Githunguri v Githunguri [1979] KECA 2 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that young children should normally stay with their mother unless there are exceptional reasons, and gave a mother custody of her two daughters.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal should interfere with the trial judge's exercise of discretion in awarding custody to the father
- 2.Whether the additional facts arising after the judgment below (the concluded divorce on the ground of adultery) should be taken into account by the appellate court
- 3.Whether, on the welfare principle, the custody of the two infant daughters should be awarded to the mother rather than the father
- 4.Whether the appellant's conduct and drinking habits disentitled her to custody
Key legal issues
#The prima facie rule in favour of the mother for custody of young children
The trial judge misdirected himself in rejecting a rule favouring the mother; other things being equal, children of tender age should be with their mother, and a court giving custody of a young child to the father must have sufficient reasons to exclude that prima facie rule.
Law JA held that while the welfare of the children is the paramount consideration, there is a generally accepted rule that in the absence of exceptional circumstances the custody of young children is given to the mother. The trial judge gave custody to the father merely on a comparison of the parents without finding the mother unfit, so there were no exceptional circumstances to displace the rule.
Appellate interference with the exercise of discretion
Although an appellate court will not disturb a discretionary decision unless it was based on a wrong principle or was clearly wrong, the trial judge's decision here was wrong and could not be supported.
Law JA accepted the Mbogo v Shah principle as rightly submitted by counsel for the father, but concluded, with reluctance given the thoroughness of the judgment below, that the judge had misdirected himself on the maternal rule and that the decision was clearly wrong, warranting appellate intervention.
Treatment of additional facts arising after the decision below
The court declined to remit the matter and instead took the additional facts (the concluded divorce on the ground of adultery) into account itself, since remitting would cause further deprivation of the mother's custody.
Wicks CJ identified two courses: remittal with a direction to reconsider, or deciding on the additional facts. He rejected the middle course of importing the new facts as if they were before the trial judge, because that would criticise the lower court on facts never before it; and given the appellant's prolonged deprivation of custody since August 1977, remittal was undesirable.
Invalidity of the customary marriage and its bearing on custody
The respondent's purported customary marriage to Elizabeth Karungari was invalid under section 37 of the Marriage Act (Cap 150), and the effect of the order below was to entrust the children's day-to-day care to a person whose status the court had not assessed.
Miller JA observed that the trial judge never saw Elizabeth Karungari and partly relied on the respondent's recommendation of her; the order placed the infants in the care of the 'arch rival' of their natural mother, a woman in potentially bigamous standing, which was inimical to the welfare of the infants.
Legal principles established
#- When dealing with the paramount consideration of the welfare of young female children, there is a rule that the mother is normally the person who should have custody, in the absence of exceptional circumstances.
- An appellate court will not interfere with a judge's exercise of discretion unless it was based on a wrong principle or was clearly a wrong decision.
- An appellate court in custody matters may, where new facts materially alter the position, take those additional facts into account and decide the matter itself rather than remit it, where remitting would cause further deprivation of custody.
- In deciding questions of custody under the Guardianship of Infants Act, the court must regard the welfare of the children as the first and paramount consideration.
Court orders
#- 1.Appeal allowed
- 2.Order of the High Court awarding custody to the respondent set aside
- 3.Legal custody of the two infant daughters granted to their mother, the appellant
- 4.Costs of the proceedings under the originating summons in the court below and the costs of the appeal awarded to the appellant
- 5.Liberty to apply to the High Court under the originating summons, or to take fresh proceedings under the Matrimonial Causes Act and Rules, in the absence of agreement on maintenance and access
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Allowed the appeal on the basis of additional facts arising after the decision below: the divorce was concluded on the ground of the respondent's adultery with Elizabeth, leaving the appellant an innocent party; custody of the two infant daughters was awarded to the mother.
The appellant is now before us as an innocent party, the mother of two infant daughters who are in the custody of the respondent who is living with the woman named in a petition of divorce which succeeded on that ground.p. 3
Wrote the judgment
Held that the trial judge misdirected himself in rejecting a 'rule' in favour of the mother; in the absence of exceptional circumstances the custody of very young female children should be granted to their mother. He relied on Re S (an infant), Re L (infants), Wambwa v Okumu and Karanu v Karanu, and found no exceptional circumstances to displace the prima facie rule.
Basically, these reasons are that the custody of very young female children should be granted to their mother, in the absence of exceptional circumstances which do not in my opinion exist in this case.p. 3
Wrote the judgment
Allowed the appeal on welfare grounds: the High Court's order had effectively placed the infants into the care of the respondent's purported customary 'wife', whose marriage was invalid under section 37 of the Marriage Act, a person the trial court had not seen or assessed. He considered the welfare of the infants favoured the natural mother.
Is it not a fact that the High Court's order has placed the two infants into the motherly care of the arch rival of their natural mother?p. 7
- On appeal from
- High Court
- Originating summons filed September 29, 1977 (judgment delivered November 18, 1977)
- Jurisdiction invoked
- Appeal from the High Court under the Guardianship of Infants Act (Cap 144); appellate jurisdiction of the Court of Appeal over High Court custody decisions
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would allow the appeal, set aside the order the subject of the appeal, and make an order giving the legal custody of the two infant daughters to their mother, the appellant, with costs of the proceedings under the originating summons in the court below and the costs of this appeal.
In the absence of agreement, I would order that the parties should have liberty to apply to the High Court under the originating summons, or take fresh proceedings under the Matrimonial Causes Act and Rules, as they may be advised. As the other members of the court agree, it is so ordered.
When dealing with the paramount consideration of welfare, especially where young female children are concerned, there is a rule that the mother is normally the person who should have custody.
He submitted, quite rightly, that an appellate court will not interfere with a judge's exercise of discretion unless it was based on a wrong principle or was clearly a wrong decision.
it was the duty of the court to deal with things as they are now, not as they were, or as they might have been
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githunguri v Githunguri [1979] KECA 2 (KLR)", Case Analysis (1979). Court of Appeal, Nairobi, custody appeal against Hancox J judgment of November 18, 1977. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/2/eng@1979-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.