Jane (not her real name) is a college student and a mother. She was raped, and her father and mother pointed an accusing finger at each other.
She is a pawn in a blame game between the two parents - the father, codenamed TO and her mother MM.
In their child maintenance battle, her mother and father spare no effort to fault each other for her troubled life. They claim she is spoiled. However, Jane’s father and mother cannot agree on who between them is responsible.
Her father told the court that she disrespects and abuses him. On the other hand, her mother claims that he was responsible for the rape as he entertained his relatives in the home.
Justice Mumbua Matheka observed that the blame game has blinded both parents from seeing that she needs them and no one has taken the time to listen to her.
According to the judge, their broken love might have been the contributor to Jane’s troubles.
“This court wonders how these two parents can be oblivious to the fact that their relationship could be the greatest contributor to her so-called disturbed life. She even had a child when she was not ready to do so,” said Justice Matheka.
The judge was of the view that Jane and her child needed help from her parents as she was a victim of rape but they both did nothing.
“If it is true as stated by the appellant that this child was a victim of rape and they did nothing about it then they both need help together with their child. I emphasize that these circumstances call for extension of parental responsibility of both parents,” the judge said.
Her father never wanted to maintain her, claiming she is now of legal age while her mother sought to extend parental responsibility until she completes her diploma. Jane is a poster girl of the complexities of child custody and maintenance cases. Her case, alongside that of her siblings, has been in court for four years.
In the case, her mother asked the court to compel her father to pay for school fees, shelter, food at Sh20,000 a month, clothing, two house helps who are paid Sh10,000, and medical cover. MM also asked the court to order her ex-husband to return two children to their matrimonial home. The battle started at the magistrate’s court. The lower court ordered that her father would have her siblings while they are in school, and when they close, her mother would be with them 70 per cent of the holiday while the remainder, 30 per cent, they would be with their mother.
The magistrate also ordered that Jane’s mother would be with them every fortnight on Saturday and Sunday from 9am to 5pm and the two would agree at the drop-off point.
In addition, the magistrate ordered that all the minors should be counselled in order to understand the mucky situation they were in and heal from the wounds caused by their parent’s separation. Aggrieved, MMG moved to the High Court arguing that the lower court had erred by first separating one child from the other and issuing 30 per cent custody before the schools open from holidays.
She also lamented that the lower court had left the bigger burden of raising the minors to her adding that the court failed to factor in that her former husband had re-married and was not available to raise them.
MMG sought equal custody and responsibilities. TO was equally aggrieved. He argued that the lower court failed to listen to the children and ordered 70 per cent custody. He also argued that their mother could not provide for them. He was also opposed to an order in that he supported Jane, arguing that she was now an adult. At the same time, TO also asked the court to other that he has custody of the remaining child as the lower court had separated him from his siblings.
He claimed that MMG was unsuitable to raise children as she allegedly took the minors to a witch doctor.
However, when the minors were interviewed by the court, none spoke of visiting a witch doctor. In fact, they expressed a strong view of being with their mother over the school holidays.
Justice Matheka said: “The adults in this family have the responsibility to create a harmonious system that works for the children without causing them further trauma. This cannot be done by cutting ties when there are no proven grounds for that. The allegations and counter-allegations must be dealt with in the appropriate manner without creating a toxic environment for the children. The court cannot live with the families to see and direct what happens hence the moral duty of the parents to do the right thing.”
Lawyer Okweh Achiando says that a court can deny a parent custody if it is proved that they are incapable of taking care of the minors. He is of the view that a social inquiry can be conducted by the court or it can interview the minors to determine whether either the mother or father should have legal or physical custody.
“The custody of the child can be given to any parent but that cannot be a reason to deny either physical or legal custody. If a mother is a drunkard, or violent, irrespective of the age of that child, custody will be given to the father. If the father is inverse with the same negative character, in that case, that child cannot be given to the father. If this cannot be proved, then both should be given equal custody,” said Achiando.
In Milimani alone, the children’s court recorded 1954 children custody and maintenance cases last year. This translates to seven cases being filed daily. In 2021, there were 1761 cases recorded by the judiciary’s electronic filing system. In the three months of 2023, the number of cases is already at 500.
Meanwhile, Janet (not her real name) is stuck in Kenya and depends on her ex-husband John (not real name) in yet another twist in children’s custody and maintenance battles. Janet is an Australian national but has been in Kenya courtesy of John’s work permit. She is a lawyer. The two met in the UK.
Since Janet is John’s dependent, the law in Kenya bars her from working. In 2016, the two moved to Kenya following John’s employment. However, she said that they did not intend to make Kenya a permanent home.
However, their marriage hit the rocks and she filed a case in London seeking to part ways. They have two children who are six years and three years. In the meantime, she secured a job in the UK and wanted to leave the country with the minors. Her employer required her to start working from July 15, 2021 failure to which she would lose the opportunity.
The Achilles heel in the case were whether she could leave with the minors from Kenya. In her case, she argued that in the event John lost his job in Kenya, she would be required to leave Kenya, as she does not have a right to work here. Janet told John about her intention of leaving the country for the UK. In her case, she said that she was requesting his consent.
However, he declined. She claimed that he is a Canadian national while his parents travel between Kenya and Canada. She said that he is a man of means who could visit the minors in the UK in addition to having virtual access to them. At the same time, Janet argued that she has strong family ties in London and would support the minors live healthy life.
John in his reply told the court that he has an equal right to raise the children. He read mischief on the offer for employment and relocation to the UK. According to him, from email exchanges, she did not have a job as the offer had expired, and could not also travel as her visa had also expired. He also claimed that she did not explain how the living conditions are in the UK adding that she was leaving Kenya for the UK for her own interests and to separate the minors from him.
According to him, the cost of living in the UK is much higher than that of Kenya. He said he was born in Kenya. The magistrate said that if Janet left for the UK, it would be uncertain how she would take care of the minors in the event she lost the job. According to the lower court, she willingly came to Kenya knowing that there was a risk of him losing his job.
The court awarded the two 50:50 custody of the minors during holidays. It also bared Janet from leaving with the minors. At the same time, it ordered that each should switch to picking up and dropping the minors from school each week.
“For the avoidance of doubt, none of the parties is allowed to remove the minors out of the jurisdiction of the court without the consent of the other party or the order of the court,” the magistrate’s court ruled last year.
Lawyer Achiando says in order to balance Janet’s right to earn a living and parental responsibility, she and John should have just signed a parental responsibility agreement which would have allowed her to move to the UK but bring kids to their father whenever she is off from work or on holidays. “The woman can go and work and they can agree that you bring the kids during the time you are not at work or on holiday. The lady could have gone and agreed with the husband and have the same adopted by the court,” he said.