[2004] KEHC 2605 (KLR)

B v Attorney General (Miscellaneous Civil Application 1609 of 2003) [2004] KEHC 2605 (KLR) (Civ) (23 April 2004) (Ruling)

B v Attorney General [2004] eKLR

Neutral citation: [2004] KEHC 2605 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 1609 of 2003

JB Ojwang, J

April 23, 2004

Between

B

Applicant

and

Attorney General

Respondent

The non-issuance of rules in respect of section 22(3) of the Children Act, 2001 cannot compromise the jurisdiction of the High Court to resolve disputes relating to rights claims under the Act

The applicant sought an injunction restraining the defendant from executing a deportation order issued by the Minister of State in the Office of the President for the deportation of one SPL (a minor) pending the hearing and determination of the substantive application. The court held that the non-issuance of rules in respect of section 22(3) of the Children Act, 2001 could not compromise the jurisdiction of the High Court to resolve disputes relating to rights claims under the Act.

Reported by Kakai Toili

Jurisdiction– jurisdiction of the High Court – jurisdiction to resolve disputes relating to claims under the Children Act, 2001 - whether the non-issuance of rules in respect of section 22(3) of the Children Act, 2001 compromised the jurisdiction of the High Court to resolve disputes relating to claims under the Act - Children Act, 2001, section 22(3).Civil Practice and Procedure– orders - injunctions - whether injunctive relief could issue against the Government to protect the rights of a child - Children Act, 2001, section 22(2).Civil Practice and Procedure- preliminary objections – nature of preliminary objections - what constituted a preliminary objection.

Brief facts The applicant filed an originating summons on December 19, 2003, she also filed an interlocutory chamber summons. The principal prayer in the originating summons was that an injunction do issue restraining the defendant by himself, his servants or otherwise howsoever from executing the contents of a deportation order issued by the Minister of State in the Office of the President on or about September 11, 2001, for the deportation of one SPL (a minor) pending the hearing and determination of the substantive application. When the chamber summons application came up for hearing the respondent rose on a point of preliminary objection arguing that under Kenyan Law, the court lacked jurisdiction to grant an injunctive relief against the Attorney General.

Issues

Whether the non-issuance of rules in respect of section 22(3) of the Children Act, 2001 compromised the jurisdiction of the High Court to resolve disputes relating to claims under the Act.

Whether injunctive relief could issue against the Government to protect the rights of a child.

What constituted a preliminary objection?

Held

An interlocutory application would normally come within the ambit of a large motion, which itself took the form of a plaint, but could also take the form of an originating summons.

Once a court was satisfied that an applicant had obtained an order by concealing other relevant material, the court was entitled not to consider the applicant’s application any further for the courts must be able to protect themselves from parties who were prepared to deceive.

A preliminary objection should be founded on pure points of law and should be truly prefatory and preparatory to the issues of substance in the claim in question. Such an objection may also touch on uncontested facts, on the basis of which a decision by the court would dispose of the whole matter coming before it in limine.

The High Court had jurisdiction to entertain any complaint turning in the rights of the child as set out in the Children Act, 2001.

The non-issuance of rules in respect of section 22(3) of the Children Act, 2001 could not compromise the jurisdiction of the High Court to resolve disputes relating to rights claims under the Act. To doubt that position would be to subscribe to questionable jurisprudence which hold that, in the absence of subsidiary legislation made by the Chief Justice in an administrative capacity, then all the child rights stipulated in sections 4 -19 of the Children Act were a nullity.

Injunctive relief may be made against Government officials in a proper case.

The Attorney General’s office was the State Law Office, a core instrumentality of the process of legality in the conduct of governance in the Republic of Kenya. Not only was the office expected and required to assist the courts in upholding the supremacy of the law in Kenya it was required to advise all departments of Government and all ministers competently, efficiently and in good faith, on the correct path of decision making in compliance with the law of the land.

To deport a child who had been made a ward of the court was a breach of the child’s rights. Any deportation effected in those circumstances was a contempt of the court.

The court did not and ought not to be seen to make orders in vain. That would expose the court to ridicule and no agency of the constitutional order would be left in place to serve as a guarantee for legality and for the rights of all people.

Application allowed.

Citations

1. OPL v MB Civil Appeal No 97 of 1999 2. Uhuru Highway Development Ltd v Central Bank of Kenya and two others Civil Appeal No 36 of 1996 3. Royal Media v Telkom Kenya [2001] 1 EA 210 4. Jaundoo v Attorney General of Guyana [1971] AC 972; [1971] 3 WLR 13; 115 SJ 445 Texts 1. Cairns, WB; McKeon, R (1997) A Source Book on French Law London: Cavendish Publishing, 2nd Edn p 176 2. Brown, LN; Garner, JF (1973) French Administrative Law London: Butterworths & Co, 2nd Ed p 121 Statutes 1. Children Act, 2001 (No 8 of 2001) 2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rule 1, 2, 3, 3. High Court (Practice and Procedure) Rules (cap 8 Sub Leg) 4. Civil Procedure Act (cap 21) section 3A 5. Immigration Act (cap 172) section 17 6. Government Proceedings Act (cap 40) 7. Constitution of Kenya section 84 8. Guardianship of Infants Act (cap 144) repealed by A8/01 9. Judicature Act (cap 8) 10. Immigration Regulations (cap 172 Sub Leg) part IVInternational Statutes United Nations Convention on the Rights of the Child 1990

Ruling

April 23, 2004, Ojwang Ag J delivered the following Ruling. 1. The dispute which is the subject of the present application is an old one, going back to the 1998/99 period. But the issues falling for the decision of the court have a more recent background. Ms MB filed an originating summons which was drawn on the same day of filing, on December 19, 2003. While using this application to originate her case, she also, at the same time, sought interim relief by way of an interlocutory chamber summons.

