Mombasa court docket grants custody of husband and youngster regardless of mother-in-law’s protest over unpaid dowry
- The maternal mother-in-law told the court that the man was not married to her dead daughter and therefore should not be given custody of the baby
- She also told the Tononoka Children’s Court that her daughter was currently living with the man and the two had separated before her death
- The man, for his part, informed the court that the child’s grandmother was the reason for his separation from the late wife
A court in Mombasa has awarded a man custody of his child despite his mother-in-law’s protest over the unpaid dowry.
The two are locked in a two-year legal battle over who should live with the child following the death of the child’s mother.
Judge John Onyiego ruled in the man’s favor even though the child’s maternal grandmother wanted custody, contending that Kamba’s culture dictates that a man who has not paid a dowry has no custody of the child or the resulting children.
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The mother-in-law claimed the man was not married to her dead daughter; therefore, she should be the one who takes care of the child.
“We do not address the issue of marriage in this case where the man claimed he was traditionally married to the lady.
The accusation, the deceased [woman] and the man was not married under Kamba common law, therefore the father cannot claim custody,” the judge said.
He pointed out that in the Constitution, under Section 6(1) of the Children Act, a child has the right to live with and be cared for by his parents.
The court also found that the child’s grandmother appeared interested in claiming the child’s mother’s guardianship benefits.
The grandmother went to the Tononoka Children’s Court and asked for a certificate of appointment of her guardian.
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She argued that the child had been in her care since his mother’s death; hence she was the only one granted guardianship.
“Even before the mother died, I was the guardian, hence the desire to take care of the child and his estate,” she said.
According to the woman, her daughter was just the man’s friend, and the child’s birth was out of the relationship.
“When the child’s mother died, it remained in my care to this day. As the next of kin of my late daughter, I am entitled to claim her benefits, which is why I need a certificate of guardianship,” she said.
The woman told the court that the man had not paid a dowry and was therefore not legally married to her daughter.
The child’s grandfather said his late daughter lived with the man, but their relationship was abusive, which led to a breakup.
The father of the child, for his part, claimed that they were married according to their status and that the child was taken away from him after the mother’s death.
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The man complained that the child’s grandmother was the reason for his separation from the deceased wife and had wrongly prevented him from having contact with the child.
“Guardianship of the minor was requested without my knowledge, so the procedure was conducted in bad faith,” he said.
After hearing both parties, the children’s court awarded the man custody of the grandmother.
But the grandmother appealed the decision, saying the children’s court failed to consider the minor’s best interests and wishes.
The judge found that the issue of marriage or the settlement of terminal benefits is not a key consideration in determining guardianship.
“Unless there are exceptional circumstances justifying exclusion, the man as the surviving parent is considered eligible to act as guardian for the minor,” Onyiego said.
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