[2022] KEHC 17222 (KLR)

BWK v RW (Miscellaneous Application 192 of 2019) [2022] KEHC 17222 (KLR) (Family) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17222 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application 192 of 2019

EKO Ogola, J

December 15, 2022

Between

BWK

Applicant

and

RW

Respondent

Ruling

1. The Application before this Court is dated December 11, 2019. The Applicant seeks for Children Case No. 203 of 2016 which was filed before the Senior Resident Magistrate Tononoka to be transferred to Milimani Children’s Court, Nairobi and for the costs of the Application to be in the cause.

2. The background of the Tononoka case is that it was instituted by way of a Plaint filed on May 31, 2016 where the respondent herein (the plaintiff therein) sought orders of adequate maintenance and care of a child from the Applicant herein.

3. Back to the Application at hand. It is based on the grounds stated therein and the Supporting Affidavit and Further Affidavit sworn by the Applicant. He avers that he resides in Nairobi with the child who also attends school in Nairobi County. He contends that he is apprehensive that justice will not be served if the Tononoka case is not transferred to Milimani. He further states that the orders sought would not prejudice the Respondent in any way and that it is in the best interest of the child.

4. The Respondent replied to the Application vide a Replying Affidavit where she deposed that she resides in Kilifi County and at the time of filing the Tononoka Case, the child who was born and raised in Ukunda, Kwale County was living within the jurisdiction of the Tononoka Children’s Court. She deposed that the Applicant abducted the child sometime in September 2015. She further contended that the cause of action arose within the jurisdiction of the Tononoka Children’s Court, therefore, it precedes any other case filed by the Applicant. She also claimed that the Applicant lives in Kisii County and not in Nairobi County as alleged. She also deposed that if the order sought is granted, she will be prejudiced as she is not financially capable of travelling to Nairobi from time to time.

5. Parties were directed to canvass the matter vide written submissions.

6. Mr. Muyala learned counsel for the Applicant submitted that Section 18 of the Civil Procedure Act bestows this Court with powers to transfer suits of a civil nature and further to this, that the overriding objective of the said Act stipulates that Courts should facilitate just and efficient resolution of disputes. Counsel relied on the case of Hangzou Agrochemicals Ltd vs. Panda Flowers Ltd (2012) eKLR and submitted that the burden of proof lies on the Applicant to make out a strong case for the transfer which he has done.

7. Counsel submitted that the Respondent would not be prejudiced as the Applicant is the one who has been living with the child since September 2015 and further to this, he submitted that matters in the Children Courts currently proceed virtually therefore, there is no need for the Respondent to spend money on travelling to Nairobi.

8. Counsel invited this Court to consider the best interest of the child as espoused in Section 4 of the Children’s Act as the child resides and studies in Nairobi. Lastly, counsel submitted that the best interest of the child is superior to the rights and wishes of the parents.

9. At the time of writing this Ruling, the Respondent had not filed her written submissions as directed.

Determination 10. I have considered the pleadings filed and the submissions of counsel.

11. The relevant law on the transfer of cases is Section 18 of the Civil Procedure Act which provides as follows:-“Power of High Court to withdraw and transfer case instituted in subordinate court(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”

12. Section 18, therefore, empowers the High Court to withdraw and/or transfer a case instituted in a subordinate Court on the Application of any of the parties or on its own motion. For the Court to grant an order of transfer the Applicant must satisfy the Court as to the reasons for such orders.

13. The Tononoka case is for the maintenance and care of the child. It is not controverted that the Applicant has been living and providing for the child since September 2015. Further to this, as evidenced by the child’s school progress report, the child studies in Nairobi. The Children’s Officer’s report dated November 24, 2017 stated that when the child was interviewed, she mentioned that she could not remember the last time she saw her mother. The child also stated that she wouldn’t wish to see the Respondent because she used to beat her and that she also did not care about her education.

14. The Tononoka case was filed by the Respondent on May 31, 2016. She deposed that at the time of filing the case, the child was under the jurisdiction of Tononoka Children's Court. She further averred that the Applicant abducted the child sometime in September 2015. The dates are not adding up. The Respondent’s other contention is the financial challenge of travelling to Nairobi from time to time. I must agree with Mr. Muyala’s submissions. Cases in the Children’s Court proceed virtually as the Courts are encouraged to embrace technology to improve access to justice for all Kenyans.

15. The Applicant also argued that it is in the best interest of the child for the case to be transferred to Milimani Children’s Court. This Court is obligated under Section 4(3) of the Children Act while considering any disputed matters involving children to give primacy to the best interest of children. This is in consonance with Article 53(2) of the Constitution which states that:-“A child’s best interests are of paramount importance in every matter concerning the child.”

16. The child has been residing in Nairobi for about 7 years now. If any orders of maintenance are issued, then Milimani Children’s Court would have the jurisdiction to ensure compliance of the said orders.

17. I find merit in the Application dated December 11, 2019 and order and direct that the Children Case No 203 of 2016 filed before the Senior Resident Magistrate at Tononoka Children’s Court be and is hereby transferred to the Children’s Court at Milimani, Nairobi.

18. Parties shall bear their own costs.

19. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 15THDAY OF DECEMBER 2022E.K. OGOLAJUDGEIn the presence of:Mr. Andati for the ApplicantN/A for the RespondentGisiele Muthoni Court Assistant.