R A O v C O O [2014] KEHC 2278 (KLR)

IN THE  HIGH COURT AT  MIGORI

CIVIL APPEAL NO. 6 OF 2014

BETWEEN

R  A  O .................................... APPELLANT

AND

C  O  O ................................ RESPONDENT

(Being an appeal from the Judgment and Decree in Rongo Principal Magistrates Divorce Case No. 29 of 2012 dated 11th September 2014 by Hon. Z. J. Nyakundi, Ag SPM)

JUDGMENT

This appeal arises from a judgment of the Subordinate Court at Rongo where the learned Magistrate made the following orders:

The marriage between the plaintiff and the defendant be and is hereby dissolved.

The defendant is granted custody of the children of the marriage.

There is no order as to costs.

The appellant’s claim in the subordinate Court was undefended hence the appellant was shocked when the learned Magistrate, after allowing the divorce, awarded custody of the children to the defendant.  It is this order that has precipitated this appeal.

As this is the first appeal, I am alive to the responsibility of the court. This court is called upon to analyse and re-assess the evidence on record and reach its own conclusions bearing in mind that it neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co.[1968] EA 123).

In my view,  the  learned  Magistrate  had  no  basis  for granting  custody  of the children to the defendant when  there  was  no  cross claim  by  the  defendant  for  custody  and when in fact  the  claim  was  undefended.  This was a grave error which calls for intervention of the appellate court.

Furthermore,  in  proceedings  of  this  nature concerning children,  the  best  interests  of  the  children are of  paramount  importance as  demanded  by  Article 53(2) of the Constitution and section 4 of  the  Children Act.   The  learned  Magistrate  failed  to  take  this  into  account  when  he  made an order awarding custody of the children to the defendant without investigating the circumstances of the children.

The appellant has always been in custody of the three children of the marriage:  S A, I W and T Z.  There was no evidence to warrant a change in the circumstances of the custody of the children.

The  appeal is therefore  allowed  to  the  extent  that  the  judgment dated  11th September 2014  is  varied on terms that the order granting custody of the children to  the  defendant  is  set aside and substituted with that granting custody of the children to the plaintiff/appellant herein.

There shall be no order as to costs.

DATED and DELIVERED at MIGORI this 24th day of October 2014.

D.S. MAJANJA

JUDGE

Appellant in person