Whether the trial Magistrate erred in law to grant actual custody of the Minor to the Respondents sister, who was not a biological parent to the child.
19.It is not in dispute that the parties herein are the biological parents of the Minor M.O.R who was born on 20th June 2016. The parties herein had their marital difference and in July 2018, the Respondent did move out of their shared matrimonial residence and sought refuge at her elder’s sister’s residence at Syokimau. Due to financial depravity she sought and got a Job at Jumeirah hotel at Dubai as a waitress and had been there since November 2018. The Minor remined with her sister and she provided for him. The Appellant did look for his child and in February 2019 took him into his custody which act gave rise to this suit.
20.Article 53(2) of constitution of Kenya ,2010 states that ;
21.Section 4(3) of the Children’s Act provides that;
22.Section 102(3) of the children’s Act states that;1.A court may, on the application of one or more persons qualified under sub section (3), make an order vesting the legal custody of a child.”3.Any of the following persons maybe granted custody of a child –a.A parent;b.A guardianc.Any person who applies with the consent of a parent or guardian of a child and has actual custody of the child for a period of three years preceding the making of the application, unless the court is satisfied on the evidence that a shorter period is sufficient to justify an order made in determination of the application; ord.Any person who, while not falling within paragraph’s (a), (b) or (c), can show cause, having regard to section 101, why an order should be made awarding the person custody of the child.”
23.Section 103 (1) of the children’s Act provides the principles to be considered while making an order for custody and these include the conduct and wishes of the parent or guardian of the child, Whether the child has suffered any harm or is likely to suffer any harm if the order is not made and the best interest of the child.
24.As stated in M.A. Vs R.O.O HCC CIVIL APPEAL NO 21 of 2009 & D.K Vs J.K.N (2011) both cited in K.M.M Vs J.I.L (2016) Eklr it is agreed that the general rule is that, where the custody of a child of tender years as defined by section 2 of the children’s Act is in issue, the mother of the child should have custody unless special circumstances are established to disqualify the mother from having the custody of such a child.
25.Both parents hold contrary views as to who should have custody of the minor and since the primary matter is yet to be heard on merit, evidence adduced and a determination made as to which party is in the best position to be given custody of the minor, this court will refrain from making any conclusive finding on the facts pleaded. Be that as it may the appellant did plead in his replying affidavit at paragraph 9 that it was not unusual for him to arrive late even on weekends as his job entails handling assignments via teleconference with foreign partners. He did not state what alternative arrangement he had put in place to have the child taken care of in his absence and even the social inquiry report did not give much information as to the measures put in place to take care of the minor who was about three (3) years old as at then.
26.The respondent moved out of her matrimonial home in July 2018 and went to reside with her sister Domitila Makuta in Syokimau. She stated that the said sister had two children, the last born being a teenager at high school. Her brother also lived in the same compound hence it was a safe place for her and the child. Prior to permanently moving out the respondent also pleaded that whenever they had their differences with the appellant, she would always seek shelter at the said sister’s residence in Syokimau.
27.It was therefore evident that the child was in an environment where his physical, emotional and educational needs could be taken care off. When making the ruling being challenged it is these factors that the trial magistrate took into consideration and found that in the circumstances of this case the best interest of the child was not to destabilize the environment where he was being raised and there were no exceptional circumstance’s shown to warrant disturbance of the said set up. The said decision cannot be faulted.
28.The appellant further faulted the court for placing the custody of the minor on a third party who was not a parent and who was not a party to the proceedings. Section 102(3) of the children’s Act allows the court to vest custody of the minor on a “Guardian”. As stated in K.M.M Vs J.I.L (2016) eKLR
29.Under African cultural set up it is commonly said that “ It takes a village to raise a child”. The respondent too has to provide and take care of her child. She found an opportunity to work as a waitress in Jumeirah Hotel in Dubai and thus cannot be faulted for leaving the child with her sister. What is of utmost importance and consideration by the court is that the child is in a safe, healthy environment which is secure and helps him flourish and develop. The appellant too did show he is capable of taking care of the child, but failed to provide evidence of the support system he had in place which was more conducive for the child as compared to where he was staying.