The High Court in Mombasa has ruled that in determining the guardianship of a child, marriage or the processing of a deceased person's terminal benefits is not a key consideration.
Justice John Onyiego also said that a paramount consideration is the best interest of the child pursuant to Article 53 (2) of the Constitution.
Dismissing an appeal by a woman referred to as SNM, who sought guardianship of her deceased daughter’s child, Justice Onyiego noted that under Section 103 (2) of the Children Act, upon the death of a child’s mother, the surviving father is expected to assume the role of guardianship.
“Unless there exist exceptional circumstances to warrant exclusion, the father of the minor, being the surviving parent, is deemed and indeed is entitled to assume the role of a guardian to the minor,” Justice Onyiego said.
SNM claimed that PNN, the father of the child, was not married to her daughter and that she wants a guardianship certificate to enable her to process the deceased woman’s benefits.
Justice Onyiego also said that SNM’s allegations that the child was neglected and mistreated were not demonstrated by any tangible evidence.
“In the absence of any exceptional circumstances to warrant denial of the father to guardianship, the court will as a matter of priority consider the biological father first,” he said.
The court noted that allegations that the deceased woman and PNN were not married under Kamba customary law and thus could not claim custody were not tenable.
The issue in the case, he said, was not marriage, though PNN had claimed he was married to the deceased woman under Kamba customs.
He also noted that PNN’s financial ability to look after the child had not been challenged and that he is a businessman and a man of means.
“It would appear that the appellant is more interested in accessing benefits of the minor’s mother using guardianship proceedings,” said Justice Onyiego.
He ruled that in the absence of any consent from PNN, a will or a deed from the deceased woman for SNM to assume guardianship, he did not find any specific reason to deny the father custody of the child.
The court noted that although the children officer’s report found that the appellant had bonded with the child, the position was not fixed.
“The magistrate adequately and properly addressed all salient issues worth consideration and arrived at a proper conclusion,” said Justice Onyiego.
The issue of the deceased woman’s benefits “is a matter for the probate court and should not be a ground to gain custody or guardianship of the baby”.
SNM had appealed against a decision of the children’s court granting custody of the child to PNN, with unlimited access to her.
She argued that the trial court erred in granting custody to PNN without considering the principles applicable under sections 76 and 83 of the Children Act.
She argued that the court did not consider the ascertainable wishes of the child and hers and that the minor had been in her custody since the mother died.
She also argued that the lower court had ignored the children officer’s report recommending that custody be given to her.
PNN, who had opposed the appeal, told the court that as the child’s biological father, he had the right to get custody and that SNM was only interested in her late daughter’s benefits and not the child.
He contended that he was capable of taking care of his child without SNM’s support and that he was not interested in the benefits of the deceased woman.
Justice Onyiego ordered the court file to be returned to the trial court for implementation of its orders.