Court rules that minor who escaped killing to remain with 'saviour' couple

A week after she was born on July 12, 2011, her mother died.

Ordinarily, a mourning father would take the baby and nurture her to a glowing daughter.

But in parts of Marsabit County, ordinary has another meaning. The community had to do what their culture demands of them -- the baby girl had to die. After all, she was a bad omen because her mother had died after giving birth to her.

But on the day the community had planned to eliminate her, her uncle alongside the area chief and clan elders whisked her away and ‘gifted’ a missionary couple who had camped in the area.

At the time, her father was far from home taking care of his herds and came back three weeks later.

Now, years later, the girl is at the centre of an intriguing court battle in which the missionary couple have been accused of abducting her.

But the court has ruled that the couple, identified as AN and JN in court papers, should temporarily keep the girl.

Justice Christine Meoli allowed the missionaries to formalise for full custody within nine months.

The minor’s surviving parent and other relatives will be accessing her from the missionaries' home as the couple formalises custody.

According to the court papers, her father, who the court code-named LK, was comfortable with the arrangement and often visited the missionaries’ home to see his daughter for four years. 

In 2015, the couple relocated to Kabete, Kiambu County, after their missionary sojourn ended. They took the minor with them.

Meanwhile, the minor named RK had two other siblings who were taken by her maternal aunt named KMI living in Nairobi.

The aunt also traced the missionaries who allowed her to access the minor; they became close and she would be allowed to visit her often. Her aunt remained the only contact between her father and the missionaries.

Sometime in 2017, LK changed his mind and asked the couple to bring back his daughter. RK's aunt and family supported him. 

Her maternal and paternal grandparents convened a meeting but could not agree on who was to have the child. While the maternal grandparents wanted the minor to be handed to her father, LK's own parents asserted she should remain with the missionaries.

After the meeting, the girl remained with her father in Marsabit for a few days after which the missionaries made a report to the county’s children services coordinator and the police, saying after the turn of events, it was unsafe for her to remain there. They claimed she was still under threat of being killed as the community still believed she was a bad omen.

From then on the relationship between the missionaries and the minor’s father turned sour.

RK’s aunt, who joined her father in the push to have the minor back, reported the couple to several children offices in Nairobi. However, only the children's office in Westlands summoned the two and after hearing them, it was decided that they should go to Laisamis Children's Department. Her aunt was unwilling to go there.

The custody row ended up in a magistrate’s court, which granted the missionaries custody until she turned 12 years.

Aggrieved, RK's father and aunt moved to the High Court, arguing that the lower court erred by failing to factor in that he was her biological parent, and that she was taken away without his consent.

In the appeal, he accused the missionary couple of abducting his child. The Marsabit County Coordinator joined efforts with the man, claiming that despite the history, the missionaries were child kidnappers and traffickers.

He said he wished RK should be reunited with her sisters and be taken care of by her aunt.

The missionaries denied that they abducted the minor. They insisted that her father’s customs and traditions were prejudicial to her welfare.

The judge declined to find who between her biological father and the missionaries ought to keep her. She, however, left the missionaries to apply for actual custody before the magistrate’s court.

“She is still a child of tender years and would be traumatised and her welfare adversely impacted by a series of changes in her custody arrangements. The orders that this court proposes to make may not be ideal, but neither are the circumstances of this case,” Justice Meoli ruled.