The Case of N M M vs J O W (2016) eKLR

The High Court in this case was asked on appeal to find that the Trial Magistrate was wrong to have granted custody of a girl child of 6 years to the father.

The father and mother in this case had separated. They had 2 children, a girl of 6 years and a boy of 2 years. By the time they were separating, the father was left in Butere in Western Kenya with the 6 year old girl. The mother went away to Embu in Eastern Kenya with the 2 year old boy. Later the mother came and “stole” the 6 year old girl. This made the father to file for a case in the Children’s Court asking for his 6 year old daughter to be returned to his home.

After the hearing, the Magistrate in the Children’s Court, being guided by a report of the Children’s Officer ordered that the best interests of the two children will be served by not disturbing them from where they were currently living. This meant that the 2 year old boy should continue to live with the mother while the 6 year old girl would continue to live with the father. The mother was not satisfied with the decision and filed this appeal in the High Court.


The High Court after considering the evidence decided that the best interests of a child of tender years should be to live with the mother except in cases where it can be proved that the mother is unfit. The custody of the 6 year old girl was therefore given to the mother.

The court also added that focus on the Child’s best interest means that all custody and visitation decisions are made with the aim of encouraging the child’s happiness, security, mental health and emotional development into young adulthood.

Factors that would disqualify the mother from having custody of children of tender years:

  • Disgraceful conduct
  • Immoral behavior
  • Drunken habit
  • Bad company

Factors that the courts consider in deciding what the best interest of the child is in a custody case (section 83 (1) of the Children Act):

  • Child’s emotions, physical and educational needs
  • Child’s age, sex, background and characteristics
  • Special needs and attention that require a particular parent’s special attention for example a girl child about to enter adolescence and puberty will need the mother.
  • Wishes of the child (if old enough to express a reasonable preference)
  • Mental and physical health of the parents
  • Religion and/or cultural considerations
  • Need for continuation of stable home environment
  • Support and opportunity for interaction with members of extended family of either parent
  • Adjustment to school and community
  • Age and sex of the child
  • Parental use of excess discipline or emotional abuse
  • Evidence of parent abusing drugs, alcohol or sex abuse

Read the whole case here.

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