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Court of AppealDismissedCivil Appeal (second appeal from High Court at Kerugoya, Children's custody matter)

FG & another v OGM (Civil Appeal E025 of 2023) [2026] KECA 681 (KLR)

Court of Appeal of Kenya
25 March 2026
3,352 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed grandparents cannot block a suitable surviving father from custody by demanding dowry or customary rites.

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 Nyeri by the maternal grandparents (FG and PGM) of a minor girl against a High Court decision which had set aside a Children's Court custody order in favour of the grandparents and granted the biological father (OGM) custody. The child's mother died in childbirth in 2014; the grandparents cared for the child but demanded dowry and customary rites before releasing her to the father, who had provided upkeep, medical cover and visited regularly. The Children's Court had granted the grandparents custody until the child turned 11, with the High Court on first appeal holding the trial court became functus officio in purporting to provide for review, and substituting an order dismissing the grandparents' counterclaim and granting the father's plaint. The Court of Appeal, comprising Kantai, Lesiit and Ali-Aroni JJJA in a single unanimous judgment, reaffirmed that on a second appeal under section 72(1) of the Civil Procedure Act it is confined to matters of law and bound by the factual findings of the two courts below. Applying Article 53 of the Constitution, sections 4(2), 6, 23 and 24 of the Children Act (2022), and its earlier decision in LAC & Another v MJC, the Court held that parental responsibility rests on the biological parents irrespective of marriage and that custom cannot override the child's best interests, which are paramount. Finding no evidence of the father's unsuitability, the Court held the best interests of the child required custody by her surviving natural parent, dismissed the appeal in its entirety, and ordered each party to bear their own costs as a family matter.

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 by setting aside the judgment of the trial court and placing the parental responsibility of the child upon the surviving parent
  2. 2.Whether placing the child in the custody of the surviving biological parent was in the best interest of the child

Key legal issues

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01

Scope of second appellate jurisdiction under section 72(1) of the Civil Procedure Act

Holding

The Court was bound by the findings of fact of the two courts below and confined itself to matters of law.

Reasoning

The Court invoked section 72(1) of the Civil Procedure Act and the Kenya Breweries Ltd v Godfrey Odoyo formulation, holding that a second appeal must be on matters of law and that the Court must resist delving into facts unless the courts below considered or failed to consider relevant matters, or the decision is perverse. The facts here were largely undisputed, so the appeal turned on the legal question of custody and parental responsibility.

p. 4
02

Parental responsibility of an unmarried biological father under the Constitution and the Children Act

Holding

The Constitution and the Children Act place parental responsibility on the biological parents irrespective of marital status; custom cannot override the child's best interests.

Reasoning

Relying on Article 53 of the Constitution and sections 4(2), 6, 23 and 24 of the Children Act (2022), the Court held that parental responsibility attaches to the mother and father whether married to each other or not. The appellants' insistence on dowry and customary rites was inconsistent with the child's statutory and constitutional rights, which are paramount over custom.

p. 6
03

Best interests of the child in a contest between maternal grandparents and the surviving biological father

Holding

The best interests of the child required that she be placed in the custody of her natural parent, as no evidence of the father's unsuitability was adduced.

Reasoning

Following LAC & Another v MJC, where maternal grandparents were pitted against a surviving father, the Court found the father suitable, financially stable and ready to assume full parental responsibility; the spouse had interacted with the child. Competing shows of love by grandparents and father must be complementary, and where they conflict, Article 53(2) makes the child's best interests paramount.

p. 7

Legal principles established

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  • A second appeal is confined to matters of law; findings of fact by the two courts below bind the second appellate court unless the decisions below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • Parental responsibility rests squarely on the mother and father of a child irrespective of whether they are married to each other, and custom or customary rites cannot override the best interests of the child.
  • Where a parent is alive, suitable and willing, the best interests of the child generally require custody to vest in the surviving natural parent rather than third parties such as grandparents.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party to meet their own costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya (first appeal from the Children's Court, Kerugoya)
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act - second appeal limited to matters of law

Relief refused

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Appellants' prayer that custody remain with them and that a report on the child's current emotional, social and psychological situation be ordered before judgment

No evidence of the father's unsuitability; best interests of the child require custody by her natural parent

p. 7

Costs

This being a family matter, we shall require each party to meet 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.

Consequently, we find no merit in this appeal, which we hereby dismiss in its entirety.
p. 7Disposition - dismissal of the second appeal
This being a family matter, we shall require each party to meet their own costs.
p. 7Costs order
the primary responsibility of a child is squarely placed on the mother and father of a child, irrespective of whether they are married or not, and this is devoid of any custom or customary rites
p. 6Parental responsibility and the limits of custom
In a second appeal, however, such as this one before us, we have to resist the temptation of delving into matters of fact.
p. 4Scope of second appellate jurisdiction

Issues in the judgment

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minor

The judgment is styled as a copy certified by the Deputy Registrar; the coram lists 'ALI-ARONI' without a first name or initial, which may affect matching to the correct judge.

minor

The case number of the appeal before the Court of Appeal is not stated anywhere in the judgment text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "FG & another v OGM (Civil Appeal E025 of 2023) [2026] KECA 681 (KLR)", Case Analysis (2026). Civil Appeal (second appeal from High Court at Kerugoya, Children's custody matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/681/eng@2026-03-25

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