2. The prayers in the originating summons application were as follows:(i) that the matter be heard ex-parte in the first instance;(ii) that an injunction do issue restraining the defendant by himself, his servants or otherwise howsoever from executing the content of a deportation order issued by the Minister of State in the Office of the President on or about the 11th of September, 2001 for the deportation of SPL;(iii) that a declaration do issue that the deportation order issued by the Minister of State in the Office of the President on or about the September 11, 2001 during the subsistence of a wardship order in respect of SPL granted by the High Court on August 12, 1998 was illegal and is a threat to the rights of the child to the protection of the law and was an act in violation of the best interest of the child.

3. Against the background of the originating summons, the applicant promptly filed a chamber summons application, by virtue of order XXXIX rules 1,2,3,5, of the Civil Procedure Rules, sections 4(3) and 18 of the Children Act (No 8 of 2001), rules 3(a), 3(2) and Part 1 of the High Court Practice and Procedure Rules, and section 3A of the Civil Procedure Act. She prayed for orders as follows:-(i) that this application be certified urgent and service thereof be dispensed with in the first instance;(ii) that leave be granted for this application to be heard during the court vacation;(iii) that a temporary injunction do issue restraining the respondent by himself, his agents, servants or otherwise whosoever from executing the content of the deportation order issued by the Minister of State in the Office of the President on or about the September 11, 2001 for the deportation of SPL pending the hearing and determination of the substantive application;(iv) that the costs of this application be provided for.

4. A summary of the grounds for the chamber summons application was given as follows:(a) due to a technicality, a judicial review application in Misc Application No 1080 of 2001, challenging the said acts of the Minister, was struck out, thus leaving the child, SPL, without any legal protection against orders made by the Minister in the Office of the President;(b) the respondent’s deportation order issued on or about September 11, 2001 is unlawful and contravenes the tenets of natural justice;(c) there is a real and imminent danger that the respondent, unless restrained by the court, will proceed to execute the said deportation order in violation of the law, of the order of the court made on August 12, 1998 which made SPL and his siblings wards of the court, and of the rights of the said children to the protection of the law;(d) it is in the interest of justice that the defendant be restrained from executing the said deportation order pending the hearing and determination of the suit.

5. The chamber summons application was further supported by the affidavit of the applicant. The critical details of this affidavit may be set out as follows:-(i) the applicant is the mother of three children - CSL; JPL and SPL;(ii) on August 12, 1998 Mr Justice Oguk made an order in High Court Miscellaneous Suit No 910 of 1998 (OS) that CSL; JPL and SPL were placed under the protection of the Court;(iii) the said order made on August 12, 1998 was subsequently confirmed by the Court of Appeal, in Civil Appeal No 97 of 1999;(iv) on September 11, 2001 CSL was taken from Tigini Girls School by immigration officials accompanied by police officers, pursuant to a deportation order issued by the Minister of State in the Office of the President;(v) on September 11, 2001 JPL was taken from Greensteds School by immigration officials accompanied by police officers pursuant to a deportation order issued by the Minister of State in the Office of the President;(vi) on September 11, 2001 SPL was being taken from Peponi House Preparatory School by immigration officials accompanied by police officers, pursuant to a deportation order issued by the Minister of State in the Office of the President; but the applicant took custody of the child;(vii) the children who were thus taken by immigration officials ; were subsequently ordered to record statements without legal advice and in the absence of the applicant; and subsequently, both CSL and JPL were deported and are now in Belgium;(viii) the applicant currently has the custody of SPL;(ix) at all materials times, the Immigration Department was well aware that there was a custody dispute in respect of the children in question, and this had taken the form of High Court Miscellaneous Suit No 910 of 1998 (OS); and they were also well aware that the three children in question were wards of the court;(x) the applicant has in no way contravened the provisions of the Immigration Act (cap 172) and the regulations made thereunder;(xi) the said three children were at all material times in possession of valid dependants’ passes issued under Part IV of the Immigration Rules made pursuant to section 17 of the Immigration Act (cap 172);(xii) the said deportation order issued by the Minister of State in the Office of the President was issued without any notice or service to the applicant as the mother and custodian of the said children;(xiii) the deponent believes that the Minister of State in the Office of the President had no right to cause the removal of the said children from her custody without the leave of the High Court;(xiv) the judicial review application in Miscellaneous Application No 1080 of 2001 challenging the acts of the Minister of State in the Office of the President, was struck out on a technicality on December 19, 2003 leaving the child, SPL, without any legal protection whatsoever from such orders as might issue from the Minister of State in the Office of the President;(xv) the deponent apprehends that the Government may at any time take steps to deport her child, SPL, from Kenya;(xvi) the deponent believes that the actions of the Government in deporting her children, and in threatening to deport the one child still remaining, are in contravention of sections 4 and 18 of the Children Act, 2001;(xvii) the deponent believes it would be in the best interests of the child, SPL, that the Government of the Republic of Kenya be restrained from removing or in any way assisting any person to remove the child from the court’s jurisdiction.

6. This application first came before me ex parte, within the framework of the Court’s Vacation Rules, on 2December 2, 2003. Mr Majanja for the applicant made a formal presentation of the Chamber Summons application with its supporting affidavit. Counsel submitted that the threat to deport SPL was real, as his siblings who like him had been wards of court, had already been deported without any hearing accorded to the applicant as mother and custodian of the children. Mr Majanja submitted that if the child were deported, this would be a violation of the child’s rights to liberty, as well as an infringement of court orders already made. Counsel invoked sections 4 and 18 of the Children Act (No 8 of 2001) which guarantee the liberty of children, and place a duty on the courts of law to act in the best interests of the child.

