Summary of the supreme court of kenya judgement in petition no 2 of 2022 mak v rmaa
Background
The Appellant and 1st Respondent got married under the African Christian Marriage and Divorce Act and were blessed with a son. The Marriage between the appellant and 1st respondent broke down and the appellant petitioned for divorce which as consequently granted. To cater for the needs of the child, the parents entered into a Parental Rights Agreement (PRA) for the maintenance of the child that granted them both joint legal custody of the child with each parent catering for different needs of the child.
Six years later, with the consent of the 1st respondent, the appellant moved with the minor from Kenya to York in the United Kingdom, to pursue her master’s degree. It was in the UK when strife showed in the parent’s relationship where the appellant applied for a Child Arrangement Order that the child would live with her. The 1st respondent cross applied for a Child Arrangement Order that the child would live with him on allegation of abuse. He also applied for orders seeking to prohibit the appellant from removing the child from the jurisdiction of England and Wales. The English Court recorded that the appellant had on at least one occasion hit her son causing him physical harm. The failed to attend two hearings in respect of the criminal charges and a warrant had been issued for her arrest.
Meanwhile the appellant, filed an Application seeking for the PRA to be adopted as an order of the court. The High court in Kenya granted the order, however by this time,1st respondent had moved from the United Kingdom and was now residing in Tanzania, while the child was still in boarding school in the United Kingdom. The court in Tanzania declined to enforce the order of the Kenyan court.
Proceedings in the high court
The appellant instituted proceedings at the High Court invoking articles 27, 28, 29, 43, 45, and 53 of the constitution. However, the proceedings in the English court were still ongoing. In its judgement, the court in England determined that the child be maintained as a ward of the court. It directed court directed that no important steps in the minor’s life, including travel, consent to medical treatment or education, would be taken without permission being granted by the court until he attained the age of eighteen (18) years. The English court pointed out that the PRA signed in Kenya was no longer reflective of the minor’s legal or factual position. In addition, the appellant was prohibited from directly contacting the minor without the 1st respondent’s consent.
Issues
The High Court found that the main issue for determination related to custody, upbringing and welfare of the child under article 53(2) of the Constitution as read with sections 4(3) and 4(4) of the Children’s Act 2001 (now repealed).
In her Petition, the appellant alleged that the 1st Respondent had violated the child’s rights to compulsory basic education, basic nutrition, shelter, healthcare, protection from abuse and inhuman treatment, parental care and protection as guaranteed by article 53 of the Constitution.
In his response, the 1st respondent averred that the appellant was cruel and excessively abusive towards the minor resulting in child cruelty charges being leveled against her in the United Kingdom. To that effect he produced the proceedings of the Family Court in the UK where the court had noted that criminal charges of child cruelty by the appellant had been lodged.
In delivering its judgement, the High Court in Nairobi relied on the proceedings, orders and judgment delivered by the (English court). The English court has been convinced that the held that the appellant had physically and emotionally abused the minor and therefore she was not a fit parent to bring up the minor. The court also found that the appellant had lost the right to actual custody provided for in the parental agreement when she assaulted the child. The learned Judge for those reasons dismissed the petition and made a finding that the 1st respondent had not infringed or violated any of the appellant’s fundamental rights and freedoms by not honoring the PRA and that it was not applicable.
Proceeding in the court of appeal.
Dissatisfied with the decision of the High Court, the appellant lodged an appeal at the COA. The Court found that the main issue on the appeal was whether the PRA between the appellant and 1st respondent was applicable, effective, and binding.
The Court affirmed the High Court’s judgment. It noted that the PRA was no longer applicable as fundamental changes had occurred in the lives of the parties since the recording of the PRA. The court held that the foreign court had found that the assault accusation was true and that such finding was critical in determining the matter.
Further, the Appellate Court considered the wishes of the child and held that the child had made an unequivocal expression that he did not wish to be with the mother. Ultimately, in dismissing the appeal, the Court of Appeal was of the view that in the absence of evidence establishing want of competence or jurisdiction on the part of the foreign court in arriving at its determination of the matter, the learned High Court Judge could not be faulted in his conclusions that the PRA was inapplicable to the parties.
Proceedings before the supreme court.
