In a society where few men take up a supportive role in raising children, the death of a wife means handing over a child to in-laws.
A man and his ageing parent-in-law are embroiled in a bitter fight for the custody of a six-year-old minor, who is currently under the care of her maternal grandparents in Embu County.
As the matter is waiting to be resolved by the Court of Appeal, the judges will be grappling with who between the opposing sides should be granted full custody of the girl, whose mother died at childbirth in 2014.
What happens when your wife dies and leaves you with an infant? Do your raise the child or you give him or her to relatives?
In a society where few men take up a supportive role in raising children, the death of a wife means handing over a child to in-laws. But this can haunt you years later.
A man and his ageing parent-in-law are embroiled in a bitter fight for the custody of a six-year-old minor, who is currently under the care of her maternal grandparents in Embu County.
As the matter is waiting to be resolved by the Court of Appeal, the judges will be grappling with who between the opposing sides should be granted full custody of the girl, whose mother died at childbirth in 2014.
The matter has been in court corridors since 2017 when the father, identified as OGM to protect the child— filed a case before a Kerugoya magistrate to compel his in-laws—FG and PGM— to release his daughter.
The magistrate granted the grandparents custody of the girl until she attains 11 years when the order can be reviewed. But the decision was reversed by a High Court judge last year, saying there is no provision in the law, which provides that custody of the child be granted to grandparents.
The decision was, however, overturned by the Court of Appeal and the grandparents handed the minor, pending the determination of the appeal.
The Court of Appeal judges said since the minor has been living with the grandparents for six years, it was best that they continue staying with her, pending the hearing and determination of the case.
Evidence presented before court was that the child’s mother died after giving birth on July 8, 2014.
Soon after learning of their daughter’s death, FG and PGM rushed to the hospital and offered to stay with the infant as the father cleared the medical bill and arranged for burial.
After the burial, he requested his in-laws to continue taking care of the minor as he made arrangements to welcome the newborn daughter home. The in-laws promised to give him the baby once he settles down. Meanwhile, he was granted unlimited access to the minor.
Although the grandparents were accommodating the minor, he provided all the financial support to cater to her needs; food, medical expenses, clothing, and all other necessities.
When he thought he was ready to take the baby one year later, the in-laws refused, forcing him to go court.
The man argues that he is in gainful employment, capable and willing to cater for the minor, and he is the only living biological parent.
He argues that it was his wish to provide a stable loving home to his daughter, but the grandparents have refused to release the child.
He told the court that at first, his in-laws advised him to look for elders, as they ascertained that there were certain cultural customs including payment of dowry, that he had to fulfil before he was allowed to take the minor.
He did as advised, paid the requested dowry of Sh20,000, but they again refused to give him the minor, allegedly barring him from their home.
After hearing the case, a Kerugoya magistrate dismissed his application and handed the grandparents custody of the minor. The court said he could still access the girl and provide for her needs.
The magistrate observed that if the child is given to the father, who remarried, then the child will be placed in the care of a ‘stranger’ and her safety cannot be guaranteed.
He appealed to High Court Judge Lucy Gitari who overturned the decision, saying grandparents have no right to assume parental responsibility for a child when his parent is alive and have the means and is willing to take up parental responsibility voluntarily.
“The child has a right to parental care and denying the child the right cannot be in his best interests. The (Children) Act provides that even where the father and mother were not married, the father shall acquire parental responsibility,” the Judge said.
She observed that OGM had bonded with the child, because of the access and even called him dad.
“The best interests of the child is that she should be brought up by her only surviving parent who is ready and willing to take his responsibility for the child,” she said.
But no willing to give up easily, the grandparents moved to the Court of Appeal. They argue that the Judge failed to appreciate that the minor has lived for six uninterrupted years with them and that change of environment (Nairobi) would impact negatively on her minor.
They said it was not proper for the Judge to grant custody, care, and control of a young girl to the father without demonstrating the existence of any exceptional circumstances as opposed to allowing them to continue performing that role subject to visitation rights.
“We find this point arguable notwithstanding that they may not ultimately succeed,” Justices William Ouko, Roselyn, and Hannah Okwengu said.
According, to the Children’s Act 38, of 2005 in Section 9, a child’s best interests are of paramount importance in all matters concerning the care, protection, and well-being of a child.
They directed the girl to be returned to Kerugoya, pending the determination of the appeal.
“This will avoid the minor being destabilised by being moved again should the applicants succeed on appeal,” the judges said.
