[2014] KEHC 5467 (KLR)
The court found that although the best interests of the child are paramount, the right to a fair hearing under Article 50(1) of the Constitution must also be respected. The order granting leave to file an appeal out of time was made ex parte, denying the respondent an opportunity to be heard. To balance the...
Source-derived case information.
- Citation
- [2014] KEHC 5467 (KLR)
- Parties
- Applicant: A M; Respondent: T A Z
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 120 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Leave to Appeal Out of Time
- Outcome
- Application to set aside the order for leave to appeal out of time granted; application for leave to be heard inter partes.
- Judges
- EM Muriithi
- Legal Topics
- Child Custody, Extension of Time, Best Interests of Child, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A M
Applicant
T A Z
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Leave to Appeal Out of Time
Legal Issues
- 1 Whether the order granting leave to file an appeal out of time should be set aside for being made ex parte without hearing the respondent.
- 2 Whether the best interests of the child require the matter to be heard inter partes before extension of time is granted.
Ratio Decidendi
The court found that although the best interests of the child are paramount, the right to a fair hearing under Article 50(1) of the Constitution must also be respected. The order granting leave to file an appeal out of time was made ex parte, denying the respondent an opportunity to be heard. To balance the constitutional imperatives, the court held that the application for extension of time should be heard inter partes, ensuring both the welfare of the child and the respondent's right to be heard. The justice of the case required review of the earlier order to allow the respondent participation, and the application for leave to appeal out of time would be determined afresh by a...
Court Disposition
Application to set aside the order for leave to appeal out of time granted; application for leave to be heard inter partes.
Orders
- The respondent's notice of motion dated 16th July 2012 and filed on 15th February 2013 is granted.
- The application for leave to file appeal out of time dated 27th March 2012 shall be heard inter partes before a differently constituted court on a priority basis.
Full Case Text
Judgment text and source record
27 paragraphs
No. 36
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 120 OF 2012
IN THE MATTER OF: AN APPLICATION BY ASHWAG MBARAK TO FILE APPEAL OUT TIME
AND
IN THE MATTER OF: CHILDREN'S MAGISTRATE CASE NUMBER 49 OF 2012, AT MOMBASA AM VERSUS T A Z
A M …...................................................... APPLICANT/RESPONDENT
VERSUS
T A Z …..................................................... RESPONDENT/APPLICANT
RULING
On the 27th March 2012, the court granted leave to file an appeal out of time when it was demonstrated that the appellant was prevented by the delay in the supply of the certified copies of proceedings and judgment by the trial court delivered on the 13th January 2012 in the Mombasa Children Court Case No. 49 of 2011.
In granting the extension of time to file an appeal, the court considered the welfare of the child in accordance with the constitutional provisions that the welfare of a child is of paramount consideration in all proceedings. The trial court granted the custody of the female child aged 7 years at the time of the judgment to the respondent father against the general principle that children of tender age should be given to the mother.
By an application dated 16th July 2012 but filed in court on 15th February 2013, the respondent has sought the setting aside of the order of leave to file appeal out of time on the ground that the application for leave was granted ex parte without affording the respondent an opportunity to be heard, and counsel for the respondent has cited Article 50 of the Constitution in support thereof.
In opposing the application for setting aside counsel for the appellant has observed that the application was filed over one year after the order for leave to file the appeal was granted and indeed after an appeal Mombasa High Court Civil Appeal No. 63 of 2012 had been filed and admitted to hearing on 17th May 2012. Counsel emphasized the principle of the best interests of the child under section 88 of the Children Act and considered that the respondent would suffer no prejudice by admission of the appeal.
Article 53 (2) of the Constitution requires that the court gives the best interest of the child paramount consideration in any matter concerning the child, while Article 50 (1) of the Constitution guarantees fair hearing of disputes that may be resolved by application of law.
In balancing the parties’ interests in the matter under the respective constitutional provisions, and granting the necessary paramountcy to the obvious best interests of the child to a permanent home and final order as regards her custody, I consider that the justice of the case requires review of the court order of 27th March 2012 to enable the respondent to be heard on the issue of extension of the time to file an appeal and, in the interests of an expeditious disposal of the dispute, that the application for extension of time be heard inter partes on priority basis.
Accordingly, the respondent’s notice of motion dated 16th July 2012 and filed on 15th February 2013 is granted but on account of its matrimonial nature, there will be no orders as to costs of the application.
The application for leave to file appeal out of time dated 27th March 2012 shall be heard inter partes before the court differently constituted on a date to be fixed at the Registry on priority basis.
Dated, signed and delivered on the 5th May, 2014.
EDWARD M. MURIITHI
JUDGE
In the presence of: -
Mr. Mgupu for the Applicant
Miss. Akei for the Respondent
Miss Linda - Court Assistant