J.O v S.A.O [2016] KECA 55 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that young children stay with their mother unless a father proves exceptional circumstances.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who, between the divorced father and mother, is entitled to custody of the two young girls
- 2.Whether the High Court judge erred in declining to reverse the custody order in light of the children's alleged wishes to attend a different school
- 3.Whether the appellant demonstrated exceptional circumstances warranting variation of the consent custody order
- 4.Whether this Court should interfere with the exercise of discretion by the High Court judge
Key legal issues
#Paramountcy of the child's best interests in custody matters
The best interests of the child, anchored in Article 53(2) of the Constitution and section 4 of the Children Act, are paramount in every matter concerning a child, including custody disputes between divorced parents.
The court anchored its analysis on Article 53(2) of the Constitution and section 4 of the Children Act, 2001, which together establish that the child's best interests are paramount. This constitutional and statutory standard frames all custody determinations, including second appeals, and takes precedence over prior consent arrangements between the parties.
Maternal custody for children of tender age absent exceptional circumstances
Custody of children of tender age should, except where exceptional circumstances exist, be awarded to the mother, as mothers are best suited to exercise care and control.
The court invoked a line of its own and High Court decisions (Sospeter Ojaamong v Lynnette Amondi Otieno, Karanu v Karanu, Githunguri v Githunguri) establishing that mothers are best suited to care for children of tender age unless exceptional circumstances exist, such as the mother being unsettled, remarried, living in deplorable quarters, or of disgraceful or immoral conduct. The allegations made against the respondent did not displace this presumption.
Weight to be given to children's wishes
The ascertainable wishes of the child are one principle among those in section 83(1) of the Children Act, but a child's wishes are not decisive and must be treated with caution and objectivity.
Relying on section 83(1) of the Children Act and the decision of Njagi, J. in B.K. v E.J.H., the court held that the best-interest test is not subjectively dictated by a child's whims; a child's preference to stay with a particular parent, or to attend a particular school, is not automatically allowed and must be assessed objectively against all circumstances.
Appellate interference with exercise of discretion
An appellate court will not interfere with a judge's exercise of discretion unless it was based on a wrong principle or was clearly wrong.
Applying Githunguri v Githunguri, the court held that Majanja, J. had all the appellant's depositions in mind and lawfully exercised his discretion in favour of the respondent. Since no wrong principle or clearly wrong result was demonstrated, and the decision was interim in nature, the Court of Appeal would not disturb it.
Legal principles established
#- A child's best interests are of paramount importance in every matter concerning the child.
- Except in exceptional circumstances, custody of children of tender age should be awarded to the mother.
- An appellate court will not interfere with a judge's exercise of discretion unless it was based on a wrong principle or was clearly wrong.
- The wishes of a child must be considered but are not decisive of the best interests determination, and must be treated with caution.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Migori
- Civil Appeal No. 87 of 2015 (formerly Kisumu HCCA No. 32 of 2015)
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework (Children Act and appellate procedure); no specific constitutional provision invoked as basis of jurisdiction
Relief refused
#Custody of the two children to the appellant / reversal of the custody order
No exceptional circumstances or injudicious exercise of discretion by the High Court judge was demonstrated; the decision below was interim in nature
Costs
Each party bears their own costs of the appeal, this being a family matter
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.
A child’s best interests are of paramount importance in every matter concerning the child.
in determining matters of custody of children, and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother
An appellate court will not interfere with a judge’s exercise of discretion unless it was based on a wrong principle or was clearly wrong.
The wishes and feelings of a child must therefore be treated with a lot of caution.
We find no merit in this appeal and consequently dismiss it. This being a family matter, we order that each party bears their own costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J.O v S.A.O [2016] KECA 55 (KLR)", Case Analysis (2016). Civil Appeal No. 43 of 2015 (UR 16/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/55/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.