7. After hearing the application, which, I believe, was genuinely an urgent one and was properly heard ex parte, I made a ruling as follows: “Upon reading the chamber summons application dated December 19, 2003 and filed on the same date; “Upon reading the grounds given to support the chamber summons application;“Upon reading the supporting affidavit sworn by MB; “Upon hearing the submissions of counsel for the applicant ex parte;It is ordered -1. That this application be and is hereby certified urgent.

2. That this matter be and is hereby heard during the court vacation.

3. That a temporary injunction do issue and is hereby issued restraining the respondent by himself, his agents, servants or otherwise howsoever from executing the content of the deportation order issued by the Minister of State in the Office of the President on or about the 11th of September, 2001 for the deportation of SPL pending the hearing and determination of the substantive application.

4. That the costs of this application be and are in the cause.

5. That this matter be and is listed for inter partes hearing on Wednesday, January 14, 2004.

6. That the applicant do serve papers on all parties within the next eight days.”

8. On the 14th of January, 2004 the hearing of the application inter partes did not proceed, even though counsel for both parties were present, Mr Majanja for the applicant and Mrs Kajwang for the respondent. Mrs Kajwang, representing the Attorney-General, requested more time to file a replying affidavit. Mr Majanja requested a date for the hearing, given the urgency which had attended the application from the beginning. I made the following order:“Upon hearing counsel’s submissions, and in particular taking into account the urgency of this matter, it is ordered that the parties do appear before the duty judge on February 2, 2004 for the purpose of securing a hearing date. Interim orders shall remain in force until the hearing date.”

9. On February 2, 2004 the matter moved from the duty judge to the Honourable Lady Justice Mugo who heard the parties and gave further directions leading to the hearing which is the basis of today’s ruling.

10. What came before the Honourable Lady Justice Mugo was another chamber summons application, dated January 16, 2004 and filed on the same day under Certificate of Urgency. The wording of the Certificate of Urgency, signed by Ms Muthoni Kimani, Chief Litigation counsel on behalf of the Attorney-General, is as follows:“I, Muthoni Kimani, Chief Litigation Counsel in the Attorney-General’s Chambers, do certify that this application is extremely urgent as the ex parte injunction order granted on December 19, 2003 was extended on January 14, 2004 to February 2, 2004 and unless the application is heard and disposed of urgently, it is likely to affect the cordial relationship between the Kenya Government and the Kingdom of Belgium.”

11. The Attorney-General’s application was made under order XXXIX rules 4 and 5 of the Civil Procedure Rules, section 3A of the Civil Procedure Act (cap 21) and the Children Act (Act No 8 of 2001). The Attorney­General sought orders as follows:(i)that this application be certified as urgent and be heard ex parte in the first instance;(ii)that the exparte injunction granted to the applicant restraining the respondent and/or his agents from executing the deportation order issued by the Minister of State on the 11th of September, 2001 for the deportation of SPL be discharged and/or set aside.

12. Quite clearly, the Honourable Lady Justice Mugo was concerned about the inexplicably rushed manner in which the Attorney-General’s application was being place before her. The learned judge thus remarked:“The application was heard ex parte before me on the same date [of filing, namely January 16, 2004], the file having been brought to me at 5. 00 pm from the duty judge’s chambers. The application was not on the cause list for the day but was under Certificate of Urgency. I am unable to understand how the file was brought before me at that late hour when the date given for it was the 2nd of February, 2004 as noted thereon.”

13. The following passage in the ruling of the learned judge is relevant:“The above notwithstanding the application dated 16th January was argued ex parte before me in the belief that the same was urgent and in the interest of public duty. It was only after the Chief Litigation Counsel, Miss Kimani concluded her submissions and the court apprised itself on the previous recordings on file that it became clear that the degree of urgency was not as pressing as to warrant orders being made there and then. Miss Kimani and Miss Kajwang expressly agreed that the ruling of the court could await today’s date [February 2, 2004]. On further perusal of the file I noted that the issues before the court have been addressed previously at different levels of the Judiciary and certain orders made.”

14. The Honourable Lady Justice Mugo observed that, at the first occasion for an inter partes hearing of the chamber summons application of December 19, 2003 an adjournment had been sought, with leave to file a replying affidavit, by Ms Kajwang appearing for the Attorney-General; and adjournment was allowed, with leave to file a replying affidavit also granted. Was this opportunity to file a replying affidavit properly used? The Honourable Lady Justice Mugo remarked on this point as follows:“Instead of filing a replying affidavit as undertaken by the Attorney-General, the present application dated January 16, 2004 was brought in the circumstances already stated.”

15. The impressions, with respect, rightly gained by the learned judge on the occasion of hearing the Attorney-General’s application of January 16, 2004 led to the ruling which she delivered on February 2, 2004. The learned judge ruled, correctly with respect, as follows:“Being guided by the judgement of the Court of Appeal in Civil Appeal No 97 of 1999, I find myself without the power or jurisdiction to vacate or even entertain a review of the orders made... on [December 19, 2003]. The parties have not exhausted the opportunities given to them for an inter-partes hearing, the process of which has been agreed between the applicant and the respondent herein. Much as the issues herein may be causing irritation with their sensitive and pressing nature, the rule of law is universal and demands that parties to a dispute be given an equal right to be heard, in order that justice may be done and be seen to have been done.”

