It was a promising union. The father was from Western Kenya and the mother from Central. In April 2015, their cohabitation brought forth a baby boy, whom we will identify as LPA for legal reasons.
But it didn’t last long. By January 2016, the relationship was on the rocks. As a court in Thika heard, the father, EA, and the mother, GN, got into disagreements.
There are blurred lines regarding how the boy parted company with his mother. What the High Court in Thika established is that LPA was eight-months-old when his mother left.
She would later tell a children’s officer that she saw no need to breastfeed the boy beyond six months.
Her separation from her child caught the eye of the judge, who noted: “A mother who willingly abandons a child at this stage cannot be said to have their best interest at heart.”
The parents were at the High Court because a lower court had, in November 2024, granted custody of the boy to the mother.
The father appealed this decision at the High Court, arguing that the lower court had erred in granting custody to the mother. He argued that it was not in the best interest of the child.
EA told the High Court that GN had “dumped” the baby with his (EA’s) sister at Railways, Nairobi, in January 2016. This, he said, was after he complained that the mother was leaving him at a day care for long hours despite his tender age.
From 2016 to 2020, the baby lived with his father in Kitengela, Kajiado County. Afterwards, he was moved to Kakamega to live with his paternal grandparents.
There are blurred lines regarding how the boy parted company with his mother.
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The court heard that in November 2023, GN, wanting to be part of the child's life, got papers from the Thika West Sub-County Children’s Officer summoning her ex to discuss the welfare of the child. This eventually led to filing a case before the magistrate.
Whereas the Thika magistrate granted custody to GN, the High Court ruled to restore it to EA.
“He (EA) wondered why she waited eight years before she came to claim custody...at the time the child barely recognised her,” reads the High Court judge's analysis of the case.
Because the mother is a nurse, said the judge, she “should know more than the court that breastfeeding is not the only aspect of growth of such a young soul”, inferring that she should have done more than suckle him for eight months.
“The father shall have exclusive actual custody of the child for the time being,” said the judge, who, however, noted that both parents would share legal custody of the child.
Counselling before reunion
Before any orders are made regarding LPA living with the mother, the judge said, the boy has to undergo counselling.
“The parties shall make arrangements for the child to go through counselling by a child psychologist with appropriate steps of reconnecting the child with the mother,” the judge said.
During the duration of the counselling, he added, the mother will have “limited and supervised visitations as the child psychologist shall recommend”.
“Upon completion of the counselling sessions, the parties shall be at liberty to apply for variation of the visitations and access (before a magistrate’s court),” the judge added.
The judge relied on what was placed before the magistrate by a children’s officer.
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The boy, who was in Grade Four at the time of the first case, had told the magistrate that he was more comfortable living with his father and paternal grandparents in Kakamega.
“He confirmed that both his parents were in court and that he wanted to continue staying with his father. He added that the last time he saw his mother was back in August 2023,” read the court’s summary of the proceedings.
“The child told the officer that his mother stayed in Thika with his other sister (born in 2018) and that he did not want to stay with his mother because she broke his sister’s leg while his father bought him crisps and soda every weekend and he liked him,” the court’s summary further stated.
“He also liked his current school...even after being picked by the mother, he wanted to be back with his father and grandparents...The report shows that after interviewing the child, parents, grandparents, aunt and the area chief, the officer concluded that the boy was scared about living with his mother."
With all those preferences, the judge wondered why the magistrate chose to grant custody to the mother.
His opinion of the mother, after reading the proceedings of the lower court, was that she “comes out as an untruthful and inconsistent person”.
“It is true that a child of tender age should be allowed to stay with their mother, but this applies only where the mother is responsible, available and has bonded with the child,” the judge said in his April 17 verdict.
While recommending counselling for the child before his mother can be granted further custody, the judge noted: “I have not lost sight of the fact that mother has a right and should be given a second chance to reconnect with her child, regardless of her antecedents. Further, the child has a right to know and bond with both parents, and it will be in his interest that this court allows a latitude which will enable the reconnection.”
