A family court in Mombasa has granted a man physical custody of his child after a two-year legal battle with his mother-in-law over who should live with the child.
Justice John Onyiego ruled in favour of the man despite protests from the child’s maternal grandmother, who wanted custody, claiming that the man and her deceased daughter were not married.
The judge said that the question of marriage was not before the court.
“The allegation that the deceased [woman] and the man were not married under Kamba customary law hence the father cannot claim custody is not tenable,” Justice Onyiego said.
“We are not dealing with the issue of marriage in this case in which the man claimed that he was married to the deceased customarily.”
He noted that under Section 6 (1) of the Children Act, a child has the right to live with and to be cared for by his or her parents.
The court also observed that it appeared that the child’s grandmother was more interested in accessing the benefits of the minor’s mother using guardianship proceedings.
“I do not find any specific reason to deny the father custody to his baby,” the judge said.
The dispute began in 2020 following the demise of the child’s mother. Its grandmother moved to the Tononoka Children’s Court and asked for a certificate appointing her guardian.
She argued that the child had been under her care since its mother died and therefore she was the only person fit to be granted guardianship.
“Even before its mother’s death, I was the guardian hence the desire to look after the child and its estate,” she said.
The woman told the court that her daughter was just a girlfriend of the man and that the child was an offspring of their cohabitation.
She added that her daughter and the minor went to live with her at her house when she fell sick.
“When the child’s mother died, it remained in my custody to date. As the next of kin to my late daughter, I am entitled to pursue her benefits hence the need for a guardianship certificate,” she said.
The woman also told the court that the man had not paid any dowry and thus was not legally married to her daughter.
Her statements were echoed by the child’s grandfather, who said that his late daughter had cohabited with the man but their relationship was acrimonious, resulting in their separation.
The child’s father responded that they had been married customarily and that the child had been withdrawn from his custody after its mother died.
He also called his friend as a witness, who confirmed that he was married to the deceased woman and that he was the godfather of the child when it was baptized.
The man lamented that the child’s grandmother, who he claimed was the cause of his separation from the deceased woman, had unjustly denied him access to the child.
“The guardianship of the minor was filed without my knowledge hence the proceedings were made in bad faith,” he said.
After hearing both parties, the children’s court granted custody to the man with unlimited access for the grandmother.
But the grandmother appealed against the decision, saying the children’s court had not considered the best interests and wishes of the minor.
She also said the court failed to consider the customs of the community to which the child belongs as required by the law.
“The magistrate negated the fact that the minor has never lived with its father and the baby does not know him [though he is] the biological father,” she said, adding that a children’s officer report favouring her was ignored.
She said the court failed to consider Kamba traditions that says a father “who had not paid dowry to the deceased wife had no right of custody over the child or children arising out of such relationship”.
But the man opposed the appeal, saying he had the right to take custody of his child.
“Its grandmother is only interested in the deceased’s benefits and not the baby,” he submitted.
The judge sided with the man in his ruling, noting that in determining guardianship, the issue of marriage or processing terminal benefits is not a key consideration.
“Unless there exist exceptional circumstances to warrant exclusion, the man being the surviving parent is deemed and indeed is entitled to assume the role of a guardian to the minor,” Justice Onyiego said.
The judge said the appellant had denied the father access to his child and that did not mean that he had neglected it.