In re RJ – LD (Minor) [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Milimani Law Courts, Family Division
Category
Civil
Judge(s)
J. N. Onyiego
Judgment Date
September 24, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Discover the case summary for In re RJ – LD (Minor) [2020] eKLR, examining key legal principles and implications for minor's rights. Ideal for legal professionals seeking insights

Case Brief: In re RJ – LD (Minor) [2020] eKLR

1. Case Information:
- Name of the Case: MWM v. CAD
- Case Number: Miscellaneous Case No. 89 of 2019
- Court: High Court of Kenya at Nairobi, Family Division
- Date Delivered: September 24, 2020
- Category of Law: Family Law
- Judge(s): J. N. Onyiego
- Country: Kenya

2. Questions Presented:
The court must resolve the following legal issues:
1. Whether the applicant, MWM, is entitled to custody of the minor, RJ-LD.
2. Whether the applicant has met the criteria for the grant of wardship orders in protection of the minor.
3. Whether the applicant is entitled to a residence order in respect of the minor.
4. Whether the orders sought are in the best interest of the minor.

3. Facts of the Case:
The applicant, MWM, is the maternal grandmother of the minor RJ-LD, who is 1 year and 6 months old. The minor’s parents, TMK (the mother) and CAD (the father), have separated, leading to the mother relocating to Kenya from the U.S. with the child due to a lack of financial support from the father. The applicant asserts that the father is not caring and has a demanding job that keeps him away from home, making him unfit to care for the child. The respondent, CAD, claims he has been the primary provider for the child and has a court order from New York requiring the mother to return the child to the U.S. The applicant seeks guardianship and custody of the minor, citing the child's welfare as the primary concern.

4. Procedural History:
MWM filed an Originating Summons on May 27, 2019, requesting custody and guardianship of RJ-LD. The court granted interim custody to the applicant pending the hearing. The respondent filed a replying affidavit admitting paternity and asserting his capability and right to custody based on a New York court order. The case progressed with both parties submitting extensive arguments regarding jurisdiction, parental responsibilities, and the best interests of the child.

5. Analysis:
- Rules: The court considered the Children Act, particularly Sections 82 (on custody), 114 (on residence and wardship orders), and Article 53(2) of the Kenyan Constitution, which emphasizes the best interests of the child.

- Case Law: The court cited several cases, including MSA v PKA (2009) and K.M.M. v J.I.L (2016), emphasizing the importance of the child's welfare and the need for exceptional circumstances to justify custody orders that deviate from parental care. The court also referenced the principle that the mother of a young child typically has a superior claim to custody unless exceptional circumstances exist.

- Application: The court found that while the applicant is the grandmother, she does not fit the statutory categories for custody under Section 82(3) of the Children’s Act. However, the court recognized the need for a residence order to ensure the child's welfare, given the circumstances of both parents living in the U.S. and the mother's current unemployment. The court determined that the child should reside with the applicant pending the resolution of the main suit.

6. Conclusion:
The court ruled in favor of granting a residence order allowing RJ-LD to reside with the applicant, MWM, pending the hearing and determination of the main suit. The court emphasized that the best interest of the child is paramount and that the child must have a stable living environment while the custody issues are resolved in New York.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The High Court of Kenya granted a residence order for the minor RJ-LD to live with his grandmother, MWM, while the custody dispute is resolved. The court underscored the importance of the child's welfare and the need for stability, particularly given the ongoing legal issues surrounding custody in New York. The ruling highlights the complexities of international custody disputes and the application of Kenyan law in such contexts.

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