16. The learned judge declined to make any orders as requested by the applicant at this stage. She stated, quite correctly, with respect:“Parties having previously agreed that the issues before them be settled by way of inter partes hearing, the best way forward is to have this matter mentioned before the duty judge as previously ordered and for an urgent hearing date to be taken.”

17. The learned judge set the stage for the hearing which is the subject of the ruling today. In accordance with her orders, both parties were represented before the duty judge on 6th February, 2004. The duty judge ordered as follows:“Applications dated December 19, 2003 and January 16, 2004 for hearing on February 12, 2004 at 9. 00 am as it is a lengthy and protracted application.”

18. At the hearing which took place before me on February 12, 2004 Ms Muthoni Kimani for the Attorney-General opened her submissions by speaking to both Ms MB’s chamber summons application of December 19, 2003 and her own application of 16th January, 2004. She submitted that as the chamber summons application of January 16, 2004 was really a response to Ms MB’s of December 19, 2003 the two could be heard together in a consolidated hearing guided by just two sets of submissions. Mr Majanja objected to the suggestion that the Attorney­General’s chamber summons application of January 16, 2004 be accommodated; he stated that he was seeing this application for the first time right in court, and besides, this application carried an affidavit which was new and to which Ms MB (who I will throughout refer to as the applicant) would need to respond. To this clearly valid objection, counsel for the Attorney-General did not have an answer; she, however, graciously conceded that there was no need to proceed with the Chamber Summons application of January 16, 2004. The effect, of course, was that counsel for the Attorney-General would also have to dispense with the supporting affidavit attached to the chamber summons application of January 16, 2004. She expressed the willingness to withdraw that application, and Mr Majanja for the applicant was able to accommodate this position. I made a formal order withdrawing the respondent’s chamber summons application of January 16, 2004; and it was now well understood that counsel for the respondent could only make submissions on points of law, since the Attorney-General had not filed any affidavit even after being given leave to do so on January 14, 2004.

19. Before Ms Kimani for the respondent could begin on her preliminary objections, Mr Ongicho addressed the court regarding his status as counsel holding a watching brief on behalf of the Embassy of the Kingdom of Belgium in Nairobi. He stated that the Embassy’s interest in this matter arises from the fact that the child in question, SPL, is a national of the Kingdom of Belgium. This assertion of fact was not, however, the subject of any deposition and is not, indeed, of any particular relevance in the application which is the subject of this ruling. Mr Majanja for the applicant submitted that Mr Ongicho should be accorded no audience in court, as he had not applied to be joined in the suit. The Chief Litigation counsel, by contrast, submitted that since Mr Ongicho had been present in court constantly during motions related to the applicant’s claim, the applicant would suffer no prejudice on account of Mr Ongicho’s presence. I had to make a ruling on this point, and this went as follows:“From the submissions of counsel, it seems to me that the presence of Mr Ongicho in court will cause no prejudice to the court or to the parties.In the circumstances, I do allow him to be in attendance in court though without a right of audience. If and when he needs to exercise this right he will make a formal application at the right time, and the court will determine the question appropriately.”

20. The Chief Litigation counsel had objections to the applicant’s chamber summons application of December 19, 2003. Although Ms Kimani stated that her grounds of objection had been duly filed on January 13, 2004, they are not on file; and I must therefore deal with her submissions just on the strength of their verbal presentation.

21. Ms Kimani objected to the applicant’s application on three separate grounds. Firstly, it was argued that there was no provision of the law under which an interlocutory application could be made seeking orders of injunction against the Government. Secondly it was urged that the ex parte injunction granted against the respondents on December 19, 2003 was contrary to the provisions of the Government Proceedings Act (cap 40). Thirdly it was argued that the applicant was abusing the process of the court. Counsel then made more detailed submissions on these general points.

22. Counsel for the respondent had doubts whether the Children Act (Act No 8 of2001) and in particular its sections 4 and 18 supported the applicant’s case and the temporary injunction granted the applicant on December 19, 2003. In counsel’s view, the only correct procedure in the conduct of the applicant’s case was through judicial review, but the judicial review application which the applicant had filed was struck out on December 19, 2003. Ms Kimani argued that in these circumstances, the applicant had been left with one option only, namely, to appeal to the Court of Appeal to reverse the decision to strike out the judicial review application. She argued that as the applicant had filed no appeal, the present application was fatally defective. I must admit that I had some difficulty appreciating the merits of this particular argument.

23. Ms Kimani also considered the applicant’s application fatally defective, for the reason that the applicant had filed an Originating Summons, and then sought interim relief through the chamber summons application. Once again, I had difficulty appreciating the merits of this argument, as counsel made the bald condemnation of the procedure followed by the applicant, without stating what was professionally or technically objectionable. My difficulty here arises from the fact that, as I understand it, an interlocutory application would normally come within the ambit of a larger motion, which itself takes the form of a plaint, but could also take the form of an originating summons. And in this case the applicant’s chamber summons application of December 19, 2004 is to be seen against the background of the Originating Summons which had been filed on the same day. It did not appear to me that counsel for the respondent, on this question was raising an issue of merit in respect of which she entertained professional conviction.

24. Hearing could not continue on February 12, 2004 and it was adjourned to February 18, 2004 when the applicant was represented by Mr Majanja and Ms Sheikh, and the Attorney-General by Ms Kimani.

