The High Court has refused to hand a Kenyan woman custody of her son after the Children’s Court put him under the care of his father, a senior ex-Scotland Yard detective.
The woman identified as XY is embroiled in a legal battle with her 67-year-old ex-lover, BH, over custody of their son.
XY said the magistrate at Tononoka Children Court deprived her custody of his son for 40 days yet he is still breastfeeding.
She said she is fearful that harm may befall the child while in the custody of his father because BH had asked her to abort the pregnancy and her son had sustained injuries while with him before.
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In her appeal, XY wants Justice J Ongi’injo to direct that she be given custody of the child who is now with BH.
Through lawyer Geoffrey Were, she also wants her arrest and detention for 21 days over contempt of court stopped. In her appeal, XY faulted the decision by Resident Magistrate LK Sindani of the Tononoka Children Court for allowing BH to take away their son for 40 days.
“The magistrate erred in law and fact by ordering XY to part with the custody of their minor yet as a biological mother, she was best placed to have custody of their minor,” Were said.
Sindani had on December 16, 2020, given custody of the child to BH for 40 days until January 25, 2021, when the custody case will be mentioned before him.
Sindani also ordered that XY be committed to civil jail for 21 days for being in contempt of court after she failed to heed orders directing her to allow BH to see his son. The magistrate also ordered her to stop insulting BH and not to sell a family house worth Sh11 million.
The magistrate had also directed XY to furnish BH with the child’s birth certificates to enable him to register the child as a British citizen and secure him an Irish European Union passport.
On Wednesday, Justice Ong’iinjo stopped XY’s arrest.
“There be a stay of all the proceedings and or all execution process currently ongoing at Tononoka Children’s court pending the hearing and final determination of the appeal,” she ordered.
The judge did not however direct BH to hand back the child to XY.
In her appeal, XY argued that BH, a British citizen, was likely to disappear with their son because he has no residence in Kenya. She said BH was likely to leave the country with their child, having booked a flight dated January 7, 2021, despite depositing his passport in court.
In an early application, she had accused BH of using their son as bait to get parenting payments from UK government. She also filed a case to stop BH from registering their son as a British citizen, questioning his motives.
She claims that BH, who now works as a security and terrorism consultant in Afghanistan, had squandered his wealth and was now out to use their son for financial gains.
“Registration of our son is only aimed to benefit BH who is now retired and will therefore be paid handsomely by the British government through our son,” XY said.
BH, however, denied the claims, saying XY was holding on to the child to continue demanding child support from him.
He claimed he had bought the house worth Sh11 million.
“XY regards the child as her lifetime ATM and she is fearful he may be taken from her,” said BH.
The two met in 2016 in Diani, Kwale County, when the Briton first visited Kenya as a tourist.
In documents filed before the Mombasa High Court, the two have accused each other of promiscuity and unworthy of raising their son.
“She operates at least 12 phones to facilitate her relationships with men,” BH stated.
XY denied the accusation, saying BH was adulterous and even sleeps with her relative.