if it is proved with cogent evidence and valid grounds that a parent is not suitable or is incapable of taking care of the child. Ultimately, therefore, a child needs both of their parents which is their right, especially where a parent’s incapacity has not been proven as we have found in this case. 22. In KKJ v WNK [2021] eKLR, the Court observed that in custody disputes, the violence of a parent becomes a key factor to consider if the violence rises to the level where it harms the children. It held; 20. As the issue of is a key factor in custody disputes, violence will only be a factor in a custody award if it rises to the level where it harms the children as for example it is assumed to happen when the parent in question has behaved so dishonourably that it affects the children through trauma. 21. In the present case, violence was established on a balance of probabilities (which is the correct standard to use) as there was showing of actual harm to the children”. 23. In my view, the above provisions and authorities establish the principle that a parent’s right over their child(ren) can be restricted if it is proved with cogent evidence and valid grounds that that particular parent is not suitable or is incapable of taking care of the child. They also establish that a parent’s violent behaviour can be used against them in a custody dispute where such violence harms the child(ren) or affects the children through trauma. 24. Having set out the law on this area, I shall now revisit the Appellant’s case at the lower court and reexamine the evidence on record to determine whether the lower Court was justified in restricting the Appellant’s physical access to the Minors. 25. PW1 was the Appellant. He told the Court that the Respondent had been assaulting the Minors and that the Respondent had been charged, in a criminal case, with threatening the minors. He also stated that there is an active criminal case against the Respondent for assaulting one of the Minors. He also admitted that he has been charged in a criminal case based on a complaint filed against him by the Respondent and one of the Minors. He stated that both cases (the one against him and the other against the Respondent) are still active at Makadara Law Courts. 26. DW1 was the Respondent. She told the Court that the Appellant is a violent man and would beat her in the presence of the Minors. She admitted that there is a criminal case against her, in which the Appellant is the complainant. She told the Court that the matter was still active and had not been determined, but denied assaulting the Minor. 27. I also note that the lower Court received three reports from various children officers. I shall discuss the contents of the said reports. One of them is dated 26th July, 2023, by Alex Chacha, a Children’s Officer, Athi River sub County, who had an opportunity to interview two minors, Ry.K.K and Ro.K.K. I have seen the said report. It states that the two minors expressed their love and affection for both parents and that they received equal treatment from both. 28. There is also a report dated 26th July, 2023, and done by a Children’s officer, Embakasi Sub-County, who had an opportunity to interview the Minors. I have seen the said report. It states that the children https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 5

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are happy and jovial staying with their father who takes good care. It also states that, one of the Minors, Ra.K.K, narrated how their mother (Respondent) badly handled their sister by throwing and shouting at her because of vomiting while she was feeding. 29. Finally, there is a report dated 3rd October, 2024 by Nyaranga Odundo, Children’s Officer, Milimani Children’s Court, who also had an opportunity to interview the Minors. I have also seen the said report. It states that from the interview, their family relationship appears to have a close bond. 30. The question before this Court is whether the above facts disclose a ground on which the Appellant’s physical access to the Minors should be restricted. 31. It is evident that both parties have instituted criminal proceedings against each other and that the said proceedings are currently active before the Courts. I appreciate that in criminal proceedings, the accused person has a constitutional right to be presumed innocent until proven guilty. For this one reason, I find that, until the said matters are determined, the counter-accusations between the parties that the other had assaulted one of the minors are merely that; accusations. Therefore, there was no evidence to show that any of the parties had unlawfully assaulted the Minor(s). 32. In addition, the Respondent testified that the Appellant is a violent man and that he had previously assaulted her in the presence of the Minors. On this issue, I find that it was the Respondent’s words against the Appellant’s words. The Respondent did not call an additional independent witness to corroborate that the Appellant had assaulted her in the presence of the Minors. I have noted that, in the three reports, the Minors did not report or disclose anything prejudicial on the Appellant’s conduct or his relationship with their mother. 33. For this reason, I find that the Respondent did not substantiate her claims that the Appellant assaulted her in the presence of the Minors. 34. In addition, the Respondent claimed that at one time, the Appellant challenged one of the tenants to a physical fight. The Appellant was cross-examined about the alleged incident, and he admitted that, indeed, he had challenged the other tenant for a physical fight. He also clarified that they did not fight and eventually resolved the issue amicably. 35. Before we rush to pick this incident and brand the Appellant as a violent man, I find it prudent to see the incident in its proper context. In that incident, it was said that a child of the other tenant had allegedly assaulted one of the Minors herein. The two parents had an altercation about the incident, and during the altercation the Appellant challenged the other tenant to come out so they could sort it out physically. 36. While the lower Court chose to see the incident as an indication that the Appellant is a violent man, I do not see it that way. In my view, the incident invokes a discussion on how far a parent can/should go to protect their own child. The lower Court, which I appreciate had the advantage to observe his demeanour, chose to use the incident against the Appellant. To the contrary, I will not use the incident against the Appellant although challenging a physical fight would not have been the best way to approach the issue. 37. Lastly, in the Judgment, the lower Court found that the Appellant had uncontrolled anger which could pose a danger to the Minors herein. The Court said that it had arrived at this finding based on two facts: (i) the Appellant’s conduct in court on 3rd October, 2024 and (ii) the Appellant’s incident with another tenant, which I have already discussed above. 38. I now turn to the Appellant’s conduct in court on 3rd October, 2024, which the lower Court found as a basis to find that he had uncontrolled anger. The record shows that on 3rd October, 2024, the Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 6

