A 10-year-old girl shocked a Mwingi court on Friday when she broke into tears soon after the magistrate ruled in favour of her mother in a child custody case.
The girl wailed in apparent protest against the court’s decision to transfer her from her father’s care, yet he reared her since her mother left when she was one-and-a-half years old.
She started crying as the court translator read Mwingi Principal Magistrate Mogire Onkoba’s judgment for her to immediately be handed over to her mother, who had won the case.
Trial magistrate Grace Kirugumi earlier heard the case and ruled in favour of the woman, but it was taken to Mr Onkoba as the child refused to leave her father’s care.
Drama ensued as police officers in the courtroom and officers from the Children’s Department took steps to effect Mr Onkoba’s order.
As they stepped forward before the magistrate left the chambers, the girl tightly held onto her father and cried.
The man, a secondary school teacher, remained on his seat as his estranged wife tried to pull their daughter away from him.
A crowd gathered as the events unfolded.
Unaware of issues raised in court during the hearing, residents were convinced that the child wanted to remain with her father.
The woman left the premises after the child, born in February 2010 and now in Grade Four, shunned her despite the orders.
At the risk of being arrested for being in contempt of court, the man travelled back home with the girl.
The woman moved to court to reclaim custody of the girl after eight years of being separated from her husband.
Court documents say that after the separation, she married another man and had another child. She was also a teacher but was sacked for deserting duty.
The woman resurfaced in 2016 and demanded custody of the child but the man refused to grant it.
She then sued her former husband, seeking the child’s full physical custody.
She lined up witnesses including her relatives to prove that she was the girl’s mother, and produced demand letters from the Federation of Women Lawyers (Fida) to the husband, dated July 5, 207 and August 30, 2017.
The woman also tabled a May 2, 2018 letter that the chief of Waita location wrote to his counterpart in Kitoo, seeking assistance in helping the woman reclaim her daughter.
In his defence, the man said his ex-wife proved irresponsible, inhumane and careless when she left the toddler in his care and got married again.
He noted that the child needed her mother, especially during the formative years, and that her absence caused her to suffer psychological trauma.
“When she decided to quit our marriage, she abandoned the toddler at a day care in Sombe market in Kitui East. I had to travel from my work station, then at Waita in Mwingi, to rescue her,” he said in an affidavit.
The man further told the court that from 2012 to 2018, when he remarried, he dutifully and singly took care of the child, providing all the basic needs, educating her and ensuring she went to church every Sunday.
“All these years, I bathed her daily, ensured she was well fed, clothed and even medically attended to her, duties her mother should have done had she not deserted the child,” he said.
He added that the woman never called or showed up to check on the girl in those six years.
The case has put the children’s department on the spot as it filed a questionable report in court, which magistrate Kirugumi relied on in the ruling.
The children’s officer’s report, which recommended that the mother be granted custody of the child, said they interviewed the minor several times and that she preferred to be reunited with her mother.
In the ruling, the magistrate said the court was guided by the child’s best interests as required by the Children’s Act.
Ms Kirugumi said that since the parents both remarried, she would grant them equal parental responsibility and the child’s custody to the mother as her father stayed with her for 10 years.
The unprecedented case, which now awaits judicial review by the High Court, may trigger debate on the provisions of the Children’s Act, which grants the custody of children below the age of 18 to their mother.