ZAO & JIO (Minors Suing Through their Father and Next Friend DOI) v MKC

(Civil Appeal E068 of 2021) [2024] KEHC 87 (KLR) (15 January 2024) (Judgment)
Neutral citation: [2024] KEHC 87 (KLR)

REPUBLIC OF KENYA
IN THE HIGH COURT AT BUNGOMA
CIVIL APPEAL E068 OF 2021
DK KEMEI, J
JANUARY 15, 2024
IN THE MATTER OF ZAO AND JIO (MINORS SUING
THROUGH THEIR FATHER AND NEXT FRIEND, DOI)

BETWEEN
ZAO AND JIO (MINORS SUING THROUGH THEIR FATHER AND NEXT
FRIEND DOI) ........................................................................................... APPELLANT

AND
MKC ....................................................................................................... RESPONDENT

Joint custody of children awarded to the deceased mother’s partner (not the biological father) and
the biological father of the children
The main issue was whether the court could grant custody of a child to the partner of the child’s deceased mother
where the biological father of the child also sought custody of the child. The High Court held that the paramount
consideration in any decisions concerning children must always be the best interests of the child. Article 53(e) of the
Constitution accorded all children the right to parental care and protection which included equal responsibility of
the mother and father whether married or not. The minors testified that they did not know their biological father
(appellant), their relationship was non-existent compared to the relationship they had with the deceased mother’s
partner (respondent). The court held that it would not be appropriate to uproot the children from their present
abode. The respondent, according to the court, merited to have physical custody of the minors in the circumstances
while the parties could have joint legal custody.
Reported by John Ribia
Children Law – custody – best interest of the child – value of child’s preference in a custody battle - whether
the wishes and preferences of minors should significantly influence custody decisions especially in cases involving
unfamiliarity with a biological parent - Constitution of Kenya, 2010, article 153(4); Children Act, 2022 (Cap
141) section 4, 23, and 24.
Children Law – custody – parental responsibility – where a deceased mother raised her children with her partner
– where the partner was not the biological father of the children – where the mother at the time of her death was

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considered to be legally married to the biological father – where the biological father sought custody – where the
application for custody was contested with the deceased mother’s partner and the children – value of a child’s
wishes in a custody battle - whether the wishes and preferences of minors should significantly influence custody
decisions, especially in cases involving unfamiliarity with a biological parent - whether the mother's partner, who
lived with the mother and raised the children prior to her death, could be deemed to have parental responsibility
for the children, despite the mother's marriage to their biological father remaining legally intact – Constitution
of Kenya, 2010, article 153(4); Children Act, 2022 (Cap 141) section 4, 23, and 24.
Brief facts
The appeal related to an issue over a dispute on custody of the minors between the appellant and the
respondent. The appellant was the biological father of the children and was married to their deceased mother.
Their relationship had however not blossomed, and the deceased mother was in a relationship with, and was
living and raising the children with the respondent. She never pursued a divorce before her death, meaning
that she remained married to the appellant at the time of her death.
Upon her death, the appellant led a suit for custody of the children before the Children Court in Bungoma
(Magistrates Court) on grounds that he was the biological father of the children and the husband to their
mother before her death. The respondent objected as he had raised the children along with the mother. The
children testied that they did not know who the appellant was as they had not seen him before. Their
preference was to be in the custody of the respondent.
The High Court held that both parties shall have joint custody and that both parties should meet the costs
of upkeep equally. Aggrieved the appellant led the instant appeal on grounds that the trial court erred in law
and fact in failing to nd the appellant was the only surviving biological parent of the minors. The respondent
contended that although he was not the biological parent, it was the best interests of the children to remain
in his custody.
Issues
i. Whether the court could grant custody of a child to a partner of a child’s deceased mother where the
biological father of the child also sought custody of the child.
ii. Whether the wishes and preferences of minors should signicantly inuence custody decisions,
especially in cases involving unfamiliarity with a biological parent.
iii. Whether the mother's partner, who lived with the mother and raised the children prior to her death,
could be deemed to have parental responsibility for the children, despite the mother's marriage to their
biological father remaining legally intact.
Held
1. Article 53(2) the Constitution and section 4(2) and 3(b) of the Children Act provided that the
paramount consideration in any decisions concerning children must always be the best interests of the
child.
2. The law under the Constitution and the Children Act succinctly sets out parental responsibilities of
each parent of a child. Section 23 of the Children Act gave the denition of parental responsibility
as all the duties, rights, powers, responsibilities and authority which by law a parent of a child had in
relation to the child and the child’s property in a manner consistent with the evolving capacities of the
child. Section 24 further apportioned parental responsibility by providing that where a child’s father
and mother were married to each other at the time of his birth, they shall have parental responsibility
for the child and neither the father nor the mother of the child shall have a superior right or claim
against the other in exercise of such parental responsibility.
3. Legal custody referred to rights and responsibilities that were conferred by a custody order. It was the
right to make decisions relating to the welfare of the child. The rights included in legal custody were
all the duties, rights, powers, responsibilities and authority which a parent had in relation to the child.

