[2017] KEHC 9689 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COUT OF KENYA AT MERU

CHILDREN APPEAL NO. 11 OF 2017

E K G............................................APPELLANT

VERSUS

C K..........................................1ST RESPONDENT

J K G......................................2ND RESPONDENT

(An appeal from the Ruling and Order of the Hon. L. Ambasi made on 27/2/2017 in Meru CMC Children's case No. 7 of 2017)

JUDGMENT

1. This is an appeal from an order made in the Meru CMC Children's case No.7 of 2017 made on 23rd February, 2017 by the Hon. L. Ambasi (CM). The respondents are the plaintiffs in a plaint lodged in that court wherein they allege that on or about October, 2017 their daughter, F.N.(“the minor”) was abducted by the Appellant. The appellant denied the allegations in her defense.

2. By a Chamber Summons application dated 19th January, 2017, the respondents applied for orders to compel the appellant to produce the minor and an order to restrain the appellant from accessing the minor. The trial court then ordered on 23rd February, 2017 that the respondents pick and take custody of the child. It is against that order that the appellant appealed to this court and set out nine grounds of appeal. The said grounds may be collapsed into two being that; the trial court erred in putting emphasize on the parent's right to custody of the child while ignoring the principal of the best interest of the child and that the trial court erred in failing to accord the minor a chance of being heard notwithstanding her statement that was on record which set out cruelty and abuse the minor had undergone.

3. It was the respondent's claim in their supporting affidavits that the child went missing on or about 4th October, 2017. That they struggled to get her from the appellant but they discovered that she was working as a house help in Nairobi under the appellant's authority. The children's officer they reported the matter to asked the appellant to produce the child but she resulted into using threats and abusive language.That since both of them as parents are still alive, they are capable of taking care of the child. The 2nd respondent in his further supporting affidavit denied the depositions made by the appellant in her affidavits.

4. In her replying affidavit the appellant deponed that the 2nd respondent, is her brother. That its him who brought the child to her on 4th October, 2016 with motor vehicle registration No. [particulars withheld] Toyota Sienta after asking her to get a school for the child near her work place of which she did at [particulars withheld] School in Machakos County. She denied the allegations that she had caused the child to be employed as a maid and insisted that the child has never missed school. She denied ever denying the respondents access to or custody of the child.

5. In a 2nd replying affidavit by C G. M, the paternal grandfather of the child stated he was the father of the 2nd respondent. That the child was previously at [particulars withheld] Primary School, Meru but always missed school due to lack of fees. As a result, the 2nd respondent requested the Appellant to help him of which she did. That the 1st respondent had made the 2nd respondent to be summoned to the Children's Office on the allegations of transferring the child to another school under the guardianship of the appellant. That he was later surprised to discover that the two had now teamed up to blame the Appellant. He produced the assistant chief's letter which had details of the 1st respondent’s complaint against the 2nd respondent of abducting the child from school.

6. P K M swore an affidavit to the effect that he was the owner of Motor vehicle registration No. [particulars withheld] Toyota Sienta. That he had employed the 2nd respondent as a driver. That on 4th October, 2016, he allowed the 2nd respondent to borrow his vehicle to take the child to his sister the 2nd appellant, in Machakos.

7. In this appeal, both parties filed written submissions which they relied on. It was submitted by the appellant that the best interest of the child ought to have been the guiding principle and that the wishes of the child ought to have been taken into consideration by the trial court.That the Appellant and her witnesses demonstrated through affidavits that she did not abduct the child but it was the 2nd respondent who took the child to her. That without making a finding on that main cause of action, the trial court failed to hear and determine the application dated 19th January, 2017 before making orders based on the parental right to custody.

8. It was further submitted that the custody of the child was not in issue in both the plaint and application and that the appellant had not claimed to have any superior right over the child over and above that of the parents. That all that the appellant had endeavoured to do was to have the trial court appreciate that by handing over the child to the respondents, the child would effectively leave the school she is registered in as a class 8 candidate thereby making her lose a whole year of study. There would have been no harm in giving the child time to complete her studies at [particulars withheld]. The trial court was blamed for failure to consider the main allegations in the plaint and application regarding the abduction, child trafficking, abuse and child labour.

9. For the respondents, it was submitted that the court has always held that a child of tender age should be maintained by the parents unless they are so irresponsible that they cannot take care of a child. That the respondents in this case are fit and responsible and should be granted permanent custody and actual possession of the child. That the child was registered at [particulars withheld] School for her class eight final examination but the appellant took her away. That while custody should be granted to them, the appellant should maintain and cater for the education of the child and food with Kshs. 3,000/= per month as per the Children's Act No. 8 of 2001. They asked the court to grant them custody, deny the appellant access but she be granted visitation rights during holidays.

9. The court has carefully considered the record and the submissions. The first ground is that the trial court erred by putting more emphasize on the parental right to than the best interest of the child. The record shows the proceedings of the day to be as follows:-

Petitioner1:

Our application 28th January in the supporting affidavit we are able to look after the client.

Petitioner 2:

We are ready to take care of the child.

Mwenda Mwarania

We are opposing the application and depending on 3 replying affidavit by Respondent, below by the grand-father, I know from the former employer of the 2nd applicant the Respondent should have custody. Nothing wrong with a relative in law under customary law for children to live with them.

There was consent that the father asked the sister to find a school[particulars withheld]. The child was taken in October by the father. The parents lied to court that she was abducted. Court summons on the father or the mother complaining the children's departure.

Paragraph 9 of applicants affidavit shows the child was a maid. Child while in school. The child can be brought on Saturday.

Court

The child is ordered to be brought to the applicants on Saturday 25th February, 2017 to the applicant’s home.

The applicant to go collect her.

10. From the foregoing, it is clear that the trial court did not consider or examine the allegations and counter allegations made by the parties before making the orders complained of. There was the serious allegations of abduction and child labour. These were not only denied but were effectively controverted by independent sworn statements of the child’s grandfather and the employer of the 2nd respondent. There was also a statement on record said to have been made by the child. The trial court does not seem to have considered these matters or what would happen to the child once she was removed from the school she enrolled in.

11. On 16th, March 2017, at the hearing of an application for stay, this court interviewed the child in the presence of the Deputy Registrar Hon. Carolyne Obara. Throughout the 30 minutes of the interview, the child was in tears when narrating her story. Indeed the court noted the pain the child was in when recalling her experience while staying with the respondents. The court was then satisfied that the trauma the child was undergoing was too much and she needed peace of mind as she continued to prepare for her year-end examinations. This court then ordered that the child be left to continue with her studies at [particulars withheld] Primary School in Machakos uninterrupted while the appeal is pending and stayed further proceedings in the said Meru CMC Children's case 7 of 2017.

12. Further, at the hearing of this appeal, this court ordered that the Director of Children's Department, Meru undertake home visits on the respondents, the previous school of the child, the appellant's home as well as the school of [particulars withheld] Primary School and carry out interviews with all concerned and file a report. According to the report prepared by Joseph K. Mburu, the Children's Officer, the child is so traumatized with what she has undergone in her life and that the appellant is able to take care of her education. He observed that according to the child, the respondents were unfriendly; that they used to mistreat her when she was with them; that the father tried to rape her and they had attempted to marry her off. This was the same narration the child gave to court during her interview on 16th March, 2017. The report further stated that the head teacher of the child's current school stated that when the father visited the school, the child ran to the teachers for safety to avoid the father and that his visit affected herself morale.

13. The record shows that even after this court ordered a stay of further proceedings in the lower court case, that court proceeded and issued a warrant of arrest against the appellant. The appellant and the child were arrested and placed in custody both at KBC Police Station and Meru Police Station, respectively. This happened before the issues in dispute had been either determined or established. Further, this was before the trial court had either heard the child or had had the advantage of having a home visit report by the Children's Officer prepared and availed to it. This court has on its part had the advantage of having heard the child's own story and read the report of the Children's Officer.

14. Sections 4 (2) and 76 of the Children’s Act provides:

“4. (2) 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.

76. (1) Subject to section 4 where a court is considering whether or not to make one or more orders under this Act with respect to a child it shall not make the order or any other orders unless it considers that doing so would be more beneficial to the welfare of the child than making no order at all.”

15. In view of what the child told the court and the report of the Children's Officer, this court is satisfied that the order of the trial court of 23rd February, 2017 and the subsequent proceedings were wholly erroneous. They were premature and highly prejudicial to the child. They were against the letter and spirit of the Children's Act. They were not in the best interest of the child. They cannot stand. Accordingly, they are hereby set aside.

16. The court is of the view that in the circumstances of this case, it is wholly unnecessary to re-hear the application that was before the trial court. The only way to arrive at the truth and fair determination of the issues in dispute, is for the trial court to try the suit before it. It should examine the parties and their witnesses with a view to arriving at a just and fair determination. It should hear and examine not duly the parties and their witnesses, but also the child and the Children's Officer to determine what is the best interest of the child.

17. Accordingly, the appeal is allowed as follows:-

a) The order of 23rd February, 2017 and all the subsequent proceedings are hereby set aside. The application dated 19th January, 2017 be marked as spent in view of what the court has stated above.

b) Let the matter be fully tried before another court other than Hon. L. Ambasi CM expeditiously and in any event within six (6) months of this decision.

c) The child shall continue to live and school where she has been until the lower court concludes the case.

It is so decreed.

DATED andDELIVERED at Meru this 7th day of December, 2017.

A. MABEYA

JUDGE