The Supreme Court has ruled that the amount of money one has cannot be a basis for denying or granting custody in a child dispute case. [Getty Images]
The Supreme Court has ruled that the amount of money one has cannot be a basis for denying or granting custody in a child dispute case.
While dismissing a man's case over a girl born in 2015, Judge Patricia Nyaundi said her mother could not be excluded from placement just because her father earned more than her.
According to her, the girl needed her mother to educate and guide her more than her father since she was still at a tender age.
“The defendant’s weak financial situation is not a factor that will adversely affect her in determining whether she should be awarded custody. The minor was born on July 14, 2015; she is a female child. The doctrine of the tender year favors that a female child of tender age is in the care of her mother,” judge Nyaundi ruled.
The dispute between the two parents began in the district court. In his case, the man codenamed CS claimed that the mother of the minor codenamed NK had abandoned her.
However, the lower court ruled in favor of the mother. He was ordered to pay at least Sh15,000 per month for the minor's food as well as fees and school-related expenses.
The court also ordered that both of them should share the medical expenses equally.
NK was instructed to provide shelter, sort the remaining portion of food, purchase clothing, and provide household supplies.
Distressed, CS went to the Supreme Court. He claimed the lower court erred in awarding custody to NK since she abandoned him and the child in 2021.
He argued that he was the sole carer and was supported at some point by NK's sisters. After the two sisters left, he said, he hired a nanny to help him care for them.
CS called his sister to support his case. She told the court that NK had rejected attempts to resolve their differences. She also claimed that her brother's house in Madaraka, Nairobi was well secured and spacious for the minor to play and grow.
The court also heard he had the financial means to look after her.
But NK told the court that she left the matrimonial home after CS beat her. While she denied that she had abandoned the child and her father, she stated that when she tried to return, she found that CS had instructed security guards not to let her into the house.
The court heard the man had another family in South Africa where he worked. NK argued that the man did not take good care of the minor.
She also called her sister, codenamed RM, as a witness. RM told the court that the night before NK left, she heard CS beating her. She denied that NK abandoned the minor.
After hearing the competing submissions, Justice Nyaundi said CS contributed to NK leaving the house.
“The court was convinced by RM’s testimony that the appellant attacked the defendant and chased her out of the house. Therefore, it is not true that the respondent abandoned the minor,” she said.
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