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 Those included the responsibility to maintain a child and provide them food, shelter , medical care,
education, clothing and duty to protect the child from neglect, discrimination and abuse.
4. Section 83 of the Children Act set out the following principles guiding the court in making a custody
order. The court must consider:
1. the conduct and wishes of the parent or guardian of the child.
2. The ascertainable wishes of the relatives of the child.
3. The ascertainable wishes of any foster parent, or any person who had actual custody of the child
and under whom the child has made his/her home in the last 3 years before the application
to the court.
4. The ascertainable wishes of the child.
5. Whether the child had suered any harm, or was likely to suer any harm if the order was not
made.
6. The customs of the community to which the child belonged.
7. The religious persuasions of the child.
8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion
order had been made in relation to the child concerned and whether or not those orders
remained in force.
9. The circumstances of any sibling of the child concerned; and of any other children of the home,
if any.
10. The best interest of the child.
5. The High Court had inherent powers and discretion to make orders that took into account the best
interest of the child. When it became necessary for the orders of the court to further the best interest
of the children in the matter and to protect them, the court did not shy away from taking that extra
mile to ensure that was achieved.
6. The minors made it clear that they did not know the appellant and that they had never met him. They
noted that they were seeing the appellant for the rst time in court and that the only father they knew
was the respondent. The respondent alluded to the fact that the appellant might be the father of both
minors but it was clear that he was the one whom they knew and who according to the minors, took
care of them, lived with them and they were comfortable with.
7. It was imperative for the court to caution itself on the i mportance of the best interests of the child and
the fact that the same overrode the issues to do with paternity of the minors. The court in reaching a
determination should consider the feelings and wishes of a child but must take into account the age
of the child and the degree of maturity as stipulated in section 4(4) of the Children Act that provided
that in any matters of procedure aecting a child, the child shall be accorded an opportunity to express
his opinion, and that opinion shall be taken into account as may be appropriate while having regard
to the child’s age and the degree of maturity.
8. At the time of their examination, the minors, ZA and JC, were 14 years and 9 years respectively and they
made it clear that they only wanted to live with their father, the respondent. ZA told the court that he
did not know the appellant and that the appellant had never visited her or sent her any pocket money
and that her home was in Nandi. JC on the other hand, identied the respondent as the father and
noted that he only wanted to live with him and did not want to go with the appellant. Such reasoning
from the children especially the eldest one indicated that she was mature enough to sway the court’s
opinion on custody and the child’s best interest absent of any exceptional circumstances. Likewise, for
the younger child aged nine years, he gave the same request.
9. The minors had begun to develop coping skills and were adapting to the loss of their mother. They
should be provided with a secure base which should include their close care givers being their father,
the respondent, teachers and classmates, in the situation of the 9-year-old. It was recommended that
that should not be tampered with for the next couple of years to prevent interference with the process

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 of emotionally digesting the trauma. The secure base would give the minors a secure footing to deepen
their relationship with the respondent who had been with them frequently and also provided a better
opportunity for development of a relationship unlike the appellant, whom they did not know. Their
relationship with the appellant was non-existent compared to the relationship they had with the
respondent. The best interest of the children was paramount and must be given due consideration. It
would not be appropriate to uproot the children from their present abode. The respondent merited
to have physical custody of the minors in the circumstances while the parties could have joint legal
custody.
10. Parental responsibility was premised on article 53(e) of the Constitution which accorded all children
the right to parental care and protection which included equal responsibility of the mother and father
whether married or not. At the time of the demise of E, she was married to the appellant and that the
appellant adduced evidence in form of a marriage certicate and birth certicates for the two minors.
That simply meant that the late E was not yet divorced from the appellant and that made it his parental
responsibility to care for the children.
11. Although the respondent did not avail evidence of his capability to take care of the minors, he was
very willing to do the same as was the norm even before the demise of their mother. The ability
to provide a better life to a child in a material sense did not give one priority over another since
the children’s psychological growth and happiness were not based on material provisions alone.
Nonetheless, nancial provision was equally an important consideration in a child’s upbringing.
12. Both parties testied to the fact that they were both capable of taking care of the minors. It had not
been demonstrated that the appellant had no ability to nancially support, maintain, and provide
for the minors. The extended family nearby would also help with the minors’ psychological growth
and happiness. However, what transpired from the evidence of the minors was that they viewed the
appellant as a stranger to them as he did not live with them. The minors had gotten accustomed to the
respondent whom they had known to be their father. It would be a travesty and an injustice to uproot
the minors from the place they had known to be their home and for the minors to be forced to go and
live with the appellant. The appellant must accept the fact that it would take time for the minors to be
psychologically prepared and become accustomed with the appellant in the fullness of time.
13. The appellant was their father but that alone should not be a ground to uproot the minors from their
circumstances. It was proper to have the minors remain with the respondent and that the appellant
and the respondent shall ensure the upkeep of the minors equally.
Appeal partly allowed.
Orders
i. The respondent shall have physical custody of the minors ZA and JC.
ii. The legal custody of the minors ZA and JC was awarded to both the appellant and the respondent.
Maintenance was to be provided by both parties as follows:
1. the respondent shall provide housing, food and other incidentals as may be necessary;
2. both parties shall share the payment of school fees and school related expenses equally;
3. the appellant shall provide medical cover.
iii. The appellant shall have supervised day access to the children within Nairobi from 10.00am, pick-up time,
to 4.00pm, drop-off time, two days a week Saturdays and Sundays during school terms and any day of the
week during holidays as may be agreed upon between the appellant and the respondent until the children
familiarized themselves with him. Any travel of the minors to the appellant’s home county had to be with
the notification and permission of the respondent.
iv. Any travel of the minors to the appellant’s home county was not permitted for now. The order can be
reviewed when the circumstances changed.
v. The appellant was also cautioned that he should not make surprise visits to pick the children but should
communicate his visit in advance to the respondent.

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vi. Each party was to bear their own costs.
Citations
Cases
1. Bhutt, Regine v Haroon Bhutt & another Civil Suit 8 of 2014; [2015] KEHC 6902 (KLR) — Explained
2. JWN v MN Children's Case 38 of 2017; [2019] KEHC 8527 (KLR) — Explained
3. LAC & another v MJC Civil Appeal E119 of 2021; [2022] KECA 68 (KLR) — Mentioned
United Kingdom
In re G (children) (FC) [2006] UKHL 43 — Mentioned
Statutes
1. African Christian Marriage and Divorce Act (Repealed) (cap 151) In general — Cited
2. Children Act (cap 141) sections 4, 23, 24 — Interpreted
3. Constitution of Kenya article 53 - Interpreted
Advocates
Sabwan for Bw’Onchiri for Appellant

JUDGMENT

1. This appeal relates to an issue over a dispute on custody of the minors herein between the appellant
and the respondent. It all started in the Children’s Court at Bungoma and ended up before this court
on appeal. The gist of the appeal herein revolves around the issue of shared custody of the minors as
ordered by the trial court and the subject of these proceedings made to the appellant and respondent.

2. The orders that were extracted from the impugned lower court’s judgment read:

i. That both parties shall have joint custody of the two issues. The arrangement to be made under
the supervision of the Children Department for the issues to spend their holidays with the
parties for equal duration.

ii. That both parties meet the upkeep of the issues equally.

iii. That each party meets their own costs.

iv. That orders made shall be in line with section 4 of the Children Act which shall be in best
interest of children.

3. Aggrieved by the trial court’s judgement, the appellant led an appeal vide memorandum of appeal
dated November 8, 2021 wherein he listed grounds of appeal as follows:

i. That the Hon Magistrate erred in law and fact when he failed to nd that the appellant, DOI
was the only surviving biological parent of the minors herein.

ii. That the Hon Magistrate rightly held on one hand that the respondent failed to prove his
income but erred on the other hand when he awarded custody of the minors to the respondent
without regard as to the best interest of the minors hence occasioning a miscarriage of justice.

iii. That the Hon Magistrate erred in law and fact when he failed to take into consideration the
submission and case laws cited by the appellants hence occasioning miscarriage of justice.

iv. That the judgement by the Hon Magistrate is contradictory when he held that the respondent
failed to prove his means of income but further held that both the appellant and the respondent
meet the upkeep of the minors equally hence occasioning a miscarriage of justice.

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 v. That the Hon Magistrate erred in both law and fact when he failed to address the issue of the
minors’ education hence occasioning a miscarriage of justice.

vi. That the Hon Magistrate failed to nd the respondent had interfered with 2nd minor, JMO, by
changing his name from JMO to JK as per OB NO xx/xx/x/2021 at Amagoro Police Station
hence not a proper person to have the custody of the minors.

vii. Thatthe judgement by the Hon Magistrate is contrary to the spirit and letter of article 53 of
the Constitution 2010 hence occasioning a miscarriage of justice.

viii. That the judgement by the Hon Magistrate is incapable of being implemented taking into
account the peculiar circumstances of the case hence the Hon Magistrate erred in law and fact
when he held that both parties to meet the upkeep of the issues equally.

ix. That the Hon Magistrate erred in law and fact when he failed to nd that the respondent was
a stranger and an intruder in the minors’ lives and hence incapable of being awarded custody
of the minors.

x. That the Hon Magistrate erred in law and fact when he failed to nd that the respondent’s
primary interest in the minors’ lives was the pension and other gratuity left behind by the
minors’ late mother, the late JEO formerly of MP Shah Hospital and thus incapable of being
awarded custody of the minors hence occasioning a miscarriage of justice.

xi. That the judgement is poorly reasoned, incoherent and an abuse to the basic rights of the
minors.

4. The appellant prayed that the appeal be allowed and that the judgement of the lower court be set aside
and an order bestowing the full custody of the minors to him be issued by this court.

5. Vide court directions issued on September 25, 2023, the appeal was canvassed by way of written
submissions. It is only the appellant who led and exchanged his submissions.

6. The appellant vide submission dated September 30, 2023, submitted that he was married to the late
JEO under the African Christian Marriage and Divorce Act cap 151 and that he is the biological father
of the minors herein.
He submitted that the trial Magistrate erred by granting both the appellant and the respondent shared
custody of the two minors. He urged this court to set aside the same and substitute the orders with an
order allowing the appellant’s claim as prayed. He relied on the cases of LAC & another v MJC (Civil
Appeal E119 of 2021) (2022) KECA 68 (KLR) and Re G (2006) 545.