25. Ms Kimani doubted whether the applicant’s case could be argued on the basis of the Children Act (No 8 of 2001). She stated that this Act has its own procedures which are set out under Legal Notice No 74 of 20th May, 2002 as read together with section 73 of the Act. Counsel submitted that section 73 of this Act provides for the creation of the Children’s Court, to resolve claims such as those raised by the applicant. She argued that under sections 4 and 8 of the Children Act, the proper forum if the applicants had any grievances at all, was the Children’s Court. Ms Kimani submitted that the High Court would, in these circumstances, have no jurisdiction unless there were constitutional rights issues raised by virtue of section 84 of the Constitution. Counsel argued that all the matters set out in the applicant’s originating summons belonged in their entirety to the jurisdiction of the Children’s Court.

26. From this line of argument, counsel for the respondent submitted that the applicAnt’s Chamber Summons application and the entire proceedings leading to the orders of the court made on December 19, 2003 was an abuse of court process; and that the application had been made for the improper purpose of obtaining the injunction orders.

27. Again, I was unable to see the force or merit of this charge of abuse.

28. Abuses of the process of the court invariably speak for themselves. In this case I could only see an applicant whose child was about to be deported, seeking the only available recourse: the High Court as a court of unlimited jurisdiction, empowered to hear all litigious matters civil and criminal, and to give authoritative orders.

29. Counsel for the respondent further impugned the proceedings of December 19, 2003 which led to the issue of temporary injunctions in favour of the applicant, on the basis that the applicant had not made full disclosure regarding other cases in court bearing on the gravamen of the present application: Miscellaneous Cause No 910 of 1998 (which has yet to be heard and determined); and Civil appeal No 97 of 1999.

30. Now this charge is not valid. The applicant indeed, in her affidavit of December 19, 2003 did annex both the pleadings and order in High Court Miscellaneous Suit No 910 of 1998 (OS) and the ruling and order of the Court of Appeal in Civil Appeal No 97 of 1999. The order in High Court Miscellaneous Suit No 910 of 1998 (OS), indeed, makes all the three children of the applicant wards of this High Court. From this fact alone the applicant would have a clear entitlement under the law to move this court whenever the said wardship status is endangered; and this can only confirm that the applicant did have a right of access to this court by her application of December 19, 2003.

31. Miss Kimani did submit as follows:“There can be no clearer case of abuse of court process than where an ex parte injunction has been in force for five years.” She did not, however, make any submissions on the legal limits of the longevity of an ex parte injunction. Due to the nature of an exparte injunction, having been obtained by one party in the absence of the other, the party in whose absence the order was made always has a right to organise himself professionally and to mount a challenge in court, to enable the court to consider whether or not to set aside the injunction. It is not clear at all that the Attorney-General has ever taken such formal, professional steps to have the ex parte injunction in question set aside. This can only mean that the Attorney-General has no complaint against that injunction, or no professional preparedness to challenge that ex parte injunction. Now, so long as an injunction remains undischarged, it is irrelevant whether it was obtained ex parte or inter partes, because all that matters is that it remains the binding order of the court.The questions of law pertaining to the impugned ex parte injunction had indeed been considered by the Court of Appeal, in OPL v MB, Civil Appeal No 97 of 1999. The learned judges of the Court of Appeal held: “After a thorough consideration of both counsel’s submissions, we are satisfied that we have no ground upon which to interfere with the learned judge’s decision. The orders restraining the removal of the three infants out of the jurisdiction of the court and making them wards of the court shall remain undisturbed.”

32. It is clearly improper, in respect of those very orders which have been upheld by the Court of Appeal, to ascribe to the applicant in the present application a charge of abuse of court process. The submission made in this regard by counsel for the respondent, is thus unsustainable.

33. It is against this background that counsel for the respondent had argued that the applicant was not entitled to the injunctive orders of December 22, 2003. Counsel had indeed gone ahead to cite as authority for her proposition the case Uhuru Highway Development Ltd v Central Bank of Kenya and Two Others, Civil Application No Nai 140 of 1995, in which the following passage appears in the ruling of the Honourable Mr Justice Omolo (PP 2 - 3):“Once the learned judge was satisfied, as he was, that the applicant had obtained the order by concealing other relevant material, he was entitled not to consider the applicant’s application any further for the courts must be able to protect themselves from parties who are prepared to deceive...”

34. As already stated above, the circumstances of deceit contemplated in the Uhuru Highway Development case did not exist in the present application.

35. To the respondent’s objection, counsel for the applicant made extensive submissions which I will now set out.

36. Firstly, Mr Majanja argued, in effect, that what counsel for the respondent had presented went beyond the recognised practice with regard to preliminary objections. Mr Majanja submitted, correctly, with respect, that a preliminary objection should be founded on pure points of law, and should be truly prefatory and preparatory to the issues of substance in the claim in question; such an objection may also touch on uncontested facts, on the basis of which a decision by the court would dispose of the whole matter coming before it in limine. It was indeed clear that counsel for the respondent had raised neither a fateful point of law, nor of uncontested fact, which could lead to the discontinuance of the applicant’s case in limine. The effect was that the applicant’s interlocutory case now has been fully heard inter partes, and the orders to be given at the end of this Ruling, unless varied on appeal, will set the direction for the determination of the main action brought by the applicant.

37. Counsel for the applicant made his submissions in the context of two questions:(a)whether the chamber summons application of December 19, 2003 is properly founded on the Children Act (No 8 of 2001);(b)if so, whether this court can properly issue an injunction against the Government under that Act.Mr Majanja submitted that both questions must be answered in the affirmative.

