Acw v Jmi

3. The respondent did not file a response to the suit. The proceedings show that he appeared before the lower court once, on 5th May 2025, during the initial proceedings. He informed the court that he would be appearing in person and also sought time to instruct a lawyer to file a response. He never turned up afterwards, and the case proceeded in his absence. 4. The appellant testified, and the minor was also interviewed by the court in the absence of the appellant. The court took down responses to the questions put to the minor. 5. In a judgment delivered on 3rd September 2025, the court made the following orders: a. A declaration is made that both the plaintiff and the defendant have equal parental responsibility of their child namely A.I.M.W; b. Both the plaintiff and the defendant, as parents of the minor A.I.M.W, shall have equal care, control and legal custody of the minor; c. The plaintiff shall have actual custody of the children (sic) while the defendant shall have access to the child in the following terms: d. 6. i. The plaintiff shall live with minor during school days being Mondays-Fridays and the defendant shall have access to the minor on one weekend in a month. ii. During school holidays, the defendant shall have the first half period to live with minor and the defendant shall have the last half period to access the minor from 10am to 5pm on the days of access; iii. The exchange shall be at Diani police station, children’s office supervised by the OCS Diani police station; iv. In order to ease the minor to know and relate with his father, on the Saturday the defendant is to access the minor, a counselling session by a children’s counsellor shall be pursued at the defendant’s costs and arrangement. Both the plaintiff and the defendant shall meet the needs of the minor and ensure he does not lack essentials in relation to education, healthcare, shelter, entertainment, food, and clothing in the following terms: i. The items shall be in time of the expenditure of the minor per month. ii. The total expenditure. KShs 133,162 shall be met equally by both parents, hence, each parent shall meet KShs. 66, 581 per month. iii. The defendant is to pay his half to the plaintiff and file proof of the same and the plaintiff is to file proof that the said sums have met the expenditure. iv. The failure of either party to meet the child’s expenditure shall result to contempt of court and shall extinguish access/actual custody of the minor. e. On the issue of relocating the country and changing the minor’s school, the legal custodians shall decide if and when it becomes ripe. f. This being a family matter, both parties shall bear their own costs. The appellant was dissatisfied with the judgment and those orders and has filed the present appeal based on the following grounds: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 2

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a. The learned magistrate erred both in law and fact in considering issues and granting orders which were not pleaded by the plaintiff nor raised by any other party at any time during the proceedings and hearing of the suit. b. The learned magistrate erred both in law and fact in failing to consider that the matter had proceeded as an undefended suit and granted orders in favour of the defendant contrary to the best interests of the minor and principles of natural justice. c. The learned magistrate erred both in law and fact by misrepresenting the pleadings and evidence of the plaintiff and the minor as adduced during the hearing of the undefended suit in relation to the following material issues. 7. Learned counsel for the appellant filed submissions urging the appeal. The same are set out and considered in the analysis that follows. 8. I have carefully considered the grounds of appeal, the record of the Children’s Court, and the submissions of learned counsel. The issues for determination are whether the Children’s court made orders that were extraneous to the case, whether, in considering an undefended cause, the lower court should have granted all the orders sought by the appellant, and whether the evidence relied upon by the lower court was as presented to the court by the appellant. 9. This being a first appeal, the duty of the court is to reconsider the evidence, evaluate and analyze it, and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example, Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126, it was held 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. 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955),22 E.A.C.A. 270)”. 10. At the hearing before the lower court, the appellant testified, and the court also examined the minor to get his views. 11. The appellant gave evidence on 4th July 2025. She adopted her witness statement dated 30th June 2025 as her evidence in chief. Her evidence was that she is a Swedish national and holds a Class D Kenyan work permit valid from 10th December 2024 and expiring on 10th December 2025, and renewable subject to her employment contract. She works as a General Manager with KK in Diani. She produced two pay slips from CRL in her name. 12. She testified that the respondent is the father of their child, A.K.M. W., the minor in this case who was born on 27th August 2018, and is Kenyan by birth, as confirmed by the certificate of birth. He should now be about seven years and eight months old. The appellant said that the child has Kenyan and Swedish nationalities, but holds a Swedish passport only because the respondent had not applied for the Kenyan one. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 3

