Woman tells of 8-year agony in child custody court battle

Ms Elizabeth Wangari Thuita, who has been separated from her child for more than eight years, is bitter with Kenya's justice system.
She says her pursuit for the custody of her eight-year-old daughter has seen go to hell and back.
Her decision to seek legal redress in 2012 has worked against her.
From threats to her life, jailing and separation from her child are some of the things that have been giving Ms Thuita, who hails from Kiambu, sleepless nights.
NO HELP
The love of her life whom she got married to in 2009 became the source of troubles and not even the judicial system, the women and children rights organisations or the children’s department have been able to help her.
After getting married to Mr Ephantus Maina, the couple was blessed with a baby girl, a child who is now at the centre of a vicious court battle over her custody.
Soon, differences emerged and the union was no longer tenable.
The couple parted ways in 2012 when the child was still a year-and-a-half old.
Ms Thuita went back to her parents’ home in Kikuyu with the child.
CHILD FALLS SICK
Six months later, the child fell sick and she had to involve her husband in her treatment.
“When he came, he took the child and threw me out of the vehicle and drove away. And that’s how the custody of my daughter slipped out of my hands,” said Ms Thuita.
In a bid to get her daughter back, she moved to court seeking orders to compel her estranged husband to return the child.
However, it turned out to be a case of disregard of court orders, change of magistrates and disappearance of court files with the matter having dragged on for close to a decade.
From the court documents, a resident magistrate in Kikuyu, C. Atieno, in 2012 had issued interim orders compelling Mr Maina to give the child back to her mother.
ORDERS DISOBEYED
But the orders, according to Ms Thuita, were disobeyed until the man was arrested through a court warrant.
He was later released under unclear circumstances before the matter was transferred from Kikuyu to Milimani Children’s Court in Nairobi.
An appeal at the High Court in 2014 saw Justice Luka Kimaru order that Ms Thuita be allowed to have the child on alternative weekends and part of the school holidays, an order which was also disobeyed after some time.
“It has always been after a long struggle that he would be reprimanded to allow me to see my daughter and thereafter he would hide her from me,” she said.
FILE DISAPPEARED
In 2014, her file mysteriously vanished into the thin air from the Milimani courthouse registry.
After efforts to look for the file proved futile, she decided to reconstruct a skeleton file which also went missing after a few mentions.
“We decided to reconstruct another second skeleton file, a process which took us at least three years,” she said.
After yearning to see her daughter for years, she decided to trace her to a school in Nakuru where she says she discovered that the child had been made to believe that she was a kidnapper.
“It was so painful to see my own child look at me with contempt. She had been made to believe that I am a kidnapper,” said the woman as she sobbed.
After explaining to her what had happened, the child refused to remain in the school and decided to go with her mother.
ARREST ORDERS
Ms Thuita’s husband filed another case in Nakuru which saw arrest orders issued against her.
On December 11, 2019, Resident Magistrate Benjamin Limo ordered that Ms Thuita be committed to a one-month civil jail for disobeying court orders.
“I was never given a chance to explain myself because I had no idea that there was a case in Nakuru. I was released after two weeks after I appealed the sentence,” she said.
Justice Teresia Matheka, while quashing the sentence on December 20, 2019, ordered that arrangements be made to allow the woman see her child pending the resolution of matter in the children’s court.
NO CONFIDENCE
Ms Thuita sought to have the Nakuru magistrate recuse himself from the matter saying she had no confidence in him.
She further sought to be allowed to act in person after her lawyers failed to assist her get the correct information from the court.
But in his ruling on February 20, 2020, the magistrate declined to recuse himself, saying that there was no sufficient evidence to prove bias by the court.
He ordered the matter to proceed even as the woman said she was not to be ready for the hearing.
Mr Maina’s lawyer, Motonya Onyancha, dismissed the woman’s claims saying the matter in Nairobi had been overtaken by events.
Mr Onyancha argued that the woman cannot hold the court hostage just because she disagreed with her lawyers.
The case is still pending in court.



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