A woman is fighting for custody of a child her former boyfriend had with another woman.
The High Court will be expected to determine whether a woman can be given custody of the child of her former boyfriend and another woman.
The man has opposed the application, arguing the woman had no right to take custody of the child since the baby's mother is still alive.
The woman, who works with the UN, wants the court to allow her to travel with the baby for holiday in Jordan.
The Magistrate Court had, on October 21, 2016, given the applicant and the respondent joint custody of the child.
The court allowed the woman to have access to the child, even when outside the country through a phone or Skype.
The woman is identified in court papers as HOO and the man as CSF to protect the identity of the child.
The man appealed the ruling before Family Court judge John Onyiego, arguing she does not deserve to be with his child as they were not married.
HOO wants the court to punish her former boyfriend accusing him of defying orders by refusing to allow the baby an opportunity to interact with her daughter, who she stays with in Jordan.
The woman, in an affidavit sworn on May 21 at the State of New Mexico, says she is a resident of the state of Jordan.
She further stated that despite having joint legal custody, the man has blatantly refused to allow her access the baby even when in Kenya.
"Having lost access to the minor during December 2016, April 2017, July 2017, December 2017 and April 2018 holidays, she deserves access to the baby for the July – August 2018 holidays hence the need to grant leave to travel to Jordan," said court papers.
“Lower court orders having not been stayed pending the appeal are still operational hence the leave sought which is in consonance with the orders of the court,” she said.
But the man said if she is granted custody, it would mean the court was settling the case without hearing why he was opposed to the idea of the baby travelling.
Justice Onyiego noted that although court orders should be followed, the child should not be allowed to travel to Jordan because of the bad blood between the two.
“There is an appeal challenging orders of the lower court on grounds the respondent, having been his girlfriend, had no right to have legal custody of a child born by another woman who is still alive and also entitled to access the baby as per their parental responsibility agreement before the magistrate,” the judge said.
Justice Onyiego said it would be hard for the court to trace the child in the event the woman is transferred from her work place, decided to cut off communication or decided to go to her motherland.
The case will be heard within 30 days.