7. This is a rst appeal. The duty of a rst appellate court was succinctly stated by Wendoh J in JWN v
MN [2019] eKLR in the following words:

" ‘’It is settled law that the duty of the rst appellate court is to re-evaluate the evidence
tendered in the subordinate court, both on points of law and facts and come up with its
ndings and conclusions.’’

8. This is the standard of review upon which it is incumbent upon the court to utilize in determining
this appeal.

9. It is imperative to begin with the facts. At the hearing, the trial court interviewed both the minors
herein. According to ZA, she was fourteen years of age and was set to join form one. She told the court

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 that her mother was the late JEO and her father is the respondent herein and that she did not know
the appellant herein.

10. On cross examination by counsel for the appellant, she told the court that her father’s name is DO, the
appellant, as per her birth certicate but that she did not know the appellant herein. She testied that
she does not have a birth certicate indicating the respondent is her father. She testied that JC is her
brother and that both of them were born at MP Shah hospital. She told the court that to her, a father
is a person who has been there for you and that she was not ready to take any DNA test.

11. On cross-examination by counsel for the respondent, she told the court that she has never lived with
the appellant and that the appellant has never visited her and that she has never seen him before. She
told the court that she is comfortable staying with the respondent as she knows him as her father.

12. JC, testied that he was nine years old and that he is in grade three. According to him, his father is the
Respondent herein and that he wished to live with him and not somebody else.

13. On cross examination by counsel for the appellant, he told the court that he did not know the appellant
and that he did not wish to go with the appellant.

14. On cross examination by counsel for the respondent, he told the court that the appellant has never
come to see him nor has he provided for him and that he only saw him for the rst time in court. He
told the court that he is used to the respondent

15. The court proceeded to hear the evidence from the parties. the appellant as PW1 testied and called
two witnesses. In his testimony, he adopted his statement dated June 30, 2021 as his evidence in chief.
He also relied on his list of documents dated June 30, 2021 which he produced in court as plainti’s
exhibit 1-17. He told the court that he was married to the late JEO on August 13, 2005 at Amagoro
church and that they resided at Kangemi in Nairobi from 2004 to 2007 then moved to Uthiru where
they lived from 2007 to 2009. He testied that in 2010 he moved to Kocholia, Teso North within Busia
County but still lived with the late JEO in Amagoro but in 2018 he separated from the late JEO and
that the minors resided with her. According to him, he used to visit the children and provide for them
by paying for their school fees and even took medical covers for them, and that he also has an education
insurance for the minors that was maturing in August 2021. He told the court that he wanted his
children to be with him as he was apprehensive that the ZA might be sexually assaulted.

16. On cross-examination, he told the court that the late JEO was living in Nairobi and that they stopped
living together since 2018. According to him, the late JEO was living with somebody else and that it
did not bother him as he knew his children were with their mother. He testied that he used to meet
with the children but could not take the children home with him. He used to pay school fees and that
he had taken an NHIF medical cover that included each child. He also mentioned that he took out
an education insurance cover with a maturity date for August 2021. He also testied that there was an
alleged incident of ZA being given alcohol.

17. On re-examination, he told the court that he found out about the alcohol incident involving ZA from
the grandparents and claried that the education insurance was maturing in the month of August
2021.

18. PW2 was ROO who adopted his statement dated June 30, 2021 as his evidence in chief. He told
the court that PW1 is his son-in-law as he had married the late JEO through a Christian marriage.
According to him, they were blessed with two children, ZA and JC, and that the respondent is not the
father of the children. He testied that a DNA test can be conducted to ascertain the paternity of the
children. He told the court that the appellant should take his children.

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19. On cross examination, he stated that he is aware that the late JEO separated from the appellant.
According to him, he saw the respondent before at his home and that the respondent had come to him
for negotiation. He attended the burial of his late daughter and that he never stopped the burial. He
further testied that he did not make an application for the exhumation of the body of his deceased
daughter.

