[2023] KEHC 20031 (KLR)

CS v NK (Civil Appeal (Application) E045 of 2022) [2023] KEHC 20031 (KLR) (Family) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 20031 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal (Application) E045 of 2022

PM Nyaundi, J

June 30, 2023

Between

CS

Applicant

and

NK

Respondent

Ruling

1. By Notice of Motion dated 15th May 2023, presented under sections 1 A, 1B, 3A and 15 of the Civil Procedure Act, order 42 rule 6(1) and order 51 rule (1) of the Civil Procedure Rules the Applicant seeks the following orders -1)Spent2)That this Honourable Court be pleased to stay the directions and orders issued on the 12th May 2023 limited to the custody of the minor pending the hearing and determination of this Application3)That this Honourable Court be pleased to issue orders restraining the Respondent from intimidating the Applicant/ Appellant with police officers pending the hearing and determination of this Application.4)That pending the hearing and determination of this Application a children report be filed in Court as to the mental state of the minor.5)That costs of this Application be provided for.

2. The Application is supported by Affidavit of the Appellant sworn on the May 15, 2023. The Application is opposed by the Respondents who has sworn an affidavit in opposition on May 25, 2023.

3. The Application was presented under certificate of urgency and the court declined to grant any orders in the interim pending the hearing of the Application. All the prayers sought by the Applicant are pending the hearing and determination of the Application.

4. That said the Application as presented does not invite the Court to make any orders subsequent to the hearing of the Application. That should be enough to dispense of the Application, however the Respondent has in Response submitted that the Application is Res Judicata as the Applicant sought the same orders in notice of motion dated April 25, 2022.

5. The substantive law on Res Judicata is found in section 7 of the Civil Procedure Act cap 21 which provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

6. As stated in the decision of Abok James Odera v John Patrick Machira Civil Application Nai. No. 49 of 2001, the principle applies to both suits and Applications. The rationale of the doctrine of res judicata, was articulated in the decision of the Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR.“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

7. In the Maina Kiai case (supra), the Court cited with approval the Indian Supreme Court in the case of Lal Chand v Radha Kishan, AIR 1977 SC 789 where it was stated;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.”

8. The current application by the Respondent is said to be hinged on the best interests of the child. The best interests of the child cannot be applied to circumvent orders of the Court. The orders that were sought by the Applicant are a replica of the orders sought in the Notice of Motion dated 25th April 2022. The application is clearly Res Judicata and a plea of best interests of the Child will not redeem this.

9. Section 32 (1) of the Children Act, 2022 provides that: -Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.

10. It is in the best interests of the Child, that she has access to both her parents in a calm and sober environment and that the parents are intentional about insulating the child from the toxicity in their relationship. This necessarily means that the parents manage the shared custody between them smoothly, ensuring that the child moves between the parents as ordered by the court.

11. In the circumstances I dismiss the Application dated May 15, 2023 in its entirety having found that the same is Res Judicata and not in the child’s best interests. I reiterate the orders issued on May 12, 2023 and make the following orders: _1. The Application dated May 15, 2023 is dismissed.2. For avoidance of doubt, pending the hearing and determination of the Appeal, the orders of the Court requiring the Applicant to cater for the minor’s school fees and school related expenses, along with providing for the minor’s food at the rate of Kshs. 15000 per month remain valid and enforceable.3. The minor to continue her education at Moi Educational Centre4. Further the parties when travelling with the minor out of the Court’s jurisdiction are required to consult with each other and obtain the consent of either party depending on who is travelling with the minor.5. The respondent shall maintain actual custody care and control of the minor pending the determination of the Appeal.6. The parties shall have joint legal custody and shall share custody of the minor equally during school holidays.7. The Applicant shall have custody of the minor every weekend from Saturday at 10 am to Sunday at 3 pm. Parties shall agree on the pick-up and drop off points and whenever the Applicant is not available he shall notify the respondent prior to the day of access.8. The Appellant shall pay costs of the Application.It is so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JUNE 2023. P M NYAUNDIJUDGEIn the presence of:Ms Owino Advocates for the Appellant/ ApplicantAdvocates for the RespondentKarani Court Assistant