[2014] KEHC 1398 (KLR)
The court held that it could not review the access orders made in the judgment of 18th October 2012 via a post-judgment application, as the decree had already been made absolute and there were no new orders made on 25th February 2013 to review. The court further determined that disputes regarding custody and access...
Source-derived case information.
- Citation
- [2014] KEHC 1398 (KLR)
- Parties
- Petitioner: A W K; Respondent: N N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 47 of 2011
- Procedural Posture
- Divorce Cause / Post Judgment Application for Review and Restraining Orders
- Outcome
- Application dismissed with directions; all future custody and access disputes to be determined by the Children’s Court; no order as to costs.
- Judges
- DN Musyoka
- Legal Topics
- Child Custody, Access Rights, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A W K
Petitioner
N N
Respondent
Procedural Posture
Divorce Cause / Post Judgment Application for Review and Restraining Orders
Legal Issues
- 1 Whether the High Court can review access orders regarding the child after the divorce decree has been made absolute.
- 2 Whether restraining orders against the respondent regarding exposure of the child to a third party can be granted in a post-judgment divorce application.
- 3 Whether disputes concerning custody and access to the child should be determined by the Children’s Court.
Ratio Decidendi
The court held that it could not review the access orders made in the judgment of 18th October 2012 via a post-judgment application, as the decree had already been made absolute and there were no new orders made on 25th February 2013 to review. The court further determined that disputes regarding custody and access to the child, especially those involving third parties such as the biological father, fall within the jurisdiction of the Children’s Court established under the Children Act. The High Court exercised its inherent powers to clarify that any future disputes relating to custody and access to the child should be placed before the Children’s Court for determination. The application...
Court Disposition
Application dismissed with directions; all future custody and access disputes to be determined by the Children’s Court; no order as to costs.
Orders
- Any disputes relating to custody of and access to the child shall be placed before the Children’s Court for determination.
- All matters touching on the subject child shall henceforth be placed before the Children’s Court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 47 OF 2011
BETWEEN
A W K……..…….....…................................................................PETITIONER
AND
N N……………….…………..…..............................................RESPONDENT
RULING
1. The divorce proceedings herein terminated on 18th October 2012, when the marriage between the parties was dissolved. Custody of the child of the marriage was granted to the petitioner with the respondent being given access to the child on terms to be agreed between the parties. The formal decree was extracted on 25th February 2013. Decree nisi was made absolute on 30th June 2014.
2. On 25th June 2013, the petitioner filed a motion dated 24th June 2013 principally seeking review of the orders made herein on 25th February 2013 on access of the child by the petitioner so as to embrace the concept that he calls “the child of the family.”He also seeks orders to restrain the respondent from exposing the child to his biological father pending determination of the application. He also seeks that two children’s cases filed on the child at the Children’s Court be stayed.
3. The decree of 18th October 2012 had granted access to the child by the petitioner on terms to be agreed. It would appear that the parties did not agree on terms of access and instead resorted to filing cases on the matter at the Children’s Court.
4. It must be stated in the outset that the court did not make any orders on 25th February 2013. The access orders were made on 18th October 2012 in the judgment of the court. 25th February 2013 is the date when the decree was formally extracted. As it is therefore there is nothing for me to review as there were no orders made on 25th February 2013. What the petitioner should have done is to seek review of the judgment of 18th October 2012 to the extent of the access orders.
5. The Motion dated 24th June 2013 prays for restraining orders against the respondent with respect to exposing the child to a third party who was not party to the divorce proceedings nor named as a party in the Motion. It is not surprising that the said third party moved the court on 18th November 2013 to be joined as a party. The application was allowed by consent and the said party filed a reply to the Motion asking to be allowed access to the child.
To my mind this is untidy, the principal suit terminated on 18th October 2012 when the decree pronouncing the dissolution dissolved of the marriage was made. The Motion before me is a post – judgment application. There is nothing substantive pending to warrant joinder of a party to the proceedings. The involvement of parties in the dispute, other than the petitioner and respondent is indicative of the fact that the matters before me ought to be dealt with elsewhere in a substantive suit focusing specifically on the matters raised, where the third party can be brought in as either a co-plaintiff or co-defendant.
6. The matters raised in the Motion as they relate to issues of children born within wedlock but out of an adulterous liaison – specifically on the rights of the biological father of such a child – are novel, and are not suitable for determination in a post-judgment application in a divorce cause. Ideally, this is a matter that should have come up during the hearing of the divorce cause, in proceedings where the biological father had been named as a party.
7. The marriage legislation does not exhaustively deal with children’s issues. The legislation enacted to deal effectively with these matters is the Children Act, which establishes the Children’s Court and confers it with jurisdiction on children’s matter. The matters raised in the Motion dated 24th June 2014 should be placed before that court.
8. I shall review the judgment dated 8th October 2012 in exercise of inherent powers, to add the order that any disputes arising relating to custody of and access to the child the subject of the judgement shall be placed before the Children’s Court for determination. Indeed, all matters touching on the subject child shall henceforth be placed before the Children’s Court.
9. The application dated 24th June 2014 is hereby disposed of in those terms. There shall be no order as costs.
DATED, SIGNED and DELIVERED at NAIROBI this 28th DAY OF November 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Nyaga advocate of the petitioner.
In the presence of Mr. Kimotho for Mr. Chuigiti advocate for the respondent.
Mr. Mwenda for Mr. Machio of interested party.