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demanded to be given the Minors. The Court noted his demeanor and recorded the same in the Court proceedings. It recorded as follows: “Plaintiff: I demand to be given my children it is not K children. I demand my children! (demeanor noted).” The Court noted nothing more about the incident. 39. I appreciate that the lower Court had the privilege and the opportunity to see the Appellant give his testimony and observe his demeanor, to which he recorded on the Court proceedings. I do not have a similar advantage to observe his demeanor. Therefore, based on the lower Court’s observations, it could be that indeed the Appellant has uncontrolled anger. 40. According to the Supreme Court MAK v RMAA & 4 others (Supra), the law requires that there must be cogent evidence to show that a particular parent is not suitable or is incapable of taking care of the child. Similarly, according to KKJ v WNK (Supra), the violence of a parent becomes a key factor to consider if the violence rises to the level where it harms the children. 41. In my view, it is not enough to show that a parent has uncontrolled anger. The party intending to use this against the other parent must prove that, as a result of the uncontrolled anger, the other parent is not suitable or is incapable of taking care of the child(ren). This ought to be proved through cogent evidence demonstrating that the parent’s conduct harms the children in terms of either emotional stability or physical safety. 42. In the instant case, the Respondent did not provide evidence to demonstrate that the Appellant’s uncontrolled anger had caused any harm to the Minors. The Respondent’s claim that the Appellant had assaulted one of the Minors is still awaiting determination at Makadara Law Courts. In addition, she did not substantiate her claims that the Appellant had assaulted her in the presence of the Minors. Lastly, in the three reports, the Minors did not report or disclose anything prejudicial on the Appellant’s conduct or his relationship with their mother (the Respondent). 43. Based on the above observations, I find that the lower Court was not justified in restricting the Appellant’s physical access to the Minors. Whether the lower Court’s orders on custody and maintenance should be altered 44. I have looked at the evidence to determine the age of the Minors at the time of this Judgment. According to the Record, Ry.K.K is a male child born on 9th July, 2010, thus he is 15 years. Ro.K.K is also a male child born on 12th July, 2014, thus he is 11 years. Ra.K.K is also a male child born on 5th November, 2015, thus he is 10 years. Lastly, V.C.K is a female child born on 26th April, 2021, thus she is 2 years old. Therefore, three of the Minors are little boys, of whom one is a teenager in Senior school, while the other two are still in Junior school. It is also clear that 3 of the Minors are children of tender years. 45. I have seen photos taken by the Appellant in the company of the Minors at different times. In the photos, the Minors look happy in the company of the Appellant, as it should be. In one of the photos, the Appellant had taken Ro.K.K and Ra.K.K for a sporting event and they appear very excited about it. 46. I also note that the oldest Minor is a teenager aged 15 years. Based on that age, I presume that he truly needs the presence and guidance of his father as he navigates through his teenage years and adolescence to adulthood. 47. Based on these facts and the evidence on record, I find that this is a case where the physical custody of the Minors should be shared equally as is practicable, given the educational decisions made by both parents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 7

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48. I have also considered that both parties are employed. The Appellant is a professional engineer working with [Particulars Withheld] as a consultant on an infrastructure project, while the Respondent is an Accountant at [Particulars Withheld]. 49. The Respondent stated that she lives in a three-bedroom house in a conducive environment, and that she has enough time to spend with the Minors and even supervise their school homework. On the other hand, there was evidence to show that the Minors had challenges with reporting to school on time during the period that the Appellant had their actual custody, to the point that it got the attention of the school administration. For these reasons, I find that the Respondent is more suitable to stay with the Minors during school sessions. 50. Consequently, I also find that Minors should be retained at their current school, the one they are attending at the time of this judgment. Disposition 51. The Appeal succeeds, though partially. 52. These are the final orders of the Court. 53. a. The judgment of the lower Court is hereby set aside. b. There shall be joint legal custody of the Minors as both parents have a right to participate and make inputs in the major decisions concerning the children, including but not limited to the educational, religious, and medical decisions. c. The physical custody of the Minors will be shared equally as is practicable, given the educational decisions made by both parents. d. For more clarity, the Respondent shall have primary custody and care of the subject Minors when schools are in session, while the Appellant shall have custody of the subject Minors on two alternative weekends of every month from Saturday 9.00am to Sunday 4pm. The Appellant shall also have actual custody of the Minors for half of the period of the school holidays and school breaks. e. That while in the custody or care of one party, the other shall have reasonably liberal visitation rights to the Minors. f. Both parties have medical covers and they shall maintain the Minors in their respective medical covers. g. The Appellant shall pay school fees and school-related expenses for all the Minors at the rate of the current schools. h. The Respondent shall take care of the food for the Minors and clothing. i. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 8

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JUDGE In the presence of: Court Assistant: Beryl Mr. Odongo Advocate holding brief for Wandei Advocate for the Appellant VCK - Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4112/eng@2026-03-19 9

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