20. At that juncture the appellant closed his case.

21. During the defence hearing, the respondent testied as DW1. He adopted his statement dated August
5, 2021 as his evidence in chief. He told the court that he is a businessman. He also relied on his list
of documents dated August 5, 2021 which he produced in court as defence exhibit 1-6. According
to him, he lived with the late JEO from the year 2010 but knew her from the year 2008. He told the
court that the late JEO had children and that she came to him with ZA but that he is not certain of
the paternity of JC. He told the court that he heard that the appellant would pass by when he was not
around and that he lived with the late JEO till her death.

22. On cross examination, he stated that he was before court for purposes of the children, their happiness
and future. According to him, he was sure who was the father of JC and that the appellant might be
the biological father of JC. He stated that he was not the one who processed the birth certicate of JC
as that was done by the late JEO and that the same indicated him as the father to JC. He stated that he
has a source of income but did not avail any evidence to that eect. He added that he had married the
late Everlyne as he had paid her dowry and that he had buried her.

23. On re-examination, he stated that he took the children to school and conrmed that JC has two birth
certicates. He testied that he is still living with the children.

24. DW2 was NC who adopted his statement dated August 9, 2021 as his evidence in chief. He testied
that he is a business man and that he knew of the late JEO in the year 2018 when she had ZA who was
only three years old. He testied that the late JEO later had another child, JC and that the respondent
has been living with the late JEO until her death.

25. On cross examination, he stated that he is the younger brother to the respondent and that he did not
know what the respondent was doing for a living. He stated that he resides in the USA and that they
visit him often. He added that he did not know who the biological father of JC is.

26. At the close of the defence hearing, the matter was set dozen for judgement. The trial court held that:

“ ………. From the evidence on record, the issues chose to live with the defendant as they
were familiar with him. it is also likely that these children were inuenced as a result of this
familiarity with the defendant. I am however concerned with the fact that the defendant
did not support his means through the production of a payslip or a bank account. It is the
responsibility of a Children’s Court to make ndings in the best interest of the children.
Section 4 of the Children Act and article 53(2) of the Constitution.
In the view of this I will an order which order shall be dependent on certain future events.
It is ordered that both parties shall have custody of the two issues. That arrangement to
be made under the supervision of the children’s department for the issues to spend their
holidays with the parties for equal duration. That both parties to meet the upkeep of the
issues equally.

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 That the said arrangements shall be in place until the minors reach the age of 18 years when
they shall be at liberty to make choices. That any disobedience of the above order shall be
deemed to be contempt of court…..”

27. In my view, the court must bear in mind two major issues in deciding the custody question namely:

i. First, our Constitution and statutory law are clear in making any decisions concerning children,
the paramount consideration must always be the best interests of the child.
The Constitution of Kenya, 2010 in article 53(2) provides as follows:

A child’s best interests are of paramount importance in every matter concerning the
child.

Section 4(2) and 3(b) of the Children’s Act echoes the Constitutional imperative:

(2) In all actions concerning children, whether undertaken by Public or Private Welfare
Institution, courts of law, Administrative Authorities or Legislative bodies, the best
interest of the child shall be the 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 rst and paramount consideration to the extent that this is
consistent with adopting a course of action calculated to –

a. Safeguarding and promoting the rights and welfare of the child;

b. and promote the welfare of the child.

ii. The second prime principle taken into consideration in deciding custody questions is honed
out of case law: it is that there is a prima facie rule that absent exceptional circumstances, the
custody of children of tender years should be awarded to the mother.

28. There are numerous precedents on the impact of the best interest of the child. In the case of Bhutt v
Bhutt HCCC No 8 of 2014, the court stated that:

“ The best interests of a child are superior to rights and wishes of parents, and they incorporate
not just the physical comfort of the child but the welfare of the child in its widest sense.”

