A court has rejected a bid by a grandmother and aunt to compel a young girl to undergo surgery for a tongue-tie condition and further medical assessment, ruling that her welfare must first be properly established before such major interventions.
Justice Helene Namisi dismissed an appeal by FMWM and MMNM against directions issued by a Nairobi Children’s Court magistrate, who declined to grant their urgent requests without first hearing the girl’s father, TPW.
However, the judge clarified that a Children Officer cannot make final judicial decisions on medical interventions or access arrangements, saying the officer’s role is to investigate, advise and recommend measures for the court’s consideration.
In a judgment delivered on October 23, 2026, Justice Namisi upheld the magistrate’s decision to seek a welfare report but varied two directions that appeared to give the Children’s Officer authority to issue binding orders.
The dispute involves a minor identified as ONW, whose mother, BNMW, died on December 21, 2023. The girl remained in the care of her father.
Following the mother’s death, the father filed a case seeking to formalise custody and guardianship. The maternal grandmother and aunt subsequently filed a separate case seeking similar orders. The matters were consolidated, but court-annexed mediation failed, leaving the custody dispute pending before the magistrate.
The immediate dispute arose when the two relatives filed an urgent application on July 2, 2025, seeking orders compelling the father to take the child for surgical correction of an alleged tongue-tie condition and an independent developmental assessment at either Gertrude’s Children’s Hospital or Aga Khan University Hospital.
They claimed the condition affected the girl’s speech and self-esteem and raised concerns about possible developmental delays associated with autism spectrum disorder. They also sought access to the child on alternate weekends, alleging that the father had stopped their visits after an initial period of regular contact.
On July 4, 2025, Principal Magistrate Andrew Githinji Munene declined to grant the substantive requests without hearing the other side. Instead, he directed the application to be served for an inter partes (involving both parties) hearing on August 13, 2025, and ordered a Children Officer to interview the parties and the child, assess the circumstances and prepare a report.
The relatives challenged those directions, arguing that the magistrate had effectively decided their application without hearing them and unlawfully transferred judicial powers to an administrative officer.
The Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
In opposing the appeal, the father maintained that the magistrate had acted cautiously in a sensitive family dispute and that the relatives’ requests should not be granted on the strength of their own observations alone.
He relied on a report prepared by consultant developmental paediatrician Dr Susan Wamithi of Aga Khan University Hospital following an assessment on June 9, 2025.
According to the judgment, the report found that the girl spoke in full sentences, had outstanding public-speaking skills and did not have a speech impairment requiring tongue-tie surgery.
The assessment diagnosed Level 1 autism spectrum disorder and recommended occupational therapy for sensory integration and parental support classes in applied behaviour analysis. It did not recommend surgery or other drastic medical intervention.
The father also raised allegations about the relatives’ motives, linking their actions to a pending succession case concerning their deceased mother’s estate. He claimed they were seeking control of assets, including pension benefits, while disregarding his position as the surviving parent.
He further alleged that the child had been emotionally distressed during previous visits after relatives made derogatory remarks about her weight and hair.
The judge noted that these allegations would need to be tested before the trial court. They were not findings that the court had conclusively established in the appeal.
Justice Namisi said the circumstances demonstrated why the magistrate had been right to seek independent information before making decisions that could significantly affect the child.
The judge rejected the relatives’ argument that the magistrate had unlawfully delegated his judicial responsibilities by directing the Children’s Officer to assess the need for medical attention and determine whether access arrangements were necessary.
The Children Act, 2022, gives Children’s Officers a role in investigating a child’s circumstances and preparing reports to help courts make decisions. Section 97(1), the judge noted, empowers courts to direct a person to prepare and present information about a child.
Court rejected a bid by a grandmother and aunt to compel a young girl to undergo surgery for a tongue-tie condition before hearing the father.
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Justice Namisi found that the magistrate’s wording had come close to giving the officer powers that belonged to the court. In particular, the directions that the officer “shall issue appropriate directions” and that the parties “shall comply” were inappropriate.
But the judge said this did not justify overturning the entire ruling or granting the relatives’ contested requests.
Instead, the court clarified that a Children’s Officer may facilitate emergency medical attention where an inquiry identifies an acute need threatening the child’s immediate survival or well-being. The officer must then promptly file a report and recommendations for the court’s consideration.
On access, the officer may assess whether visits are in the child’s best interests and recommend suitable arrangements, taking account of her welfare, safety and emotional needs. The court retains the final authority to adopt, vary or reject those recommendations.
The judge also rejected the claim that the magistrate had failed to prioritise the child’s best interests by refusing to order immediate medical intervention.
Article 53(2) of the Constitution makes a child’s best interests paramount in every matter concerning the child, while Section 8 of the Children Act reinforces the duty to protect children’s welfare.
Justice Namisi said the principle required the court to consider the child’s physical, emotional and developmental needs, as well as the ability of those caring for her to meet them.
She noted that the application sought potentially invasive medical intervention before the father had been heard, despite his position as the surviving parent with parental responsibility under Section 34(1) of the Children Act.
The judge observed that the trial court had not finally decided the medical or custody questions. It had scheduled an inter partes hearing and sought a welfare report to help establish the child’s circumstances.
The judgment stated that it would be contrary to the child’s best interests to order invasive surgery based solely on the relatives’ ex parte affidavits without independent verification.
“The learned Magistrate did not err in law or fact by refusing to grant mandatory, irreversible medical and access orders on a first ex parte listing,” Justice Namisi ruled.
