High Court in Nakuru allows men to have custody of children below 9 years » Capital News

NAKURU, Kenya, Apr 7 – The High Court in Nakuru has issued a landmark ruling allowing men to have custody of children below nine years of age.

Nakuru Resident Judge, Justice Joel Ngugi stated that there is no reason to restrict legal custody to one parent only in a situation where there was no evidence that either parents are unfit or suitable to take up the role.

He was delivering a judgement in a case where a couple was fighting for the custody of their two children aged nine years and 15years.

The couple allegedly married in Alabama State in the United States on America but officially divorced in 2010 due to irreconcilable differences.

By the time of divorce on November 20, 2010, the couple had one child born in 2007 whose custody was given to the mother by the at the Domestic Relations Circuit Court of Jefferson County, Alabama with the father getting defined visitation privileges.

However, romantic love flourished between the couple once again shortly after their divorce, they moved in together and a second child was born in 2013.

“All the while, father, mother and children lived in the US with the children although they did not remarry,” read part of the judgment.

It stated that in 2015, the couple agreed to come back to Kenya and set up a family business in the hotel industry with the man coming in first followed by the elder child later in the same year after which the woman followed with the second-born child in 2017.

“As conceived, the plan was for the Appellant and Respondent to continue to live together as a couple in Nakuru where they would bring up their two children,” observed Justice Ngugi.

Facts in the judgment stated that the appellant who is the mother to the children moved in with the Respondent at his home in Milimani, Nakuru and remained in the Country for a little less than two years before moving back to the US in 2019 to when the plans for her to have a sustainable business failed.

The judge said the parties disagree on what transpired in the two years that they were together in Kenya as the man claimed that he set up a business for his partner but she allegedly abandoned it and the two children to ga back abroad,

The court noted that the woman on the other side, insisted that the Respondents’ parents had promised them jobs, a house, a car and a business if they relocated back to Kenya but that after she came back the promise was never fulfilled.

“She returned to Kenya around July, 2021. She confessed that her intention was to renew the American passports for the two children so that she could return with them to the US,” said Ngugi.

He noted that the parties disagreed on whether the woman was acting per their earlier agreement or whether she was now acting unilaterally because according to him, the only existing agreement was the one they made in 2015 to relocate and brig their children up in Kenya.

Fearing that his spouse would take the children back to the US, the man filed the matter in the Children’s Court because he also feared that, he would not have free or easy access to the children if they relocated back to the US since he was no longer a Green Card holder.

He asked the lower court to give him Legal and actual/physical custody of the minors.

The man told the magistrate’s court that he was shouldering all responsibilities over the minors and was willing to shoulder the same should the defendant be unwilling to share.

The lower court granted the man custody but his spouse appealed against the judgment saying that the trial court.

From the evidence adduced in court, it was clear that the man lived with the children since they were four years and eight years respectively.

Ngugi said while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law.