29. The law under the Constitution and the Children Act succinctly sets out parental responsibilities of
each parent of a child. Section 23 of the Children Act gives the denition of parental responsibility as
follows; -

(1) In this Act, “parental responsibility” means all the duties, rights, powers, responsibilities and
authority which by law a parent of a child has in relation to the child and the child’s property
in a manner consistent with the evolving capacities of the child.

(2) The duties referred to in subsection (1) include in particular—

(a) the duty to maintain the child and in particular to provide him with—

(i) adequate diet;

(ii) shelter;

(iii) clothing;

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 (iv) medical care including immunization; and

(v) education and guidance;

30. Section 24 goes further to apportion that responsibility as follows;

“ (1) Where a child’s father and mother were married to each other at the time of
his birth, they shall have parental responsibility for the child and neither the
father nor the mother of the child shall have a superior right or claim against
the other in exercise of such parental responsibility.”

31. Regarding legal custody, it refers to rights and responsibilities that are conferred on by a custody order.
It is the right to make decisions relating to the welfare of the child. The rights included in legal custody
are all the duties, rights, powers, responsibilities and authority which a parent has in relation to the
child. These include the responsibility to maintain a child and provide them food, shelter, medical care,
education, clothing and duty to protect the child from neglect, discrimination and abuse.

32. Section 83 of the Children’s Act sets out the following principles guiding the court in making a custody
order. The court must consider the following:

1. The conduct and wishes of the parent or guardian of the child

2. The ascertainable wishes of the relatives of the child

3. The ascertainable wishes of any foster parent, or any person who has had actual custody of
the child and under whom the child has made his/her home in the last 3 years before the
application to the court.

4. The ascertainable wishes of the child.

5. Whether the child has suered any harm, or is likely to suer any harm if the order is not made,

6. The customs of the community to which the child belongs.

7. The religious persuasions of the child

8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion

9. The circumstances of any sibling of the child concerned; and of any other children of the home,
if any.

10. The best interest of the child.

33. I wish to make it clear that this court has inherent powers and discretion to make orders that take into
account the best interest of the child. When it becomes necessary for the orders of this court to further
the best interest of the children in this matter and to protect them, this court will not shy away from
taking that extra mile to ensure that this is achieved.

34. From my reading of the Judgment of the trial court, delivered on October 12, 2021, it is clear to me that
there is a dispute regarding the award of shared custody to each party in this appeal and the maintainace
of the issues by the Respondent despite him not proving his means of income.

35. As duly held by the trial court, the minors during their interviews made it clear that they did not know
the appellant herein and that they have never met him. They noted that they were seeing the appellant

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 for the rst time in court and that the only father they knew was the respondent. The respondent
alluded to the fact that the appellant might be the father of both minors but it is clear that he was the
one whom they knew and who according to the minors, took care of them, lived with them and were
comfortable with. It is imperative for this court to caution itself on the importance of the best interests
of the child and the fact that the same overrides the issues to do with paternity of the minors.The
court in reaching a determination should consider the feelings and wishes of a child but must take into
account the age of the child and the degree of maturity as stipulated in section 4(4) of the Children
Act as follows:

(4) In any matters of procedure aecting a child, the child shall be accorded an opportunity to
express his opinion, and that opinion shall be taken into account as may be appropriate taking
into account the child’s age and the degree of maturity.”

36. At the time of their examination, the minors, ZA and JC, were 14 years and 9 years respectively and
that they made it clear that they only wanted to live with their father, the respondent herein. ZA
told the court that he did not know the appellant and that the appellant has never visited her or
sent her any pocket money and that her home was in Nandi. JC on the other hand, identied the
respondent as the father and noted that he only wanted to live with him and did not want to go with
the appellant. Such reasoning from the children especially the eldest one indicates that she is mature
enough to sway the court’s opinion on custody and the child’s best interest absent of any exceptional
circumstances. Likewise, for the younger child aged nine years, he gave the same request. It is my view
that the minors had begun to develop coping skills and were adapting to the loss of their mother.
They should be provided with a secure base which should include their close care givers being their
father, the respondent herein, teachers and classmates, in the situation of the 9-year-old. I recommend
that this should not be tampered with for the next couple of years to prevent interference with the
process of emotionally digesting the trauma. The secure base would give the minors a secure footing to
deepen their relationship with the Respondent who had been with them frequently and also provided
better opportunity for development of a relationship unlike the appellant, whom they did not know.
I also note that their relationship with the appellant was non-existent compared to the relationship
they had with the respondent. The best interest of the children is paramount and must be given due
consideration. It will not be appropriate to uproot the children from their present abode. Iam satised
that the respondent merits to have physical custody of the minors in the circumstances while the parties
can have joint legal custody.

37. On maintenance of the two minors, parental responsibility is premised on article 53(e) of the
Constitution of Kenya, which accords all children the right to parental care and protection which
includes equal responsibility of the mother and father whether married or not. It is clear that at the
time of the demise of E, she was still married to the appellant herein and that the appellant adduced
evidence in form of a marriage certicate and birth certicates for the two minors. This simply means
that the late E was not yet divorced from the appellant and that makes it his parental responsibility to
care for the children. The respondent, although he did not avail evidence of his capability to take care
of the minors, he is very much willing to do the same as was the norm even before the demise of their
mother. I am alive to the fact that the ability to provide a better life to a child in material sense does not
give one priority over another since the children’s psychological growth and happiness are not based
on material provisions alone. Nonetheless, nancial provision is equally an important consideration
in a child’s upbringing. It is clear that both the parties testied to the fact that they are both capable of
taking care of the minors. It has therefore not been demonstrated that the appellant has no ability to
nancially support, maintain, and provide for the minors and it is my considered view that the extended
family nearby would also help with the minors’ psychological growth and happiness. However, what
transpired from the evidence of the minors is that they view the appellant as a stranger to them as he

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 did not live with them. The minors had gotten accustomed to the respondent whom they have known
to be their father. It would be a travesty and an injustice to uproot the minors from the place they have
known to be their home and be forced to go and live with the appellant. The appellant must accept
the fact that it will take time for the minors to be psychologically prepared and become accustomed
with the appellant in the fulness of time. It is not in dispute that the appellant is their father but that
alone should not be a ground to- uproot the minors from their present circumstances. It is proper to
have the minors remain with the respondent and that the appellant and the respondent shall ensure
the upkeep of the minors equally.

38. In view of the foregoing observations, it is my nding that the appellant’s appeal partially succeeds to
the extent that the orders on shared custody be set aside as the circumstances do not allow for the same.
Consequently, the trial court’s judgement is hereby set aside and substituted with the following orders:

i. The respondent shall have physical custody of the minors ZA and JC.

ii. The legal custody of the minors ZA and JC is awarded to both the appellant and the
respondent. Maintenance is to be provided by both parties as follows:

(a) The respondent shall provide housing, food and other incidentals as may be necessary;

(b) both parties shall share the payment of school fees and school related expenses equally;

(c) the appellant shall provide medical cover.

iii. The appellant shall have supervised day access to the children within Nairobi from 10.00am,
pick-up time, to 4.00pm, drop-o time, two days a week Saturdays and Sundays during school
terms and any day of the week during holidays as may be agreed upon between the appellant
and the respondent until the children are familiarized with him. Any travel of the minors to the
appellant’s home County has to be with the notication and permission of the respondent.

iv. Any travel of the minors to the appellant’s home County is not permitted for now. This order
can be reviewed when the circumstances change.

v. The appellant is also cautioned that he should not make surprise visits to pick the children but
should communicate his visit in advance to the respondent.

vi. Each party to bear their own costs

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