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13. The appellant gave evidence that they reside at K. area within Kwale County with her child in an accommodation provided by her employer. 14. She described her relationship with the respondent, leading to the birth of the child, as an on-and-off boyfriend, and that the same ended in the year 2021 when the child was about 3 years old. 15. The appellant testified further that the respondent operates a yoga company, but she did not know where he resided. 16. On the relationship between the respondent and the child, she said that she and the child last saw him in July 2024 at a restaurant in Diani, through a planned meeting. She said further that the child knows his father, but it is unclear whether he can identify him. She, however, said that the child does not ask about him. 17. The appellant stated in evidence that she has all along had the care, maintenance, and control of the child. That she has been making all the decisions involving the child, for example, selecting his school and activities, and meeting all his life expenses such as food, clothing, and schooling. The child attends T. A. school, where he is being instructed in the British curriculum. The school is multicultural, and Kiswahili is taught, hence the minor understands it. She stated that she had not received any money for maintenance, food, and clothing for the minor from the respondent. 18. The appellant testified that she desires the minor to have a connection with both his Kenyan and Swedish roots. She said she often travels with the child once a year to see her parents and relatives in Sweden. She stated that her father, uncle, and family members have a good relationship with the minor. To the contrary, the respondent’s family had not seen the child in a while, hence they lacked contact with him. She said that initially, she had close contact with the respondent’s sister before she gave birth, but they lost contact in 2021. 19. The appellant told the court that what she wanted was the best for her child, and that Sweden offers an attractive school structure with free education to university level. She said that the Kenyan and British systems of education that her son is undergoing are different, and it is expensive. She therefore wished that her child would benefit from the Swedish system and she would like him to attend school there. 20. The appellant testified that since the Children’s court issued interim custody and maintenance orders, the respondent had not shown any willingness to have access to the minor even after being allowed to do so by the court. She usually communicates with him on the phone. She had adhered to the court ruling and had not travelled out of the country to Sweden, as is her norm. She wished to be allowed to travel there at least once a year. If her wish was granted, she would be coming back to Kenya, as she does not want to take the child away from Kenya. Further, she wishes the father to participate in the child’s life as long as it is safe. 21. The appellant told the Children’s court that she has been in Kenya for 10 years, she has friends, and owns a car in Kenya. She expressed her desire to retire in Kenya, which she described as an absolute dream. Further, if her child had land in Kenya, she would like it. However, she reiterated that she does not wish to be chasing the respondent around for permission, as he is inconsistent and limited in taking initiative. She stated that the respondent was inconsistent with his child and had never shown any interest in him. He has not attended to the child’s needs even when he is sick or in school meetings. 22. In the camera interview with the minor in the absence of the appellant, the minor told the court that he was six years old. The minor told the court that he lives at K. K. with his mother, the appellant. He said that his parents broke up, and they did not love each other anymore. He stated his mother’s name as A. W., his grandfather’s name is W., and his second name is also W. The minor said further that he https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 4

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did not know his father’s name, and he did not know his father’s parents, and further that he was not sure of his sisters. The minor added that he did not know where the respondent lived, but a long time ago, he lived at K. K., and he thought he also worked at K. K. 23. Further, the minor stated that he saw his daddy last at Woodfires, but he was not sure of the date. They called him. He came, and he had time to talk to him. The minor told the Children’s court that he would like to see his daddy and spend time with him on some days. 24. The minor said he goes to a named school. He stated that he has six friends in school, Mr. J is his teacher, and he likes his school. He also told the court that he likes playing there and being with his friends. 25. The minor stated that he goes to Sweden, and he liked it as things last longer. He has several friends there whom he named. He told the court that he loved both Kenya and Sweden. He did not mind going to school in Sweden, and he was also okay studying in Kenya at his current school. 26. It was upon this evidence that the Children’s court made the orders that the appellant was dissatisfied with, leading to this appeal. 27. Learned counsel for the appellant submits that the respondent’s conduct, as demonstrated in his appearance in court once and then absconding, is a clear demonstration of his relationship with the minor. For that reason, he is an absentee father. 28. Learned counsel submits that the respondent’s lack of interest in the minor cannot be construed as being in the minor’s best interests. 29. This court noted that the Children’s court had not called for a report of the Children’s officer and therefore called for one. The same was submitted on 2nd March 2026. 30. The report indicates, with respect to the appellant and the respondent, that the minor herein is their only biological child. The respondent was interviewed on the phone as he was not physically available. His contact was provided by his sister J, who said she resides in Nairobi. The respondent reported that he takes care of his said sister’s two children after the respondent’s and his sister’s mother passed on. 31. Most of the information contained in the report is as per what the appellant told the Children’s court. 32. The report concluded by noting that the respondent had no objection to the appellant being granted sole legal custody of the minor. He pointed out that he was financially unprepared to provide any custody for the minor. He wishes to be granted unlimited access to the minor with limited contribution towards his upkeep and nurture, depending on his ability. 33. It is evident from the record of the Children’s Court that the respondent was duly served with the court process, he attended court once, and he participated in the day’s proceedings. Further, there is an affidavit of service filed herein, sworn on 6th October 2025 by Moses Kimundia, process server. It confirms that the respondent was duly served with the appeal. I have also considered the report of the Children’s Officer filed herein, and I am satisfied that the respondent is well aware of the proceedings herein but he has chosen to stay away. This reinforces the appellant’s position, as supported by the minor’s responses during his examination by the court, that the respondent has failed to be involved in the minor’s life. In my assessment, this amounts to a breach of parental responsibility bordering on neglect of the minor, considering that the respondent is said to be engaged in an income-generating activity, a fact which he confirmed to the Children’s Officer from his stated position that he is taking care of his sister’s two children. If he can take care of his sister’s two children, then failure to be involved in his own child’s life can only be described as negligence on the respondent’s part and the same should not be countenanced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 5