38. Counsel submitted that the object of the Children Act is, firstly, to provide for the care and protection of children; and secondly, to give effect to the body of international law relating to the rights and welfare of children. The Children Act, 2001 it was submitted, is the national legal instrument in Kenya governing the rights and welfare of children. Part II of the Act is entirely concerned with the rights and welfare of the child; and Parts II and IV place specific obligations on the Government, with regard to the protection of the rights and welfare of the child. Section 3 of the Act requires the Government to take steps to give realisation to the rights of the child, which rights are defined in section 4 of the Act. Section 4(2) specifically places responsibility on organs of Government, including the court to endeavour at all times to uphold and protect the best interests of the child. Section 4(3) of the Act requires the Judiciary to be guided, in its decision-making, by the best interests of the child. The specific rights of the child which are protected, and in respect of which the government and the courts are required to play the role of instruments of implementation and protection, are set out in sections 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Children Act, 2001.

39. Counsel submitted that in respect of all the rights of the child set out in the Act, the enforcement provision is section 22. This section authorises an application to be made to the High Court, whenever any of the child rights is threatened, irrespective of any other remedy such as may be available. Section 22(2) empowers the High Court to hear and determine any such application made before it, and to make appropriate orders for giving effect to sections 4 -19 inclusive of the Act.

40. Mr Majanja submitted, quite correctly, with respect, that the High Court did have jurisdiction to entertain any complaint turning on the rights of the child as set out in the Children Act, 2001. Counsel submitted that the role of Children’s Courts is specifically defined and does not in any way qualify the broader mandate of the High Court in respect of safeguards to the rights of the child.

41. Against this background, counsel for the applicant submitted that this was a fit case for the grant of an injunction in favour of the applicant. He noted that the main cause, as set out in the originating summons of December 19, 2003 attributed certain breaches of the welfare of the child, SPL, to Government. To the application is attached a supporting affidavit carrying facts which, if true, would entitle the applicant to relief under the Children Act, 2001. Counsel submitted that the High Court had the jurisdiction to determine the question; and the rationale of this argument is that section 22 of the Act which confers the jurisdiction is indeed in pari materia with section 84 of the Constitution which gives direct access to the High Court where there are perceptions of violation of the fundamental rights of the individual. Counsel submitted that it was for the applicant to elect, and she could have proceeded under the Children Act or under the Constitutionof Kenya, section 84; and that the applicant did make her election in favour of the Act. Counsel submitted that the main recourse in the enforcement of the Children Act, 2001 is the High Court, and consequently its jurisdiction in respect of child rights claims cannot be questioned.

42. On the question whether the High Court can give an injunction in a case such as the present one, counsel submitted that the Court is empowered under section 22(2) of the Act, to hear and determine an application and to issue such writs, orders or decisions as it may deem fit. Counsel submitted that Parliament had thus reposed in the High Court the authority to make any such orders as may be appropriate, notwithstanding any other provisions of the law, and that no exception is in this regard made for such legislation as the Government Proceedings Act (cap 40) which otherwise would confer certain immunities upon the Government. In these circumstances, Mr Majanja submitted, prima facie an injunction can issue against the Government, to protect the rights guaranteed under the Children Act. And sections 3 and 4 of the Act have placed upon the Government the duty and responsibility to protect the rights, and promote the welfare, of the child. Counsel submitted that section 22 of the Act creates a special jurisdiction for the court, which the court must give full effect, a task which will entail the issuance of all appropriate orders in a proper case, orders which include injunctions to any party including officers of the Government.

43. Counsel for the applicant stated that the Children Act has vested certain rule-making powers in the Chief Justice, and that by virtue of this empowerment, already the Chief Justice has made certain rules:(i)Legal Notice No 74 of 2002 (dealing with the provisions in section 29 of the Act);(ii)Legal Notice No 75 of 2002 (dealing with the provisions in section 112 of the Act);(iii)Legal Notice No 76 of 2002 (dealing with the provisions in section 185(1) of the Act); and(iv)Legal Notice No 77 of 2002 (dealing with the provisions in sections 29, 112 and 185(1) of the Act).

44. So far, counsel submitted, none of such rules has addressed section 22(3) of the Act. However, counsel submitted, and correctly, with respect, that the non-issuance of rules in respect of section 22(3) would in no way compromise the jurisdiction of the High Court to resolve disputes relating to rights-claims under the Children Act. Hence, as counsel submitted, an applicant is entitled to approach the court in any manner consistent with the general rules of procedure applicable in the court. To doubt this position, counsel rightly submitted, would be to subscribe to questionable jurisprudence which holds that, in the absence of subsidiary legislation made by the Chief Justice in an administrative capacity, then all the child­rights stipulated in sections 4 - 19 of the Children Act are a nullity.

45. Counsel for the applicant disputed the respondent’s contention that the procedure followed in filing the application was in any way questionable. He provided authorities to demonstrate that the court is required to give effect to the words of the statute, aided in a general sense by the scheme and purpose of the particular statute. Counsel cited the High Court case, Royal Media v Telkom Kenya [2001] 1 EA 210, in which it was held (P 212):“The court could, in a proper case, issue injunctive relief against Government officers. This relief is similar to the coercive orders that are issued under the judicial review power. This relief would be available not only where the officer was exceeding his authority but also where he was acting in his ostensible authority.” (per Visram, J).

46. The learned judge in that case goes on to state the law as follows (PP 226 - 227):“The provisions of section 84(2) ... give clear power to this court to ensure that constitutional rights and freedoms are upheld. To do that the Court is given power to ‘make such orders, issue writs and issue such directions as it may consider appropriate’. In the light of this clear power, there is no justification whatsoever to state that this court has no power to issue [an] injunction against officers of the Government if that remedy is necessary for [the] enforcement of fundamental rights and freedoms under the Constitution. In fact, the statement that no injunction can be issued against officers of the Government has no support in the practice of this court....''

