FAS v FAE & another (Divorce Cause 07 of 2015) (Family) [2022] KEKC 148 (KLR)
The bottom line
#A Nairobi Kadhi's Court dismissed a father's bid to review custody access orders, ruling that wanting different terms is grounds for appeal, not review.
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 application satisfies the requirements for a review or reconsideration of the orders of March 16, 2018 on access and visitation
- 2.Whether the applicant demonstrated new and important evidence, an error apparent on the face of the record, or any other sufficient reason warranting review
- 3.Whether the child's age and maturity constitute a material change of circumstances justifying variation of custody/access, and what weight must be given to the child's own wishes
Key legal issues
#Grounds for review under Order 45 CPR and Rule 79(1) KCPPR 2020
The applicant failed to demonstrate discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason; his submissions amounted at most to grounds of appeal
The court set out the three grounds in Order 45 and the fourth added ground (clarification) under Rule 79(1) KCPPR. It found the applicant's submissions heavy on what would qualify as grounds of appeal but thin on evidence of any error or new material. Relying on Pancras T Swai v Kenya Breweries Ltd, an erroneous conclusion of law or evidence is a ground for appeal, not review.
Review of custody and access orders under Rule 162 KCPPR 2020 and the best interests principle
Although the KCPPR 2020 envisages unlimited review of children's custody and maintenance matters, the applicant had to show the review was based on the child's best interests and credible proof of material change of circumstances
Rule 162(1) permits the court at any time to revoke, review, suspend or vary orders concerning the status of children or financial provisions, and Rule 162(2) permits rescission or variation upon proof of change of material circumstances. The only material change identified was the child's age and maturity, which the applicant failed to demonstrate reflected the child's wishes.
Weight to be given to the wishes of a child of discernment under Islamic law and section 76(3) of the Children's Act
A child above the age of discernment may in principle choose her preferred custodian, but the choice must be tested against her best interests, and the court must have regard to her ascertainable feelings by age and understanding
The court relied on classical Islamic authorities (Ibn Qudamat al Maqdisy in Al Mughni; Al Shaukany in Nail al Awtar; Ibn Qayyim on considering the child's best interest before resorting to lots or choice) and on section 76(3) of the Children's Act cap 141. It held the parties should have requested that the child be called to inform the court of her wish, which may still be considered on application by either party.
Legal principles established
#- A wrong application of law or a wrong finding of fact does not qualify as a ground for review; it may only qualify as a ground of appeal
- Review of children custody and maintenance orders requires demonstration that the review is predicated on the best interests of the child and credible proof of material change of circumstances
- Under Islamic law a child who has attained the age of discernment may choose her preferred custodian, but that choice must be tested against the child's best interests
Court orders
#- 1.The applicant's Notice of Motion dated October 18, 2021 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction under Order 45 of the Civil Procedure Rules and Rules 79(1) and 162 of the Kadhi's Court (Practice and Procedure) Rules, 2020, in a children's custody and access matter
Relief refused
#Review or setting aside of the access/visitation orders of March 16, 2018
Applicant failed to demonstrate any ground for review under Order 45 and Rule 79(1); a wrong application of law or wrong finding is a ground of appeal, not review
Unlimited access and visitation of the minor at her school, equal sharing of access on all school holidays and right of sleep-over at the applicant's family residence
The applicant failed to demonstrate that the review sought is predicated on the child's best interests and upon credible proof of material change of circumstances; the child's own wishes were not ascertained
Refund of KES 85,900.00 school fees paid to Nairobi Muslim Academy
Application dismissed in its entirety; respondent deposed that school records do not show any monies were paid in respect of the minor at the Nairobi Muslim Academy
Costs
The application is dismissed with costs (costs awarded to the respondents)
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.
The applicant has to demonstrate the review sought is not merely for his convenience but is predicated on the best interests of children and upon credible proof of material change of circumstances.
'an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.
The application lacks merit. It is hereby dismissed with costs. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FAS v FAE & another (Divorce Cause 07 of 2015) (Family) [2022] KEKC 148 (KLR)", Case Analysis (2022). Not stated in judgment (Kenya Law case No. 239815). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/148/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.