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34. The appellant submits that the respondent was granted access to the minor by the Children’s Court, when such a prayer had not been made. Despite the negative report about the respondent’s relationship with the minor, I note that the minor, young as he is, upon examination by the Children’s court, expressed his wish to have contact with his father, the respondent, and that he cannot be denied, as that would be against his best interests. Further, the appellant said in evidence that she is not opposed to the visitation of the minor by the respondent. Therefore, the ground of appeal alleging that the learned magistrate misapprehended the unrebutted evidence by holding that the respondent was entitled to access to the minor, whereas the evidence showed that he had no such interest, cannot hold sway. Access to a child is part of parental responsibility, which is provided for under the Constitution and the Children’s Act. It need not be prayed for. 35. The right to parental care is a right available to every child under section 11 of the Children’s Act. In particular, sub-section 6 provides that: “ (6) 36. Subject to subsection (3), every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with the parent or parents on a regular basis, unless it is shown to the satisfaction of the Court that such contact is not in the best interest of the child.” Further, section 103(2) and (3) provide that: 2. Where a custody order is made giving custody of a child to one parent, or in the case of joint guardians, to one guardian, the Court may order that the person not awarded custody shall nevertheless have all or any rights and duties in relation to a child, other than the right to actual possession, jointly with the person who is given custody of the child. 3. The rights specified in subsection (2) include the right of access to the child on such terms as the Court may direct. 37. In the same terms, the other ground of appeal that the learned magistrate acted outside the scope of her discretion in granting the respondent access when the same had not been sought or pleaded by the appellant is without merit. The appellant pleaded in her claim that the court could make any other order that would be in the best interests of the minor. There has not been shown through the evidence tendered in the Children’s court or the report of the Children Officer, any egregious or reprehensible conduct by the respondent to deny him access to the minor. The appellant said she had no objection to such access, and the minor also said that he wished to see his father. In those circumstances, the submission that the order of access was not prayed for and ought not to have been granted is misplaced and must be rejected. 38. I, however, agree with the ground of appeal and the submissions in support thereof that certain orders made by the Children’s court were uncalled for. For instance, the Children’s court granting access by the respondent to the minor through a police station cannot be said to be in the best interests of the child. A police station cannot be a conducive environment where a parent can have a relationship with a child. Similarly, the order that the minor undergo counselling sessions was not supported by any evidence on record that the minor had undergone any traumatic situation necessitating the same. Those orders must be and is hereby set aside. 39. I also agree with the appellant that the learned magistrate imported into the judgment material that was clearly not part of the case. For instance, paragraphs 56 and 57, where it is indicated that there was a certificate of marriage produced in evidence as exhibits and that there were two issues of such a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 6