Again, dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court. The court listed the following issues for determination:
- Whether this court has jurisdiction under article 163 (4) (a) of the Constitution to hear and determine this appeal?
- Whether the High Court and Court of Appeal properly applied the decisions issued by the Family Court in the United Kingdom in arriving at their determination?
- What is the status of the PRA?
- Whether parental rights and responsibilities could be extinguished in this case?
In regards to jurisdiction, the court stated that the matters before it were in regard to the enforcement of parental rights vis a vis children’s rights and the best interest of the child pursuant to article 53 of the Constitution. It was also in regard to the right to be heard as the Appellant claimed that she had been condemned as an unfit mother unheard. These facts bring the matter under the jurisdiction of the Supreme Court Article 163 (4) (a) of the Constitution.
In regards to the second issue, the Supreme Court stated that it was evident that the HC and COA relied on the English Court’s decision. This is in spite of the fact that he English Court did not consider the significance of the PRA and the consequences of its violation. The Supreme Court faulted the learned judges of the High Court and Court of Appeal’s decision to place credence on the findings of the English Court which largely disregarded the PRA.; an agreement that could not be violated without consequence. The court insisted that the PRA could only be terminated by the High Court and not a foreign court.
In regards to issue three, The SC stated that it was of the view that the English Court made orders on the PRA that disregarded the sovereignty of the Kenyan legal system over its own nationals. The SC stated that the superior courts erred by accepting and relying on the English Court’s decision on the PRA. The court should have considered Section 26 of the Children’s Act and Article 53 of the Constitution regarding the best interests of the child. Section 26 provides for parental responsibility agreements which agreements can only be vitiated like any other contract. The SC reiterated that the trial court ought to have heard the parties to the PRA before invalidating it and therefore the English Court orders do not supersede the PRA.
On the final issue, the court stated that the record did not provide cogent evidence of the English Court balancing between parental rights and the best interest of the child. Neither the English Court nor the parties considered it necessary to determine each of the allegations made by the child or the 1st respondent in order to satisfy the court that the mother had physically harmed the child. This led to the finding that the appellant was an unfit mother without highlighting which legal standards were applied to arrive at this conclusion. This is particularly worsened by the fact that the superior courts did not test this evidence and no warrant of arrest is on record despite the fact that the appellant produced two medical reports on the child as testimony which revealed that there was no indication of any form of abuse against the child. The court stated that the appellant’s right to fair trial was violated as the superior courts erred by not considering and testing the evidence tendered before them by the 1st respondent on the allegations of abuse.
The SC emphasized that the Appellate court erred in endorsing the High Court decision which purported to extinguish the appellant’s parental rights and responsibilities. The court reiterated that he child has a right to parental care and it is in the best interest of the child that he is brought up and cared for by his or her parent. This right can only be denied if it is proved with cogent evidence and valid grounds that a parent is not suitable or is incapable of taking care of the child. Ultimately, therefore, a child needs both of their parents which is their right, especially where a parent’s incapacity has not been proven such as in this case. The court insisted that parental rights do not trump the best interests of the child however, they cannot be ignored if they are in the best interests of the child.
The court reiterated that when making a decision that will impact the child, courts are mandated to consider all circumstances affecting the child. It therefore set guidelines that are necessary and ought to be considered when balancing a child’s best interests and parental rights and responsibility as follows:
- The existence of a PRA between the parties
- The past performance of each parent.
- Each parent’s presence including his or her ability to guide the child and provide for the child’s overall well-being
- The ascertainable wishes of a child who is capable of giving / expressing his /her opinion.
- The financial status of each parent
- The individual needs of each child.
- The quality of the available home environment.
- Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted
- Need to ensure that children are not placed in alternative care unnecessarily.
- The mental health of the parents
- The totality of the circumstances.
The Court therefore allowed the appeal and set aside the judgement of the court of Appeal.
Conclusion
This decision emphasized the parental obligations and rights. The court emphasized that both parents have a responsibility to the child. It also insisted that when considering matters to do with custody and maintenance, the best interest of the child should always be the first consideration irrespective of the marital status of the parents.
Date: April 21, 2023 By: Anne Gathirwa
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com . You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke