Barasa v Wanjala (Miscellaneous Case E001 of 2026) [2026] KEHC 9090 (KLR) (25 June 2026) (Ruling)

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA COUNTY COURT NAME: BUNGOMA HIGH COURT CASE NUMBER: HCCCMISC/E001/2026 MARTIN KISEMBE BARASA VS FANICE NASIMIYU WANJALA RULING **RULING** 1. Before this Court is the Notice of Motion dated 5th January 2026 in which the Applicant seeks, inter alia, orders staying proceedings in Malindi Children's Case No. MCCHC E065 of 2025 and Malindi Divorce Cause No. MCDC E063 of 2025, transferring the matters to Bungoma and consolidating them with Bungoma Children's Case No. E063 of 2025. He contends that he instituted the Bungoma Children's Case before the Malindi proceedings were filed and that the subsequent proceedings offend the doctrine of sub judice and amount to an abuse of the court process. 1. The Applicant submits that the parties were married in Bungoma, established their matrimonial home there and raised their children within Bungoma County. He argues that the cause of action substantially arose in Bungoma and that most witnesses are resident there. According to the Applicant, hearing the matters in Bungoma would enhance access to justice, reduce litigation costs and facilitate expeditious disposal of the dispute. 2. The Applicant further submits that the issues raised in the Bungoma and Malindi children's proceedings relate to the same parties and children and concern custody, care, control and maintenance. He argues that allowing the matters to proceed concurrently risks conflicting decisions and unnecessary multiplicity of proceedings. He therefore urges the Court to stay the Malindi proceedings, transfer them to Bungoma and order consolidation. 3. The Respondent opposes the application and contends that it is misconceived and not brought in the best interests of the children. She states that following the parties' separation, she permanently relocated to Malindi where she established a business and now resides with the children. She further states that the children are enrolled in schools within the Coast region and that their welfare, education and daily needs are centred in Malindi. 1. The Respondent maintains that the Malindi Children's Case and the Divorce Cause are distinct proceedings and that there is no corresponding divorce cause pending in Bungoma to justify the transfer sought. She further states that she was unaware of the Bungoma proceedings when she instituted the Malindi Children's Case and that she only became aware of the Bungoma orders after commencing the Malindi proceedings. Upon learning of the parallel proceedings, she disclosed their existence to both courts. 2. According to the Respondent, the Applicant has failed to demonstrate sufficient grounds to warrant transfer of the proceedings. She contends that considerations of convenience, access to witnesses and the best interests of the children favour retention of the matter in Malindi, where the children reside and where any welfare assessments or reports by Children's Officers can be readily undertaken. In the alternative, she submits that should the Court find consolidation necessary, the consolidated proceedings ought to be heard in Malindi. Issues for Determination 1. The Court has carefully considered the application, the affidavits on record and the submissions filed by the parties and in my view, the issues arising for determination are: 2. Whether the doctrine of sub judice applies 3. Whether the Applicant has satisfied the legal threshold for transfer of the proceedings from Malindi to Bungoma. 4. Whether the orders sought would advance the best interests of the children. Whether the doctrine of sub judice applies 5. The Applicant's principal argument is that the proceedings before the Malindi Court are sub judice by virtue of the earlier proceedings filed at Bungoma. 6. Section 6 of the Civil Procedure Act bars a court from proceeding with a matter where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title before a court of competent jurisdiction. 7. For the doctrine to apply, the Court must be satisfied that the issues in dispute are substantially the same, the parties are the same or litigating under the same title, and the reliefs sought are substantially identical. 8. While the Applicant has demonstrated that the parties in both proceedings are the biological parents of the children concerned, that fact alone is insufficient. The Court must interrogate whether the issues raised in the respective proceedings are identical and whether determination of one matter would conclusively dispose of the other. 9. From the material placed before this Court, there is insufficient information regarding the precise pleadings, prayers and issues before the Malindi Court and the Bungoma Court. The Court has not been furnished with certified pleadings demonstrating that the matters are wholly identical. 1. It is not uncommon in family disputes for custody, maintenance, parental responsibility and divorce proceedings to proceed contemporaneously while addressing different though related questions. The mere existence of overlapping facts does not automatically attract the doctrine of sub judice. 2. The burden lay with the Applicant to demonstrate that the statutory requirements of Section 6 of the Civil Procedure Act had been fully met. That burden has not been discharged to the satisfaction of the Court. 3. Consequently, I am unable to conclude that the proceedings before the Malindi Court are barred by the doctrine of sub judice. Whether the Court should order transfer 1. Section 18 of the Civil Procedure Act empowers the Court to transfer suits from one subordinate Court to another. The conditions to meet by the applicant as stipulated in the provisions include interalia: Balance of consequence, questions of expense, undue hardship interest of justice, want of jurisdiction and for any sufficient reasons. (See case of David Kabungu v Zikarenga & 4 others, Kampala HCC No. 36 of 1995, Hangshore Agro-chemicals Industries Ltd v Panda Flowers Ltd {2012} eKLR) 1. In George Mwongera Mwenda Meru v Loise Gakii Misc. Application No. 70 of 2015 the Court held that: ''A superior Court, has the power to transfer causes from one subordinate Court to another for hearing and disposal. The Court went on to hold that the power served an important purpose in Law to attain the ends of and facilitate access to justice. That was why the Court could invoke and exercise the power suo moto." 1. The requirement that before the Court will issue an order for transfer must meet the outlined criteria is a useful one but it cannot be applicable generally it depends largely on the facts and circumstances of a particular case. 2. In this particular case, the Applicant has also invited this Court to transfer the Malindi proceedings to Bungoma and consolidate them with the Bungoma proceedings. The power of transfer under Section 18 of the Civil Procedure Act is discretionary. Such discretion must be exercised judicially and upon demonstration of sufficient cause. 3. The Court is alive to the fact that transfer of a suit is not granted as a matter of course. The applicant must establish that the interests of justice demand such transfer. In children matters, the Court must go beyond considerations of convenience to the parties. The paramount consideration is the welfare and best interests of the child as ordained by Article 53(2) of the Constitution and Section 8 of the Children Act. 4. The Applicant has urged the Court to find that Bungoma is the appropriate forum because the children previously resided there and because he filed proceedings there first. However, the Respondent has demonstrated that the Applicant only filed his pleadings when he was served by the Respondent. The Court has also noted that the children are resident and schooling in Malindi. 1. A transfer order cannot be grounded merely upon the preference of one parent or upon the sequence in which proceedings were filed. The Court must be persuaded that the transfer sought would promote the welfare of the children. In the present application, no children's officer's report, social inquiry report, educational assessment or other independent material has been placed before the Court to demonstrate that relocation of the proceedings to Bungoma would advance the best interests of the children. 2. In the absence of such evidence, the Court would be engaging in speculation were it to conclude that Bungoma is the more appropriate forum. 3. The Court therefore declines to exercise its discretion in favour of transfer. Whether the orders sought promote the best interests of the children 4. Article 53(2) of the Constitution provides that a child's best interests are of paramount importance in every matter concerning the child. This constitutional imperative requires courts to adopt an approach that minimizes disruption in the lives of children and facilitates timely determination of disputes affecting them. 5. The orders sought by the Applicant would have the effect of halting proceedings presently pending before another court and potentially delaying determination of issues affecting the children. The Court has not been furnished with sufficient evidence demonstrating that such delay would be justified by corresponding benefits to the children. 6. On the contrary, prolonged jurisdictional contests between parents often divert attention from the substantive questions concerning the welfare, maintenance, education and emotional wellbeing of the children. The Court must therefore guard against converting procedural applications into instruments that delay substantive adjudication of children's disputes. Determination 1. Having considered all the circumstances of this matter, I am not persuaded that the orders sought would advance the paramount interests of the children. 2. The Applicant has failed to establish sufficient grounds for stay, transfer or consolidation. Final Orders 1. The Notice of Motion dated 5th January 2026 lacks merit and the same is hereby dismissed. 2. The parties shall proceed with the substantive matters before the courts seized of the respective proceedings unless otherwise lawfully directed by a court of competent jurisdiction. 3. Given the nature of the dispute and the continuing parental relationship between the parties, each party shall bear his or her own costs. Ruling delivered virtually on 25th June 2026 In the presence of; Barasa H/B for Nakhurenya for the Plaintiff Appliacnt N/A for the Respondent SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE CHELANGAT MUTAI** Bungoma High Court High Court Div Date: 2026-06-25 13:08:39