Court orders grandmother to hand child to father

A court has ordered a grandmother to hand her grandchild to her late daughter's boyfriend in a court battle that now shifts focus on traditions against men's parental rights.

The battle between the woman codenamed as SNM against her grandchild's father codenamed PNN was that he had not paid dowry for the deceased codenamed CMN.

In Kamba traditions, where a man has not paid dowry to a girl, he has no right to custody of a minor born out of love escapades. That child remains with the maternal family in the event his or her mother dies.

However, Justice John Onyiego yesterday ruled that the minor had a right to be raised by her father as the next immediate and only surviving parent.

The battle between SNM and PNN started at the magistrate's court. The lower court ordered that the minor should be handed to the businessman but with unfettered access by her grandparents.

Aggrieved, the grandmother moved to the High Court, Family Division, arguing that the lower court had erred by granting custody to the father.

But Justice Onyiego asserted that a minor has a right to be raised by his or her parents and if one of them passes, he or she ought to be raised by the surviving one.

"To remove the child from her father will not serve her interest under Article 53(1) and (2) of the Constitution. I do not find any principles under Section 76, 82 and 83 of the Children Act that were not considered. The learned magistrate adequately and properly addressed all salient issues worth consideration and arrived at a proper conclusion," said the judge.

In the case, SNM told the court that her daughter died on January 11, 2020. Following CNM's death, she has been taking care of her granddaughter. The court heard that she had also gone ahead to apply for guardianship as she wanted to take care of the minor's estate.

The child's voice

She, however, admitted that PNN was her grandchild's father. However, according to SNM, the magistrate's court failed to consider her grandchild's voice regarding who she wished to live with and to take care of her.

She claimed that the man had mistreated the child and her mother, leading to separation.

At the same time, SNM lamented that the court had not factored in the geographical differences between the minor's father's residence in Meru and Mombasa where she had been living since 2020.

SNM's case was supported by her husband codenamed NN. The child's grandfather also admitted that PNN had cohabited with his daughter but their relationship was acrimonious, resulting in a separation.

On the other hand, PNN told the court that he is a businessman and was married to CNM under customary law. According to him, his daughter was taken away after her mother died.

PNN testified that he was capable of taking care of the minor. The man called his friend AM as a witness. AM told the court that he knew the deceased and PNN as a married couple, adding that he was the godfather to the minor during baptism.

According to him, the minor's grandparents were only interested in their late daughter's wealth and not taking care of their granddaughter.

He claimed that the grandmother was the cause of their separation.

After hearing the two sides, Justice Onyiego pointed out that he was not dealing with succession or an issue of marriage. According to him, it is unfair to tie the right of a child to be raised by a parent to marriage.

Priority

"My understanding of Section 83(3) of the Children Act is that priority in granting custody of a minor is given to the parent unless there are exceptional circumstances to exclude such parent from assuming custody. The allegation that the deceased and the second respondent were not married under Kamba customary law, hence the father cannot claim custody, is not tenable," said Justice Onyiego.

The judge said the minor would only remain with her grandparents if there was consent from her father or a will from the deceased granting them the right to take care of her.

He ruled, "In the absence of any consent from the biological father, will or deed from the deceased mother for the appellant to assume guardianship, I do not find any specific reason to deny the father custody to his baby."