Why Mother Has Sued Mombasa Magistrate Over Multi-Million Custody Case Of Her Children

A mother wants the High Court in Mombasa to stop a magistrate from reviewing the judgment she rendered on March 31, 2021, that gave custody of her three children to the estranged husband. RN wants Senior Resident Magistrate Lucy Sindani barred from presiding or issuing orders in regards to custody and maintenance of her three children. Through her lawyer Daniel Ngonze, RN wants the magistrate restrained from rendering any further decisions touching on their children’s multi-million education policy.

On June 30, 2021 the magistrate proceeded to direct RN to deposit Sh1,013,000 to the account of their children’s school being the education policy she withdrew before maturity. Sindani reviewed her judgment in regards to the education policy and unlimited access to the children. OMR (estranged husband) wanted RN to deposit the education policy in their children’s school account.

OMR accused RN of terminating the education policy before maturity and withdrawing the funds thereby jeopardizing their children’s education. OMR said the wife forfeited Sh199,000 almost equivalent to fees for their children’s one academic year.

“The education of the children herein is expensive and the policy payment measures taken were to help cushion the parties in those future dates and thus the same was not factored herein,” said OMR in his motion seeking review of the judgment.

RN however said she was the one who had been paying for the education policy single-handedly.

“The orders by the magistrate are an absurdity in law as the insurance company with which the subject policy was held has expressly indicated me as the sole policy-holder after I surrendered it on April 26 2021 and therefore paid the surrender value,” said RN in her affidavit filed in the High Court.

In her ruling, Sindani said OMR’ plea to have the education policy deposited in the children’s school account was in their best interest.

“I find OMR’s plea to be in the best interest of the children and although it was not properly brought out during the trial, I find the matter important in the best interest of the children. I, therefore, find it fit that the educational policy money once mature should be channeled to the rightful intended purpose,” said Sindani.

The magistrate also said the review to allow unlimited access of the children to both RN and OR will not prejudice the appeal and will avoid commotions between the parties.

In her application, RN wants Family Division Judge, Justice John Onyiego to stop the magistrate from reopening and re-litigating the case.

RN said despite a pending appeal lodged on April 9 2021 challenging the judgment, the magistrate summarily evaluated new evidence presented by OMR.

She sued the magistrate and OMR for irregularly and unprocedural engaging in merit-based re-evaluation proceedings on her own final judgment.

Ngonze said the magistrate blatantly disregarded orders to release the court file to the High Court as ordered on April 29, 2021, for the purpose of the appeal against her judgment dated March 31, 2021.

“The magistrate has simply gone rogue, irredeemably descended into the arena of litigation and continues to issue ex-parte orders after delivery of her final judgment, despite the existence of the instant proceedings challenging her exercise of jurisdiction ultra vires her mandate,” said Ngonze.

The lawyer also wants the High Court to quash the magistrate’s decision directing RN to deposit the said funds in the school account of the minors.

However, Sindani said section 101 of the children’s Act gives her wide discretion to review matters regarding maintenance and custody as long as it deems fit and in the best interest of the children.

She said the children were still growing and the court cannot become functus officio in children matters when their needs change from time to time and they still need the court to follow up on the same.

“It is therefore not correct to say in children cases that the court becomes a functus officio once it delivers its judgment,” said Sindani.

RN had filed a suit before the Children’s Court in 2020 seeking to exclude OMR from the matrimonial property, maintenance, and custody of their children.

She told the magistrate that OMR became violent, forcing her to abandon the three children because she had nowhere to go with them.

RN said she had rented a house and sought to be given custody of the children and prayed for maintenance. She agreed to cater to the children’s other needs while OMR catered for education.

OMR denied the allegations and said RN moved out on her own volition and she was the one who abused alcohol and drugs and left children alone in the house while she went to parties.

He prayed to retain custody of the children, the matrimonial house since the children had lived there since 2014.

In her judgment dated March 30, 2021, Sindani directed the children to stay with OMR in the matrimonial house and RN to have unlimited access to the children as long as the access doesn’t disrupt the children’s educational calendar and programs. She also apportioned parental responsibility equally between the parties at 50:50 ration.