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marriage, are clearly out of place in that judgment. It is apparent that the learned magistrate failed to properly edit her judgment. I find such parts of the judgment to be surplusage and are hereby struck out. 40. The appellant’s other ground of appeal is that the learned magistrate erred in both law and fact in issuing orders of maintenance where none was pleaded or sought by the appellant, and that the respondent had not contested the same. The appellant feels that it will be bothersome for her to keep following up with the respondent for the child’s maintenance when he already has little involvement in the child’s upkeep. However, the fact that the appellant can meet all the minor’s needs does not mean that the respondent should be excluded from providing for the minor as part of his parental responsibility. What is considered is the best interests of the child and not the convenience of the parents. Therefore, the learned magistrate was correct insofar as the order would help the respondent to maintain contact with the minor. She was properly guided by the law on the issue and as further expounded in the case of IMM v JMN [2024] KEHC 4766 (KLR) where it was held that a child’s right to parental responsibility cannot be relinquished by a parent, and I agree with that position. 41. I note, however, that in the report filed by the Children’s officer, the respondent has stated explicitly that he is not able to provide any form of maintenance. I have found above that this was not proper of the respondent as it amounts to abdication of parental responsibility towards the minor. All the same, in view of his stated position and since the appellant is ready, willing, and able to take care of all the needs of the minor, I find that the order was unnecessary and is hereby set aside. 42. Section 103(1)(a) and (b) of the Children’s Act provide for the requirements that the court needs to take into account when making a custody order. Among them are the conduct and the wishes of the parent or guardian of the minor, and the ascertainable wishes of the minor, taking into account the child’s evolving capacity. 43. I have therefore taken into consideration the following factors in arriving at the decision herein. a. Each parent’s preference. Both parents preferred that the minor be under the custody of the appellant. b. The ascertainable wishes of the child at his age. The minor expressed his wish to be under the custody of the appellant with opportunities to be seen by the respondent. c. The child’s age and individual needs. The appellant would be readily able to provide for the minor’s individual needs at this tender age, whereas the respondent expressed his inability to do so. d. The relationship or bond between the child and the parent. From the proceedings before the Children’s court and the Children Officer’s report filed herein, it has emerged that the minor has a closer bond with the appellant than the respondent since the respondent barely shows up in the minor’s life. However, the minor also expressed a wish to have contact with his father, the respondent. e. Each parent’s mental and physical capacity to take care of the child. There was no hindrance to either of the parents’ physical or mental capacity to have custody of the minor, and so on, that ground, both were capable parents. f. Each parent’s financial ability to provide the child with necessities. The appellant proved her ability to make life’s provisions for the minor without the involvement of the respondent. The respondent felt that he was inadequately financially endowed to take care of the minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 7

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g. The quality of life the child has in his current situation. The minor has a good quality of life while in the current custody of the appellant. The way of life of the respondent was not conclusively established as the Children’s officer only had an interview with him on phone. 44. One other issue that appellant wished the court to consider was the child’s nationality. She said that the minor has dual nationality, Kenyan and Swedish. However, evidence of the Swedish nationality was not produced before the Children’s Court or this court. The appellant said that the child held a Swedish passport, but the same was not produced in court as evidence. Further, there was no attempt to demonstrate to the court the Swedish law on dual nationality. In the absence of that evidence, it is difficult to find with certainty that the child would enjoy all the rights of a Swedish national as asserted by the appellant. 45. I have also taken into account the appellant’s evidence that she is on full-time employment in Kenya and intends to take up Kenyan nationality in the long run and even retire in Kenya if that would be possible. If indeed that happens and she can settle in Kenya, it is only proper that the child has a closer relationship with his father, even as the appellant is granted sole custody of the child to enable her to take full control and care of his needs. 46. Taking all these factors into account, I find that, considering the best interests of the minor, the orders made by the trial court are to be varied. 47. Consequently, some of the orders granted by the Kwale Children’s Court are set aside as indicated above, and others are varied to provide as follows: a. b. 48. The appellant shall have the sole legal and physical custody of the minor with the following two important riders: i. The respondent shall have visitation rights over the minor at his expense, wherever the child is, and only with prior arrangements and concurrence of the appellant made through the nearest Children’s Office in advance. The appellant shall not unreasonably deny such rights of visitation. ii. The appellant shall not relocate the child out of this court’s jurisdiction (read to permanently reside out of Kenya) without this court’s prior permission sought and obtained. Relocation in this case shall mean staying out of the country for a period of more than 12 consecutive months. This is to ensure that the minor does not completely cut contact with the respondent, who is his father, even as he can attend studies elsewhere, as the appellant may decide. Either party is at liberty to apply to this or the Children’s Court for a variation of the orders herein as circumstances demand. This is a family matter; the appellant shall bear her own costs of the appeal. DATED, SIGNED, AND DELIVERED AT KWALE IN OPEN COURT THIS 22ND DAY OF APRIL 2026. ANDAYI W. F. JUDGE In the presence of: Wangeci Akedi (Ms) for Appellant. The appellant is present. No appearance for the Respondent. Ummu: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7462/eng@2026-04-22 8

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