ML v VC

4. The Plainti's case is that the Defendant has, on several occasions, left the matrimonial home without notice, either leaving the minor behind or taking her away without communication. The periods particularised in the Plaint include March to September 2022, February 2023 for approximately three weeks, November 2023 to November 2024, April to September 2025 and October 2025 to the date of ling. 5. It is the Plainti's contention that these movements and periods of absence disrupted the minor's routine, schooling and emotional security. He further alleges that the Defendant was verbally abusive, quarrelsome and physically aggressive towards him in the presence of the minor and that she made statements to the minor concerning other women allegedly associated with the Plainti. 6. The Plainti further alleges that in 2024 the Defendant relocated with the minor to Limuru, exposing the minor to what he describes as extremely cold conditions, with adverse eects on the minor's health. 7. The Plainti maintains that he has remained consistently involved in the minor's upbringing and is able and willing to provide full-time care, and that it is in the minor's best interests that custody, care and control be vested in him. 8. Despite service of the pleadings and notice of the suit, the Defendant did not enter appearance or le a Defence. The matter therefore proceeded undefended. The matter proceeded to hearing on 8th July 2026. The Plainti testied and adopted his witness statement dated 2nd March 2026 and the documents led in support of his case. The Court also had the benet of the Children Ocer's Report dated 19th May 2026, which is part of the Court record and shall hereafter be referred to as the COR. 9. The matter was thereafter mentioned on 22nd July 2026 to conrm ling of submissions. The Plainti's submissions were led, and the Court has read and considered the same together with the pleadings, evidence, documentary exhibits and the COR. 10. From the pleadings and evidence, the issues for determination are: i. Whether the Plainti has established a basis for the grant of custody, care and control of the minor; and ii. What orders are in the best interests of the minor? 11. Article 53(2) of the Constitution provides that the best interests of a child are of paramount importance in every matter concerning the child. This constitutional command is given eect by section 8 of the Children Act, 2022, which requires the best interests of the child to be the primary consideration in all actions concerning children. 12. Section 95 of the Children Act further requires the Court, when considering an order concerning a child, to have regard to matters including the child's physical, emotional and educational needs, the likely eect of a change in circumstances, any harm suered or likely to be suered, and the ability of each parent to provide for and care for the child. Section 103 similarly directs the Court, in making custody orders, to consider the conduct of the parents, the child's ascertainable wishes, any harm suered or likely to be suered and, ultimately, the best interests of the child. 13. I am also guided by the First Schedule to the Act, which expressly identies, among other considerations, the duration and adequacy of the child's existing living arrangements, continuity of care, stability of proposed arrangements, the child's adjustment to home and school, the capacity of each parent to facilitate contact with the other parent, and the existence of domestic abuse and its eect upon the child's emotional stability and physical safety. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/855/eng@2026-09-02 2

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14. It is also necessary to address the fact that the minor is of tender years. The traditional tenderyears doctrine cannot, in the modern constitutional framework, operate as an inexible rule that automatically entitles a mother to custody. The controlling consideration remains the best interests of the child, with both parents having parental responsibility. This position has been armed in SMM v ANK [2022] KEHC 1043 (KLR) and subsequently applied in custody disputes. 15. In the present case, the Defendant did not le a Defence and did not participate in the proceedings. Consequently, the Plainti's evidence remains uncontroverted. That, however, does not relieve this Court of its duty to independently determine what is in the best interests of the minor. 16. The Plainti placed before the Court documentary evidence relating to the minor's schooling, payment of school fees, medical cover and other matters demonstrating his involvement in the child's upbringing and his capacity to provide for her material needs. The evidence establishes that the Plainti has been actively involved in the minor's education and welfare and has provided a stable home environment at Malaba. 17. The Court has also considered the COR. The Children's Ocer conrms that this is a contested custody dispute between two biological parents who continue to bear parental responsibility for the minor. The report records that the Plainti participated in the inquiry and expressed concern regarding the minor's welfare and his desire to assume a more active caregiving role. 18. Of signicance, however, is that the COR records that the minor has been in the actual care and custody of her biological mother, who relocated with her from Malaba to Mombasa. The report further records that eorts to engage the mother did not yield cooperation and that, because of the child's residence outside the jurisdiction, the Children's Ocer was unable to directly engage the minor and independently ascertain her views, lived experiences and current welfare circumstances. 19. I have therefore approached the COR with the necessary caution. It provides useful information regarding the circumstances of the parties and the minor but does not amount to an independent assessment of the minor's present views or living conditions. Indeed, the Children's Ocer expressly acknowledges the limitations occasioned by the non-engagement of the mother and the inability to directly assess the child. 20. Nevertheless, the Plainti's uncontroverted evidence raises legitimate concerns regarding the continuity and stability of the minor's care. The allegations of repeated periods of absence, movement between locations and disruption of the minor's schooling and routine were not challenged by the Defendant. 21. The Court is particularly concerned with the eect of instability upon a child of ve years. At this developmental stage, continuity of care, predictable routines, educational stability and emotional security are important considerations. The Court is not persuaded that the minor's welfare should be determined solely on the basis of which parent is nancially better placed. What is required is an environment in which the child can receive consistent care, protection, guidance, education and emotional support. 22. I have also considered the fact that the minor is presently in the actual care of the mother. Ordinarily, continuity of care is an important factor and a Court ought not lightly disrupt an established arrangement. However, continuity is not an end in itself. It must be assessed against the quality and stability of the existing arrangement and the likely eect of maintaining it. 23. In the circumstances of this case, the Plainti has demonstrated a stable residence, consistent involvement in the minor's education and provision of her material needs. His evidence concerning the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/855/eng@2026-09-02 3

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instability occasioned by the Defendant's movements and periods of absence remains uncontroverted. I am therefore satised that the Plainti has established sucient circumstances warranting an order for custody, care and control in his favour. 24. This Court is nevertheless conscious that the Defendant remains the minor's biological mother and continues to bear parental responsibility. An order granting custody to the Plainti does not extinguish the Defendant's parental responsibility. The minor is entitled, so far as consistent with her best interests, to maintain a meaningful relationship with both parents. Section 11(6) of the Children Act recognizes the child's right to maintain personal relations and direct contact with a separated parent unless such contact is shown to be contrary to the child's best interests. 25. The Court therefore considers that the appropriate orders should protect the minor's stability while preserving her relationship with her mother. 26. In the result, and having considered the pleadings and evidence presented before this court I nd that the Plainti has proved his case on a balance of probabilities and make the following orders; a. Legal custody of the minor, R.L, is hereby granted jointly to the Plainti and the Defendant. b. Actual care and control of the minor is hereby granted to the Plainti, M.L. c. The Defendant shall have reasonable access to the minor, including physical access during school holidays and such other reasonable periods as the parties may mutually agree, provided that such access shall not disrupt the minor's schooling, routine, health or emotional wellbeing. d. The Defendant shall surrender the minor's original birth certicate to the Plainti for safe custody and for purposes of facilitating the minor's schooling, healthcare and other lawful administrative requirements. e. In view of the nature of these proceedings and the continuing parental relationship between the parties, there shall be no order as to costs. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATE COURT THIS 2ND DAY OF SEPTEMBER, 2026. In the Presence of the M.L the Plainti Mr. Batwaula Counsel for the Plainti n/a for the Defendant Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/855/eng@2026-09-02 4

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