47. In her response to the applicant’s case, Ms Kimani for the Attorney-General maintained that once the application was made against the Attorney­General, then, that moment, the application of the Government Proceedings Act (cap 40) was attracted, and consequently injunctive relief was out of the question. Counsel maintained that the Children Act was an ordinary statute, on a par with other enactments, and consequently it would not claim to trump the Government Proceedings Act.

48. Ms Kimani also submitted that the application did not properly fall under the prescriptions of section 22 of the Children Act, and should be treated as belonging entirely to the framework of the Civil Procedure Act (cap 21) and Rules, in which case it was not possible for the applicant to escape the limitations imposed by the Government Proceedings Act (cap 40). Counsel argued that the High Court lacked jurisdiction to grant an interim injunction against the Government, even if it were held that section 22 of the Children Act was relevant to the application.

49. Ms Kimani further submitted that even if it was held that an interim injunction could properly be issued in this case, then such injunction could not lie against the Attorney-General and had to be in respect of a particular cited officer alleged to be in breach. Counsel urged that, by citing the Attorney-General the applicant had automatically invoked the Government Proceedings Act (cap 40), which disentitled the court from granting an injunction.

50. As I considered the last argument above to entail new matter, I invited counsel for the applicant to respond. Mr Majanja submitted that the Attorney-General as an officer in the public service and the principal adviser to the Government, is in a position to ensure compliance once the injunction is issued; and indeed the Attorney-General was duty-bound to ensure compliance once the injunction was issued. Counsel saw no legal impediment to a suit against the Attorney-General as the legal representative of the Government; and he cited as supporting case law the Guyanese Case, Olive Casey Jaundoo vAttorney- General of Guyana [1971] AC 972, which went to the Privy Council on appeal, and all along no issue was raised as to the joinder of parties. Counsel submitted that, where breach of the Children Act (Act No 8 of 2001) was alleged against the Government, as in the present matter, the right person to be made the respondent was the Attorney-General.

51. The emerging factual terrain in the present application may be summarized as follows:-(a)A decree of divorce was pronounced between MB and OPL at the Court of First Instance Sitting at Nivelles, in Belgium, on December 23, 1997(b)On August 12, 1998 MB drew and filed in this High Court Miscellaneous Civil Suit No 910 of 1998 (OS) seeking grant of custody in respect of the children of the marriage who were infants: CSL (born 30th October, 1986); JPL (born April 10, 1988); and SPL (born September 4, 1992)(c)Miscellaneous Civil suit No 910 of 1998 (OS) has not yet been heard and disposed of; and therefore its gravamen is still alive, and this is well known to the parties and to the Government of Kenya. The plaintiff has not yet secured the prosecution of the suit to a conclusion. The defendant has made no application before this Court, regarding the status of the suit. These details are well known to the State Law Office and to counsel representing the Attorney-General.(d)On the basis of Miscellaneous Civil Suit No 910 of 1998 (OS), the applicant on August 12, 1998 made an application before this court under the Guardianship of Infants Act (cap 144), the Judicature Act (cap 8), the High Court (Practice and Procedure) Rules, order XXXVI of the Civil Procedure Rules, and all other enabling provisions of the law. This court, on that occasion, made several orders two of which are of special relevance in the present matter:-(i)That an injunction do issue and is hereby issued restraining both the applicant, and the respondent from removing any child of theirs namely CSL - born 30/ 10/1986, JPL - born 10/04/1988, SPL- born 04/09/1992 from the jurisdiction of this Honourable Court.(ii)That the said children CSL, JPL, SPL be and are hereby placed under the protection of this honourable court.These orders were made by Mr Justice Oguk on August 12, 1998 and were extracted and issued by the Deputy Registrar of the Court on August 20, 1998. (e)Mr OPL lodged an appeal against the orders of the High Court in Civil Appeal No 97 of 1999. This appeal was dismissed in clear terms:“After a thorough consideration of both counsel’s submissions, we are satisfied that we have no ground upon which to interfere with the learned judge’s decision. The orders restraining the removal of the three infants out of the jurisdiction of the court and making them wards of the court shall remain undisturbed”(f)The three children, therefore, by the orders of Kenya’s Court of unlimited jurisdiction, namely the High Court, and the highest court, namely the Court of Appeal, became wards of the court, to be, under the regular law, kept always, in the absence of any further order to the contrary, within the jurisdiction of the High Court of Kenya. This position represented the lawful and sacrosanct legal position of the Republic of Kenya requiring the compliance of all persons be they members of the Executive arm of Government or not.(g)On September 11, 2001 the three children who were lawfully ordered to be kept within the jurisdiction of the High Court of Kenya, namely CSL, JPL and SPL were arrested at the schools in Nairobi which they, respectively attended, by immigration officials working in collaboration with the police; and while the applicant managed to wrest control of SPL, the other two children, CSL and JPL were subjected to Immigration interrogation without access to counsel, and were abruptly deported under orders made by the Minister of State in the Office of the President.(h)The said three children, namely CSL, JPL and SPL were at all material times in possession of valid dependants’ passes issued under part IV of the Immigration Rules made pursuant to section 17 of the Immigration Act (cap 172).The facts set out above will be the basis of an analysis of the submissions made by counsel, and this will lead to the decision and final orders of this court.

