A Wajir magistrate court has allowed a foster mother to retain custody of a 10-year-old girl after a two-year legal dispute, despite DNA evidence linking her to another family.

Magistrate Francis Baraka Xavier ordered Ms Habiba Hassan to retain actual custody of the child named Baby Z, while granting her and claimant Ms Kadija Mustafa joint legal guardianship until the child turns 18 years.

The custody battle was far from ordinary, with the judgment recounting an alleged Sh100,000 bribe attempt, a failed bid to have the magistrate recuse himself, alleged threats to the Judicial Service Commission and accusations of online bullying and vilification of the court.

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The dispute began after the child, then aged about eight months, was found abandoned outside a house near Masjid Huda in Wajir on April 3, 2017.

The judgment says Chief Said Ahmed Malele heard the baby crying at about 11pm and found her lying outside his house.

He took her to Wajir police station the following morning, where PC Fardosa Yusuf received her, and the Children’s Office was contacted.

The child was taken to Wajir Referral Hospital because she was malnourished and in poor health, while officials began tracing her parents through local radio stations, chiefs and security agencies.

The search produced no leads in finding the parents or next of kin, and Wajir had no children’s rescue centre. Officials therefore placed the child with Ms Habiba after a foster care assessment.

The judgment says Ms Habiba, a businesswoman, had cared for the child continuously since 2017 and that Children’s Office officials supervised her welfare.

However, in 2024 Ms Kadija came forward claiming the child was her relative and sought custody. She said the child was the daughter of her late relative, Safia Mohamed Abdi, who she said had lost the baby years earlier.

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Her witnesses gave different accounts of when the child was allegedly lost or stolen. The court noted that no documentary evidence showed a missing child police report between 2017 and 2024.

Ms Kadija's evidence was that the family reported the matter to police, the chief and later the DCI, although the court found no documentary evidence supporting those reports or actions.

It said that Ms Kadija only showed up when the foster mother was formalising her relationship with the child.

“The only formal sign of concern from plaintiff was recorded in 2024, seven years after the child was abandoned. It is in this regard that paternalism kicks in to secure the welfare of the minor,” said the magistrate in the judgment dated August 14, 2026.

A birth certificate presented by Ms Kadija’s side was processed on June 18, 2024, years after the child was rescued.

The court also noted that a birth certificate for the child had been obtained by Ms Habiba in July 2017, while the certificate relied on by Ms Kadija’s side was processed on June 18, 2024.

DNA testing received by the court in September 2025 found the child was a biological sibling of two children under Ms Kadija’s care and a half-sibling of another tested person.

But the magistrate held that the DNA result from the Government Chemist did not establish entitlement to parental responsibility.

“The DNA results has no bearing in fulfilling parental responsibilities,” the court stated.

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The court also gave significant weight to the child’s wishes after interviewing her and later recalling her for another examination.

The girl identified Ms Habiba as her mother and Mohamed Malele as her father. She said Ms Habiba had taken her to school and provided for her needs.

The judgment records that she was “categorical that she did not want the plaintiff and that she cannot leave her mother Habiba Hassan.”

She told the court she wanted to remain with Ms Habiba, saying that “no matter what court says”, she would not stay with Ms Kadija.

The magistrate found Ms Habiba had fulfilled the child’s parental needs, including education, food, medication, religious guidance and care.

The judgment states that Ms Kadija had not demonstrated how she would meet those responsibilities. The court also noted that the man identified as the child’s biological father had not participated in the proceedings and could not be traced.

The court considered a social enquiry report in which the investigating officer said the child needed to retain her “sense of belonging”, but the magistrate disagreed with the report’s assessment of Ms Kadija’s ability to care for her.

In the investigating officer’s view, it was important for the minor to have her sense of belonging.

“Unfortunately, the report concludes that plaintiff has demonstrated her capacity to cater for the minor, this can not be farther from the truth and this court addressed this concern and to reiterate, the plaintiff did not demonstrate her ability and capacity to provide and fulfil the requirements in Section 31 of the Children Act,” said the court.

“On the other hand, the first defendant fully demonstrated her capacity. She equally filed documents to confirm fulfilment of these requirements.”

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The court consequently declined a permanent injunction sought against Ms Kadija but allowed Ms Habiba to make decisions on the child’s education, medical care and external welfare.

Ms Kadija and the child’s siblings were granted visitation rights, subject to the child’s best interests. The alleged biological father may approach the court for access and visitation after verification.

The judgment also records allegations concerning conduct during the proceedings. In September 2024, the court said a police officer sent by the plaintiff’s family attempted to give it Sh100,000.

“Court reported the matter to relevant authorities and reprimanded the police officer,” the magistrate recorded.

Ms Kadija’s lawyer also sought the magistrate’s recusal. The application was dismissed on October 4, 2024.

She then appealed, and the High Court ruled in March 2025 that there was no proof of bias, finding the allegation baseless and directing the case to continue.

The magistrate later referred to “the threats to Judicial Service Commission” and “numerous online bullying” when explaining why the child was recalled for another examination.

In addressing the conduct allegations, the magistrate wrote: “cases are won through facts and the law, the online bullying and vilification of court will never win cases.”

The court said the child’s welfare had to guide the outcome. It therefore appointed Ms Kadija and Ms Habiba as joint guardians, while leaving custody with Ms Habiba.

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jwangui@ke.nationmedia.com