A woman has contested a judgment that only allowed supervised nine-hour access to her daughter every year.
In his judgment, Nakuru Senior Resident Magistrate Benjamin Limo ruled that EW was unfit to raise EM. He granted the custody to MT. “EW will have access to the minor on the first Saturday of each of the closing school holidays for three hours only,” ruled Mr Limo.
Mr Limo further restrained EW or her relatives from visiting the child at her school until she attains the age of 18. EW and MT have been embroiled in a custody dispute since February 2012, when EM was 16 months old.
The case has now moved to the High Court in Nakuru before Justice Teresia Matheka. On Tuesday, Justice Matheka ordered MT to present the child currently under his custody tomorrow at 8.30pm for the court to see her.
EW now wants Justice Matheka to quash Mr Limo’s judgment. She accuses Limo of being biased.
She wants the judge to quash a report from the Children’s Department that sided with MT, saying it was also biased. “The appellant wants the court to direct the Judiciary ombudsman to investigate conducts of judicial officers and supporting staff of both Milimani and Nakuru law courts in the respective cases and make recommendations on the disciplinary measures to be preferred against them,” reads her application.
She wants the court to either grant her full custody of the minor as per the law or allow her access during weekends and holidays.
Court records show that MT entered a customary marriage with EW on February 3, 2009, and they were blessed with EM.
However, domestic wrangles forced EW to flee her matrimonial home on August 23, 2011.
MT took over the custody of the minor in February 2012 when she was 16 months and a dispute ensued between the two. EW, in her documents, claims MT forcefully took over the minor and vowed never to allow her access to the girl. Aggrieved, EW moved to a court in Kikuyu, Nairobi, and obtained an order from the then Senior Resident Magistrate Clara Otieno, dated February 14, 2012.
Ms Otieno had issued orders for the minor to be taken from her father and returned to her mother. The orders were challenged by MT.
MT won custody and EW moved to the Milimani High Court and appealed under Number 289 of 2012.
She claims she was granted interim custody but the file disappeared for over two years.
Out of desperation
Frustrated by the delay in the case, EW, who claims it was out of desperation for not seeing her daughter for four years, went to her daughter’s school on October 15, 2019, and took her away.
MT moved to Limo’s court and south EW. He accused her of ‘abducting’ their child. He claimed the child was taken as she was preparing to sit her end-term examination.
He alleged that EW lured the girl with promise to buy her chips but instead put her in her car and drove to her house where she alleged to have forcefully made the child live.
On November 22, 2019, Limo ordered EW arrested for ‘kidnapping’ daughter after losing custody.
He ordered officers commanding Police Nakuru and Kiambu police stations to trace and arrest EW after refusing to surrender her daughter to court as directed on October 31, 2019. The court also committed EW to civil jail for contempt.
However, on December 20, 2019, Matheka stayed the ruling and ordered EW released from Nakuru GK Prisons.
She ordered a retrial before Limo, who ordered a children’s report before judgment.
The report dated February 2, 2020, by Salome Waithaka, the sub-county children officer stated that the minor demonstrated confidence and trust in her father.
“The father is capable of bringing the minor up without her mother’s support. He will avail the access to mother on supervision basis without interference with her education,” read the report.