Mystery of two minors in custody row who prefer father to mother

Two minors at the centre of a child custody dispute risk having their father arrested and jailed should he fail to obey a court order issued last week.

High Court judge Heston Nyaga last week ordered the father of the two – GLS (13) and DKS ( 9) – to hand over the physical custody of one of the minors to their mother.

The father of the two and their mother have been embroiled in a bitter custody dispute since 2016.

The man has until tomorrow to hand over  the nine-year-old failure to which warrants of arrest shall be issued against him.

“The respondent (father) is to hand over the physical custody of DKS to the applicant (mother) with immediate effect and not later than April 2, 2024, failing which warrants of arrest will be issued against the respondent to be brought to court for further orders,” ruled Justice Nyaga. 

The court noted that the mother of the minors was denied access to GLS over the last school holiday and directed that he should be handed over alongside DKS and returned to his father on or before April 21, 2024.

The judge, while issuing the directions, noted that it was apparent that the younger child, DKS, was not handed over to the woman despite an order by the court.

The man had, however, explained that he was unable to comply with the orders as there were no modalities given on how he was to hand over the said subject and admitted that he had enrolled him in a school in Kajiado County, where GLS also attends.

The judge noted that the man may have meant well for the minor, but he ought to have acknowledged the fact that there were orders issued by the court that have not been stayed nor set aside.

Justice Nyaga said the man had the duty to ensure that the children were handed over to their mother for access during the school holiday.

“So, although he appears to mean well for the children, he is evidently in breach of the orders of the court. In my opinion, the conduct of the respondent cannot be accepted. He got access to DKS courtesy of the same orders he now thinks were ambiguous. Surely, can he be allowed to have his cake and eat it? Not at all,” ruled the court.

The judge said though JS’s conduct appeared well meant, it would set a bad precedent, where a party can hide behind a non-existent ambiguity to defy a clear court order.

DKS ended up in the custody of the father in 2022 when the mother failed to turn up in Nakuru at a pick-up point, forcing the father to go back with him after engaging a children officer.

Catherine Kanyua, on behalf of County Coordinator Children’s Services Nakuru in the October 31, 2022, report confirmed that the man returned DKS at the usual picking point in Nakuru.

The report indicated that calls to the mother were futile as she refused to co-operate and said the child should not be taken to his grandmother’s home near Bismark.

“The grandmother, who I also, called was very hostile and declared that the child should not be taken to her homestead and that she is sick and should not be given the responsibility of taking care of the child,” read the report.

The children’s officer said in consultation with the county children’s officer decided to let the father go back with his son around 5:20pm having negotiated with the grandmother and her daughter for more than one and a half hours.

Even with the directive by the court, several reports indicate that the two minors prefer being with their father.

A children’s officer’s report dated August 18, 2023, indicates that they were unwilling to remain with their mother.

The report, however, indicates that the young boy agreed to go with the mother following some promises that the mother made to him.

A September 8, 2023, report filed in court and signed by Alice Wanyonyi, the county children’s coordinator, Nakuru, indicated that DKS, who at the time was at school in Nakuru, kept mentioning he wanted to return to his father and re-join GLS so that they can stay together.

Nakuru County Children’s Coordinator Alice Wanyonyi, in the report filed in court on September 11, 2023, said the minor told her that he was missing his brother and wished to rejoin him.

The children’s officer recommended that DKS be interviewed by the court to confirm their preference and if he insists on returning to the dad, so be it.

A December 21, 2023, report from the children’s office indicates that the minors were taken by their father to be picked up by their mother but they refused to go with her.

GLS, in December 2023, said he was not ready to go with the mother. He said the mother was not providing and was absent most of the time.

“When they are with the father, they are able to interact and play with their friends, he provides them with all sports facilities. He also said their mother does not fulfill her promises to them but their father does provide and fulfills promises. He said his mother provides for the younger sister than them. He said all these in tears,” read the report in part. 

The report signed by Beldine Opany for the county children’s coordinator indicated that DLS, on the said date, refused to come out of the car even after being persuaded by his father.