[2022] KEHC 14759 (KLR)

Director of Civil Registration v SAB & another (Civil Appeal E029 of 2022) [2022] KEHC 14759 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14759 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E029 of 2022

MA Odero, J

October 7, 2022

Between

Director of Civil Registration

Appellant

and

SAB

1st Respondent

IMWB

2nd Respondent

(Being an appeal from the Ruling and order delivered on 3rd March by Hon C.C Oluoch Chief Magistrate in the Milimani Children’s Court at Nairobi in children’s Misc. App No. 172 of 2021)

Ruling

1. Before Court is the Notice of Motion Applicant dated March 19, 2022 by which the Appellant/Applicant Director Of Civil Registration seeks the following orders:-1. Spent2. This Honourable court be pleased to grant a temporary stay of proceedings in Milimani Children’s Court at Nairobi in Children’s Miscellaneous Application No 172 of 2021 following the Ruling and order delivered on March 3, 2022 by Hon CC Oluoch directing the matter to proceed to hearing of the main application on March 30, 2022 vide an application for surrogacy arrangement vide seeking orders for legal custody and parental orders.3. This Honourable court be pleased to grant a stay of proceedings in Milimani Childrens Nairobi in Children’s Miscellaneous Application No 172 of 2021 following the Ruling and order delivered on March 3, 2022 by Hon CC Oluoch directing the matter to proceed to hearing of the main application on March 30, 2022 vide an application arising from a surrogacy arrangement vide seeking orders for legal custody and parental orders pending the hearing and determination of this appeal.4. Costs of this application be in the cause.”

2. The Application was premised upon section 1A, 1B,3A, 3B, 63 (e) of the Civil Procedure Act Cap 21 Law of Kenya, Order 51 Rules 1 and 3 of the Civil Procedure Rules and all other enabling provisions of the law was supported by the Affidavit of even date sworn by Elizabeth Mutsoli a state Counsel.

3. The 2nd Respondent IMWB opposed the application through her Replying Affidavit dated April 8, 2022. The application was canvassed by way of written submissions. The Applicant filed written submissions dated May 20, 2022 whilst the Respondent did not file any written submissions.

Background 4. The 1st and 2nd Respondents are legally married to each other. Due to the inability of the 2nd Respondent to conceive a child the two came to Kenya and entered into a surrogacy agreement with a third party who successfully delivered a baby girl on December 1, 2021. Upon birth of the child the Respondents took the baby into their custody. They allege that the surrogate voluntarily relinquished all rights to custody over the child.

5. The Respondents filed in the Nairobi Children’s Court an originating summons dated December 10, 2021 seeking the following orders:-1. That this matter is certified urgent.2. That a Children Officer do make a home visit and file a report.3. That a status quo in regard to interim custody of the minor be maintained.4. That the court do grant the Applicants the nearest hearing date available to enable them apply for the minors travel papers from the USA Embassy, Nairobi and take her back with them before their leave days expire.5. That this Honourable court do make an order granting the Applicants legal custody and parental rights over the minor.6. That this Honourable court do make an order to the Registrar of Births to revoke birth Certificate No Axxxx and issue a new birth certificate listing the Applicants herein as the minors parents.7. That there be no order as to costs.”

6. The Registrar of Births (the Applicant herein) was enjoined as an Interested Party in the matter before the Children’s Court. The Applicants filed in the Children’s Court a Notice of Preliminary Objection to the Respondents suit which Preliminary Objection raised the following grounds-1. That this Honourable court has no jurisdiction to hear, entertain and/or determine the matters as the remedies sought herein are the preserve of the High Court, Family Division.2. That this application for parental order has no basis in law.3. That this surrogacy agreement is invalid and cannot be upheld by any court in Kenya.4. Further and other grounds to be canvassed at the hearing hereof.”

7. On March 3, 2022 the learned trial Magistrate delivered a Ruling dismissing the Preliminary Objection. The court directed that the suit proceed for hearing by way of viva voce evidence on March 30, 2022.

8. Being dissatisfied with the ruling of the trial court on their Preliminary Objection the Applicant filed a Memorandum of Appeal. Contemporaneously with the Appeal, the Applicants also filed this application for stay of the proceedings in the Children’s Court.

9. The Appellant who was represented by the Hon State Counsel submitted that the legal transfer of a child born under a Surrogacy Arrangement can only be carried out through Adoption proceedings which are the preserve of the High Court. That the issuance of a new Birth Certificate in the name of the Respondents would amount to a legal transfer of parenthood to the said Respondents.

10. The Respondents on their part submit that there is no contention over the parentage of the minor as DNA testing conducted at KEMRI confirmed that the 1st Respondent is the biological father of the minor. The Respondents argued that it was in the best interests of the Child that they be granted legal custody and parental rights over the child to enable them travel with her to the USA as one family unit.

Analysis and Determination 11. I have carefully considered the application before this court, the Reply filed thereto as well as the written submissions on record. It is not for the court at this point to delve into the merits or otherwise of the appeal. The only issue for determination is whether the application for stay ought to be granted.

12. Order 42 Rule 6(2) of the Civil Procedure Rules 2010 provide for the conditions to be met in considering an application for stay of execution. The court must satisfy itself that-(a)The application has been brought without undue delay.(b)The Applicant stands to suffer substantial loss if the stay is not granted.(c)The Applicant has provided security for the due performance of the decree.

13. In this case the impugned Ruling was delivered on March 3, 2022. The present application was filed on March 19, 2022 barely two (2) weeks after the ruling was delivered. I am satisfied that the application for stay was filed in a timely manner.

14. In the Ruling of March 3, 2022 the learned trial Magistrate dismissed an objection to the hearing of an application filed by the Respondents seeking to be granted interim custody of the minor to enable them travel with the minor to the USA. The Respondents also sought the revocation of the minor’s Birth Certificate and prayed that the Appellant be ordered to issue the child with a new Birth Certificate bearing the names of the Applicants as the minors parents. It is manifest that the orders which are being sought in the Childrens Court relate to a minor.

15. It is trite law that in matters concerning the welfare of children courts are required to give priority to the best interest of the child.

16. The Constitution of Kenya 2010 provides at Article 53 (2) that:(2)A child’s best interests are of paramount importance in every matter concerning the child.”

17. Likewise Children Act at Section 4(2) provides as follows:-“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. (own emphasis)

18. In the case of Bhutt Vs Bhutt– Mombasa Hccc No 8 of 2014, the Court held as follows:-“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis)

19. The trial Magistrate already dismissed the Preliminary Objection raised by the Applicants. The Applicants cannot through this application for stay seek to relitigate their Notice of Preliminary Objection.

20. The Respondents sought order for interim custody of the minor. Applications for orders for custody fall well within the jurisdiction of the Children’s Court. Thus, it would be proper for the issue of custody to be determined by the trial court.

21. The Applicants submit that they stand to suffer irreparable damage and prejudice if the orders of stay are not granted. I fail to see how a government department will suffer irreparable harm by the granting of orders by the Children’s Court. The Applicants have the opportunity to present their case in the trial court. The Applicants by this motion are seeking to stay the hearing of the suit in the Childrens Court. It cannot be in the best interests of the child to stay the hearing of a suit involving the child.

22. In my opinion this application for stay is premature. If upon determination of the matter the Applicants are dissatisfied with the decision of the trial court then they are liberty to file an application to stay that decision.

23. I am not persuaded that the entire appeal will be rendered nugatory if the orders sought are not granted. I find no merit in this application for stay. The same is hereby dismissed in its entirety. Each party to bear its own costs.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE