Court of Appeal grants ex-British detective custody of son

The Court of Appeal faulted the High Court for granting the mother custody of the minor. [iStockphoto]

A former Scotland Yard detective has won the legal battle against a Kenyan woman over the custody of their six-year-old son.

After a protracted legal battle, the Court of Appeal in Mombasa faulted the High Court for granting the mother custody of the minor even after it found her to have bad morals.

In a landmark ruling on February 23, 2024, Justice Jessie Lesiit, Vincent Odunga and Gatembu Kairu termed the High Court decision wrong because it found the mother to be of bad morals, violent and aggressive, one who did no regard for authority or the feelings of others.

"That was not the kind of person to give custody of a child, especially one of tender years. The minor is six years old, a critical age for the establishment of character, behaviour development, and social and psychological growth. It was important that at that age, he should get better influence and a stable environment, which his mother was incapable of providing," ruled the appellate judges

The three-judge-bench said the finding against the father was misguided since he retired from service as an international detective, and his status had since changed to a Class K, which gave him residence in Kenya.

The trio said the former detective had demonstrated to the court that he had procured a home for the child in Mtwapa and wasn't residing in the country on a tourist visa.

"...it is apparent that the (High Court) failed to consider critical evidence and facts presented before the court, in particular, the changed status of the (father), thus arriving at a wrong conclusion that he was not suitable... we find that the (High Court) was conflicted on which order to make in the case," ruled the Court of Appeal.

According to the court papers, the father (KBH) and mother (HMI) begot the minor in 2017. Five years later, the mother filed a case to stop the father from leaving the country with the child.

According to the suit papers, the duo's short love story was characterised by strife and conflict.

HMI asked the Children's Court in Tononoka, Mombasa, to grant her custody of the minor.

The mother also prayed to the court to order the man to give her monthly maintenance fee of Sh180,000, and an exclusion order from the father.

However, the father, on the other hand, filed a counterclaim accusing HMI of being in multiple relationships with other people, including a German man with whom she was in a legal marriage.

In February 2022, the Children's Court granted physical custody of the child to the father, faulting the mother's aggressive behaviour that included contempt of court.

However, the mother appealed against the verdict at the High Court in Mombasa, which granted her custody of the child, noting that it was a decision it arrived at with a "heavy heart" given her behaviour.

"She is a difficult litigant who believes that anybody who does not dance to her tune is biased... (She) has no respect for court orders nor court officers, including magistrates. To her, no court order is good unless it is in her favour... Her immoral behaviour of taking different men to the house was not building the moral character of the child," ruled the High Court.

The court said it was not appropriate to give actual custody of the minor to the father because he was an international detective working in Iraq and Afghanistan.

The court also observed that the former Scotland Yard detective visited Kenya four times a year on a tourist visa and therefore, would not adequately take care of the minor. He appealed the verdict.