The dispute involving a 10-year-old girl from Mwingi, Kitui County, heads back to court for review today (Wednesday) amid uproar and criticism by children's rights activists over the controversial ruling on her custody.
The girl's father has moved to court under a certificate of urgency seeking a review of the ruling granting his estranged wife full physical custody of the child, saying that the orders were contrary to the ascertainable wishes, best interests and welfare of the minor.
In a sworn affidavit, the father said he was apprehensive that unless the judgment is reviewed, the minor stands to suffer irreparable physical, psychological and mental torture, negating the best interests of the child.
"That despite my willingness to hand over the child to the mother in full compliance of the court's orders, the minor has refused to go with the plaintiff. I have numerously explained to her that I shall always be there for her but such persuasion has not borne fruit," the father's affidavit reads.
He pointed out that in the last court appearance, in the presence of the trial magistrate and in the full glare of the public, the child refused to be handed over to the mother by wailing and clinging desperately to him.
The father - a secondary school teacher - says he fears for the safety of the child and that every effort must be made to save the minor from further agony.
The girl captured national attention when a video circulated showing her crying loudly in apparent protest against the court's decision to transfer her from her father's care to her mother who has been absent for nine years.
The minor began crying as soon as the court translator read out the orders issued by Mwingi Principal Magistrate Mogire Onkoba that she should immediately be handed over to her mother, who had won the child custody case.
In the video, which the man wants to produce in court, the girl can be heard saying, "Niache, niache, sitaki kuenda na wewe. (Leave me alone, leave me alone, I do not want to go with you)".
The case pits a secondary school teacher and his estranged wife who moved to court seeking to reclaim the minor's custody from him after being separated for nine years.
The teacher says consequent to the delivery of the judgment, other new and important matters have come to light which, at the time of hearing and determination of the suit, he was unaware of and, worse still, he could not produce the evidence at the time the judgment was delivered.
Last week, drama unfolded as police officers in the courtroom and officers from the Children's Department moved to effect the orders even before the magistrate left the chambers, prompting the girl to tightly grab her father and start wailing loudly.
The father remained on his seat in the courtroom as his estranged wife attempted to grab the girl from him.
The matter was the last to be heard that day and a crowd started milling around after the court adjourned.
The minor wailed in protest in an apparent show of her determination to stick with her father who has brought her up since she was one-and-half-years old.
Following the child's protests, the mother had to flee the court precincts in utter embarrassment.
The case has put the Children's Department on the spot after it filed a questionable report in court, which trial magistrate Grace Kirugumi relied on in determining the dispute in favour of the mother.
Children's Officer Anthony Nzumbu recommended to court that the child be placed in police custody or at a children's home until the orders are obeyed.
According to documents filed in court, the child was born in February 2010 but her parents separated two years later and mother got married to another man. She has another child from the second marriage.
The woman, also a teacher who had been sacked for deserting duty, resurfaced in 2016 when the girl was seven years and already enrolled in school. She started demanding custody of the child which the husband opposed.
The matter ended up in court where she sued her former husband seeking full physical custody of the child. She called witnesses, including her relatives, to prove she was the mother of the child.
In his defence, the girl's father said that his estranged wife had proved irresponsible, inhuman and careless when she left the toddler in his care and went on to start another marriage.
He argued that the child needed her mother the most during her formative years and that she suffered psychological trauma.
"When she decided to quit our marriage, she abandoned the toddler at a day care facility in Sombe market in Kitui East and I had to travel from my work station, then in Waita in Mwingi, to go and rescue her," says the father's affidavit.
The father further told the court that for six years, from 2012 to 2018 when he remarried, he dutifully and singlehandedly took care of the child including providing all basic needs like food, clothing and shelter and also enrolled her in school and ensured she attended church every Sunday.
"All these years, I used to bathe her daily, ensure she is well fed, clothed and even medically attended to, duties her mother should have carried out had she not deserted the child," he said.
He said the mother never called or showed up to check on the girl for six years.
While ruling on the case, the magistrate said the court was guided by the best interests of the minor as required by provisions of the Children's Act.
The case has triggered debate on the provisions of the Act which grants custody of children below the age of 18 years to their mothers.