Supreme Court: Neither parent has a superior right to a child

They observed that in the case, the teen's mother last saw her son on August 7, 2015, when a United Kingdom judge granted her former husband custody.

The Supreme Court judges were of the view that the orders in the UK were in contravention of the Kenyan Constitution.

They however left it to the teen to decide whom to live with as he has now attained majority age.

Meanwhile, the Supreme Court faulted the lower court for affirming the UK judgment that the teen should live in the UK. According to the five judges, the Kenyan courts failed to consider that the teen was a Kenyan and therefore had to enjoy all the rights bestowed to Kenyan citizens.

The mother lost custody after the English Court found that she had on one occasion hit him. In the case, the teen claimed that she had repeatedly hit him. A warrant of arrest was issued against her by that court.

It followed then that the woman codenamed MAK was declared an unfit mother.

However, the Supreme Court found it difficult to agree with the UK court after finding that there was no legal basis for it to find that she was unfit to raise her child.

"This leaves us in the dark because we cannot tell which legal standards were applied to arrive at this conclusion particularly because the superior courts did not test this evidence and no warrant of arrest is in the record, as evidence," the Supreme Court ruled.

In the case MAK produced as part of her testimony two medical reports on the child which revealed that there was no indication of any form of abuse against the child.

One of these is dated November 28, 2014 by a paediatrician in Kenya who had attended to the child's medical needs since 2013. The other is dated November 18, 2014 by a paediatrician in the United Kingdom. Both reports stated that there was no evidence of physical abuse on the child.

Supreme Court judges found: "Accordingly, we do not find sufficient cogent evidence on record to lead to the finding that the appellant is an unfit mother liable to zero direct contact with the child. As such, the Appellate Court erred in endorsing the High Court decision which purported to extinguish the appellant's parental rights and responsibilities."

MAK, the mother, was married to RMAA under the African Christian Marriage and Divorce Act in 2002. They got FKA but the union was dissolved on October 9, 2008 after the two agreed to share parental responsibilities.

MAK moved to the UK to pursue a Master of Laws Degree and took her son. However, while she was there, she was accused of assaulting FKA, found guilty in court and the minor taken away from her to be under the custody of the court.

Her petition was dismissed at the High Court in Milimani and she lodged an appeal, claiming the judge erroneously concluded that she was not a good person without according her a hearing.

Aggrieved, she moved to the Court of Appeal. However, Justices Patrick Kiage, Fatuma Sichale and Jamila Mohammed dismissed her appeal.

RMAA in his response said the UK courts acted reasonably and responsibly, adding that a court cannot fail to protect a child. He argued that parental rights do not trump the best interest of a minor. He asserted that the finding by the lower courts was sound and should be upheld.

And yesterday, the Supreme Court held that Kenyan courts should factor in the parental responsibility agreement between parties, the past performance of each parent, each parent's presence including his or her ability to guide the child and provide for the child's overall well-being and financial status of each parent.

At the same time, they directed that court should factor in the individual needs of each child, the quality of the available home environment, the need to ensure that children are not placed in alternative care unnecessarily, the mental health of the parents and totality of the circumstances.

"Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted," they ruled.