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Court of AppealDismissedCourt of Appeal Second Appeal (Children's Case No. 1282/2017; HCCA No. 108/2018)

LAC & another v MJC (Civil Appeal E119 of 2021) [2022] KECA 68 (KLR)

Court of Appeal of Kenya
4 February 2022
RNR. N. NambuyeFSF. SichaleSKS. ole Kantai
3,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a surviving biological parent keeps custody unless someone proves compelling reasons the child is better off elsewhere.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi arising from a custody dispute over a minor born in 2011 to the respondent, MJC, and KNC (deceased). After the parents' marriage broke down and was dissolved in England, the deceased returned to Kenya with the minor and lived with her parents, the appellants. Following the deceased's death from cancer in October 2017, the appellants, as maternal grandparents and named guardians under her unproved will, sued for permanent sole custody, while the respondent counterclaimed for custody as the surviving biological parent. The Children's Court at Milimani placed custody with the appellants until the minor turned ten, with access to the father. On first appeal, Achode, J. allowed the respondent's appeal and placed custody with the surviving parent. The Court of Appeal, constituted of Nambuye, Sichale and ole Kantai, JJA, dismissed the grandparents' second appeal. Restating its mandate under Section 72 of the Civil Procedure Act to consider matters of law only, the Court held that Article 53(2) of the Constitution makes the child's best interests paramount, and that in the ordinary course a child's rearing by a biological parent serves those interests absent compelling reason. Finding that the respondent had secured employment, enjoyed extended family support, could provide education in the UK and had shown commitment to the minor, and that no exceptional circumstances existed to remove her from the surviving parent, the Court affirmed the High Court decision and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court erred in setting aside the findings of the subordinate court and holding that it was the respondent, as a natural parent, who could take care of the best interests of the minor.

Key legal issues

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01

Scope of the Court of Appeal's mandate on a second appeal

Holding

The Court is confined to matters of law only and must resist interfering with findings of fact of the lower courts unless no reasonable tribunal could have reached that conclusion.

Reasoning

Section 72 of the Civil Procedure Act donates the mandate to hear second appeals on grounds that the decision is contrary to law, failed to determine a material issue of law, or that there was substantial procedural error. Relying on its own precedents, the Court restated that it considers only questions of law and will not disturb concurrent factual findings absent perversity or misdirection.

p. 4
02

Whether custody of the minor should vest in the surviving biological parent or the maternal grandparents

Holding

The High Court was right to place custody with the surviving parent; absent exceptional or compelling circumstances, the best interests of the child lie with the surviving biological parent.

Reasoning

Article 53(2) of the Constitution makes the child's best interests paramount, and Section 83 of the Children's Act lists the principles for custody orders, all cutting through to best interests. The respondent had secured employment, had extended family support nearby, could secure education in the UK, and had demonstrated love and commitment through visits and holidays. The minor was happy to live with either, but the default expectation of rearing by a biological parent was not displaced.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered, failed to consider matters they should have considered, or that the decision is perverse.
  • The best interests of the child are the paramount consideration in every matter concerning a child, and in the ordinary way the rearing of a child by a biological parent can be expected to be in the child's best interests; a child should not be removed from the primary care of a parent without compelling reason.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority
FS
majority
SK
majority
On appeal from
High Court of Kenya at Nairobi
HCCA No. 108/2018
Jurisdiction invoked
Section 72 of the Civil Procedure Act (Cap 21) - second appeal to the Court of Appeal from every decree passed in appeal by the High Court

Relief refused

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The appellants' appeal against the High Court's placement of custody of the minor with the respondent (surviving parent)

The Court found no merit; the respondent had shown he was best suited to care for the child's best interests and there were no exceptional circumstances to remove the child from the surviving parent

p. 5

Costs

Each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
p. 4Second appeal mandate
A child should not be removed from the primary care of his or her parents without compelling reason.
p. 5Best interests of the child - biological parent presumption
There were no exceptional circumstances for the child to be taken away from the surviving parent.
p. 5Custody - surviving parent
This appeal has no merit and we hereby dismiss it. Considering the relationship of the parties, let each party bear their own costs.
p. 6Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "LAC & another v MJC (Civil Appeal E119 of 2021) [2022] KECA 68 (KLR)", Case Analysis (2022). Court of Appeal Second Appeal (Children's Case No. 1282/2017; HCCA No. 108/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/68/eng@2022-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.