52. The respondent’s case has been argued mainly on technicalities of procedure; but as already remarked, I have not been convinced by the weight of these particular submissions, as no authoritative material has been cited to support counsel’s several contentions. I have not, for instance, been able to see any serious defect in the applicant’s chamber Summons application brought within the ambit of the originating summons. I have also not been able to see why the case being made for SPL, born in 1992 and therefore, only 12 years old, cannot be made within the framework of the Children Act (Act No 8 of 2001). Similarly I do not agree that claims based on child-rights, so comprehensively provided for in the Children Act, with a clear jurisdiction vested in the High Court, must exclusively be taken up before the Children’s Magistrate’s Courts. Moreover, on these very points, counsel for the applicant has submitted with much conviction that the application was properly placed before the High Court.

53. The plain words of section 22 of the Children Act entrust to the High Court full jurisdiction in resolving disputes pertaining to the rights of children. Persuasive authority has been produced by counsel, showing that injunctive relief may be made against government officials in a proper case.

54. The Attorney-General’s Office is the State Law Office, a core instrumentality of the process of legality in the conduct of governance in this Republic. Not only is this office expected and required to assist the courts in upholding the supremacy of the law in Kenya; it is required to advise all Departments of Government and all Ministers, competently, efficiently and in good faith, on the correct path of decision-making in compliance with the law of the land. The State Law Office is required to functionalise all instruments of law to support lawful decision-making in Government, and to give to the State an image of credibility as a law­abiding nation, within the international community of Nation-States.

55. It is clear from the facts as summarized earlier, that the deportation of CSL and JPL was a blatant violation of the law of this country. Is it the case that such action was taken without the knowledge of the State Law Office? Kenya is, besides, a party to the United Nations Convention on the Rights of the Child (ratified in January, 1990), and the enactment of the Children Act was partly for the purpose of giving effect to the principles embodied in that Convention. It is expected that the State Law Office will make it one of its primary tasks to advise Government on the due implementation of the Convention, through the instrumentality of the Children Act, 1989.

56. Counsel submitted, quite correctly, with respect, that to deport a child who has been made a ward of this court, is a breach of the child’s rights. I would add that any deportation effected in those circumstances is a contempt of this Court. It must not be allowed to happen because this would show that a decision is being taken within the Executive arm of Government which is in defiance of the law, and in contempt of the court process. The court does not, and ought not to be seen to, make orders in vain; otherwise the court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people, including children.

57. There is clear evidence of moves made by the respondent which would only tend to hurt the integrity of the legal process in resolving a dispute such as the one involved in this matter. An example of this is the persistent failure to file trial papers such as would enable a fair hearing to take place. Another is the somewhat inappropriate application which the respondent filed under Certificate of Urgency on January 16, 2004, which stated that “unless the application is heard [and] disposed of urgently it is likely to affect the cordial relations between the Kenya Government and the [Kingdom] of Belgium”. The Honourable Lady Justice Mugo did express her anxiety about that application, and ended with a vital statement of legal principle which suitors should always bear in mind:“Much as the issues herein may be causing irritation with their sensitive and pressing nature, the rule of law is universal and demands that parties to a dispute be given an equal right to be heard, in order that justice may be done and be seen to have been done”

58. I must take judicial notice that all civilized countries subscribe to these values; and that the Belgian legal system, which has a substantial common ancestry with the French legal system, subscribes to a certain unwritten general body of law associated with good governance, known as Principes generaux de droit. These are explained in summary by Professor Sir Otto Kahn-Freund, Claudine Levy and Bernard Rudden in their work, A Source­book on French Law, 2nd Ed (Oxford: Clarendon Press, 1997), at page 176 as follows:‘[Principes generaux de droit] ... are ... principles guiding the law-maker, ie the legislator, the judge, and the interpreter of existing legislation. The closest English parallels are perhaps the “Maxims of Equity’ and Principles of Natural Justice (‘nemo judex in causa sua audiatur altera pars’). Rules such as that statutes are presumed not to be retroactive nor to taken away common law rights or remedies may be said to be general principles of law brought to bear on the interpretation of statutes.”

59. More content is given to this definition by L Neville Brown and J F Garner in their work, French Administrative Law, 2nd Ed (London: Butterworths, 1973) at page 121:“the other category is the more important and consists of the Principes generaux properly so called. These are those fundamental human rights, which are contained in the Declaration of the Rights of Man of 1789 and the preamble to the 1946 Constitution [of France] or which may be deduced from them. The executive ... cannot transgress these principles. For, although the division of powers is now expressly regulated by the Constitution, the administrative judge is still entitled, indeed obliged, to examine the validity of governmental action by reference to those principles which constitute the very basis of the republican regime, such as the essential liberties of the citizen (‘Liberte”), equality before the law (‘Egalite”), the doctrine of separation of powers, the ....right to judicial review. Such fundamental rights, which are mostly entrenched in the text of the American Constitution, in France are protected to a large extent by resort to the unwritten principes generaux. ”

60. These principles will not support such blatant violation of the law as, in this country, was realized with the unauthorized deportation of two children, CSL and JPL. It follows that this court, in its obligation to uphold the rule of law, must re-state the wardship status of SPL and declare it illegal and a contempt of court, that anyone whosoever do deport him to the Kingdom of Belgium or anywhere else. In answer to the applicant’s prayers in her chamber summons application of December 19, 2003 I will make the following orders:-1. That a temporary injunction do issue and is hereby issued, restraining the respondent by himself, his agents, servants or otherwise howsoever from executing the content of the deportation order issued by the Minister of State in the Office of the President on or about the September 11, 2001 for the deportation of SPL pending the hearing and determination of the substantive case.2. That the costs of this application shall be in the cause.