Why Briton lost custody of child to his estranged Kenyan girlfriend
The court found that the Briton was also qualified for the custody of the minor but ruled that his absence from Kenya and residence status did not work in his favour.
A British citizen has lost custody of a child to his estranged Kenyan girlfriend after a two-year court battle.
The Family Division of the Mombasa High Court handed the physical custody of the minor to its mother despite finding that she was not fit to live with the child.
“I have with a heavy heart given actual custody of the child to the mother on condition that she does not frustrate the man’s attempt to access the minor,” said Justice John Onyiego.
The judge noted that due to the child’s tender age, it was better for it to stay with its mother.
The court found that the Briton was also qualified for the custody of the minor but ruled that his absence from Kenya and residence status did not work in his favour.
The judge said the Briton was on a tourist visa and visited Kenya about once every three months, travelling frequently in the Middle East and is mostly out of the country.
“With his tight schedule and nature of employment and residence status, he has no sufficient time for the child, implying that the minor would be left in the hands of third parties who are not available,” he said.
The judge added: “In my view, proper control of the baby and monitoring would be lacking should actual custody of the minor be given to the father who is always absent.”
The court described the Briton as a responsible and caring man who has bought properties worth more than Sh10 million for the minor, registered them in its name and provided for its needs.
The court also said the minor’s performance in school and its health improved when it was in his custody.
“He is the best person to have the actual custody of the minor. However, the only limitation or incapacitation is his residence status as stated earlier,” the judge said.
The court also ruled that the man could still support the child while it is in the custody of its mother.
But he gave the woman physical custody of the child, explaining that there was no better alternative person to care for the minor after finding that both its parents were not suitable.
The court said the woman behaves inappropriately and often disobeys court orders regarding custody of the child.
“She has no respect for court orders. To her, no court order is good unless it is in her favour. She is an irresponsible mother, unkind to the child,” the judge said.
The court relied on a report produced in court by the children’s officer indicating that the minor’s academic performance dropped whenever it was with its mother as she withdrew the child from school due to her unsettled nature.
But left with no option, the judge gave the woman physical custody but with a warning that the order would be revoked if she disobeyed court directives.
“The court will revoke the orders and give appropriate ones. In view of the above, the children’s court order giving actual custody to the father is substituted with an order that actual custody of the minor is awarded to the mother with unlimited right of access by the man,” ruled the judge.
The Briton, who failed to get the judge to recuse himself from the case, was aggrieved by the court’s finding and vowed to appeal against it.
“I now ask you to recuse yourself on the ground that I believe justice will not be served and that you are biased. Having analysed your decision, it appears you are acting not in the best interest of the child. Every single decision has favoured the mother,” he lamented.
Through his lawyer, Lawrence Obonyo, he said he would appeal against the decision.
The Briton and the Kenyan woman have battled in court for custody of the child for over two years.
While the man wants to register the child as a British citizen and give him an EU Irish passport, the woman thinks he is planning to run away with the child.
