Use of cops to implement unlawful custody orders

Judge Joel Ngugi. [Samson Wire, Standard]

The use of police officers to enforce orders in custody cases has been declared illegal.

Judge Joel Ngugi, who is based in Nakuru, said the move was illegal, cruel and unjustified and should therefore never be considered in such cases.

“There is great potential and great danger of traumatizing the innocent minors involved through the use of armed officers,” he said.

Judge Ngugi said the use of armed police officers should only be considered sparingly if the party against whom the orders are being enforced have demonstrated stubbornness and impunity.

He added that the best interests of children are crucial when deciding on cases involving minors and that the possible impact of enforcement actions must be carefully considered.

Judge Ngugi said the use of armed police should be viewed sparingly. [Courtesy]

He accused a district court of instructing police officers to enforce and ensure compliance with an order for custody of two children aged 14 and eight.

“In the circumstances of the above case, the use of police officers to enforce the interim court orders was unjustified and premature,” said Ngugi.

The court also found that the use of officers caused trauma to the minors, according to an advisory report filed in court.

Ngugi made the decision in an appeal process that sees two minors at the center of a mother-father custody battle.

In the case, a divorced couple – SM (woman) and AN (man) – are fighting for custody of the two minors, with each party choosing a different place of residence for the children.

SM appealed to Ngugi on September 23 after Nakuru’s chief magistrate Benjamin Limo granted AN temporary custody of the children.

She said in court that not only did she want sole custody of her children, but she also wanted to relocate them to the United States, where she believes they will have better lives.

The court found that the use of officers caused trauma to minors. [Courtesy]

In his judgment, Ngugi accused Limo of transferring custody of both children, including the young child, to the father without performing the appropriate legal analysis required by law.

“In Kenya there is a rule that custody of children is transferred to the mother at a young age. The court prematurely awarded the child to the father, ”said Ngugi.

Ngugi therefore ordered a retrial and sent the file back to the lower court for further analysis and decision based on the report on both parents.

He granted the mother temporary custody, but ordered the father to have full access to the children.

Comments are closed.