[2022] KEHC 12278 (KLR)

AAY v DJN (Civil Appeal E017 of 2022) [2022] KEHC 12278 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12278 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E017 of 2022

MA Odero, J

July 8, 2022

Between

AAY

Applicant

and

DJN

Respondent

Ruling

1. Before this court for determination is the Notice of Motion Application dated February 10, 2022 by which the Applicant AAY seeks the following orders-1. Spent2. That pending the hearing and determination of the filed Appeal, the respondent or his agents or representatives be restrained from taking the minor herein KJ out of jurisdiction of the court.3. In consequence of prayer 1 above, the minor’s passport be deposited in court pending the hearing and determination of the filed Appeal.4. That the costs of this application be provided for.”

2. The application was premised upon section 1A, 1B, 3A 63 (e) and Order 51 Rules 1 & 3, Order 42, Rules 1 & 2 of the Civil Procedure Rulesand all other enabling provisions of the law and was supported by the Applicant of even date sworn by the Applicant.

3. The Respondent DJN opposed the application through his Replying Affidavit dated March 7, 2022. The Application was canvassed by way of written submissions. The applicant filed the written submissions dated April 4, 2022 whilst the respondent relied upon his written submissions dated May 12, 2022.

Background 4. The parties herein are the parents of the minor KJ. They are both citizens of the Republic of South Sudan. The respondent holds dual citizen of South Sudan and Australia.

5. The couple were once married but their marriage was dissolved by the Rajaf ‘B’ Court (Bor Section) Juba in South Sudan. A copy of the Divorce certificate dated September 21, 2020 is annexed to the replying affidavit filed by the respondent (Annexture ‘DJN2’).

6. The same court granted custody of the Subject minor to the respondent. A copy of the custody order dated February 4, 2020 is also annexed to the respondent replying affidavit (Annexture DJN’3’).

7. The respondent stated that the two families organized a prayer session in South Sudan at which the applicant handed over the child to him. That the minor then travelled to Nairobi, Kenya with the respondent’s mother (the Childs paternal grandmother) for medical checkup.

8. While the child was in Nairobi, the applicant then filed a Plaint dated July 21, 2021 before the Children’s court in Milimani, seeking to be granted legal and actual custody of the child, maintenance of Kshs 50,000/- monthly from the Respondent and also seeking orders to restrain the Respondent from removing the child from Kenya.

9. On July 23, 2021 the Children’s court made interim orders restraining the respondent from leaving Kenya with the minor.

10. In opposing the application before the Nairobi Children’s Court, the respondent submitted that the same was ‘Res Judicata’ as issues concerning the custody of the child had already been decided by a court of competent jurisdiction in Juba, South Sudan. That the applicant was merely seeking to obtain from the courts in Kenya orders which she had failed to get in South Sudan.

11. The learned trial Magistrate Hon G.M. Gitonga heard the matter and delivered a Ruling on January 14, 2022. In that Ruling the court found that the courts in Kenya had no jurisdiction over the matter as both parties were nationals of South Sudan and vacated its earlier restraining order dated July 23, 2021.

12. Being aggrieved by the decision of the trial court the applicant filed a Memorandum of Appeal dated February 10, 2022. Contemporaneously with that Memorandum of Appeal, the applicant filed the current application.

13. As stated earlier the respondent opposed the Application.

Analysis and Determination 14. I have carefully considered the application before this court, the affidavit filed in reply as well as the written submissions filed by both parties. The main issue is whether the court ought to make orders restraining the respondent from taking the minor out of this courts jurisdiction.

15. The applicant submits that the minor was violently removed from her custody in Juba South Sudan and brought to live with the respondent’s mother in the Lavington Area of Nairobi. That since the minor currently resides in Kenya the trial court erred in finding that the Children’s court had no jurisdiction over the matter.

16. The applicant states that she is apprehensive that without any orders restraining him the respondent may at any time move the child out of the jurisdiction of the court. She also prays that the minor’s passport be deposited in court.

17. On his part the respondent reiterates that the question of custody of the minor was already determined by a court of competent jurisdiction in South Sudan. He states that the minor is currently living with his grandmother in Nairobi. That due to the restraining orders issued on June 23, 2021 the respondent was unable to take the child back to Juba thus he opted to enroll the child in school in Kenya. The Respondent avers that the applicant has been allowed access to the child in Nairobi.

18. The respondent submits that the current application has no merit as both he and the Childs mother reside and work in Juba, South Sudan.

19. It is not in dispute that the parties herein are of South Sudanese Nationality. The minor is therefore by default a citizen of South Sudan. It is also not disputed that there currently exists a custody order made in favour of the Respondent by a court in Juba South Sudan. A copy of said order made by Rajaf ‘B’ court (Bor Section) is annexed to the pleadings. Therefore as things stand the question of custody of the minor has already been settled.

20. The minor currently resides in Kenya with his paternal grandmother, and he attends school in Kenya. I find it very strange that the applicant who is the Childs biological mother and who herself lives and works in South Sudan would seek orders to have the child remain in Kenya. Would she not rather have her son in South Sudan where presumably she would be in a positon to see him more regularly? Why would the Childs mother be opposed to her son returning to South Sudan where she herself resides?

21. There is evidence that the applicant moved to challenge the custody orders granted in South Sudan by filing Civil Case No. 474 of 2021 which suit she later withdrew. The courts in Kenya do not have appellate jurisdiction over courts in the Republic of South Sudan. The applicant is at liberty to seek redress in the court in South Sudan. There is need to preserve jurisdictional integrity of courts in the East African region and to avoid the possibility of conflicting decisions from the different jurisdiction.

22. In any event, there has been no demonstration of any intention to move the child out of Kenya. The child currently lives in Nairobi and has been enrolled in a school in Kenya. Moreover, given that the respondent is currently the legal custodial parent he ought to be free to move with the child as he wishes save for any exceptional reasons.

23. It is manifest that the parties herein have been engaged in litigation regarding their marriage and the custody of the child since the year 2020 in South Sudan. Clearly, the applicant now wishes to continue said litigation in Kenya as the courts in South Sudan have not made orders favourable to her. Hence the request to prevent the removal of the child from Kenya.

24. Finally, I find no merit in the present application. I fail to see how the application serves the best interests of the Child. Accordingly, I dismiss in its entirety the Notice of Motion dated February 10, 2022. This being a family matter each side shall bear its own costs.

DATED IN NAIROBI THIS 8TH DAY OF JULY, 2022. …………………………………MAUREEN A. ODEROJUDGE