[2008] KEHC 2149 (KLR)
Although the Civil Procedure Act provides for suits to be instituted where the defendant resides or works, the overriding consideration in matters under the Children Act is the best interest of the child. The court found that continuing the hearing at Meru, as originally instituted, best serves the child's...
Source-derived case information.
- Citation
- [2008] KEHC 2149 (KLR)
- Parties
- Applicant: Francis Cheptumo Komen; Respondent: Consolata Ekwel Lomilio
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 115 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- Application to transfer suit dismissed.
- Judges
- SP Ouko
- Legal Topics
- Transfer of Suit, Jurisdiction, Best Interest of Child, Maintenance Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Cheptumo Komen
Applicant
Consolata Ekwel Lomilio
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether Meru CM Children Case No. 62 of 2007 should be transferred to Nyeri CM Children Court for hearing and determination.
- 2 Whether the transfer would serve the best interest of the child as required by the Children Act.
Ratio Decidendi
Although the Civil Procedure Act provides for suits to be instituted where the defendant resides or works, the overriding consideration in matters under the Children Act is the best interest of the child. The court found that continuing the hearing at Meru, as originally instituted, best serves the child's interests, especially given the respondent's residence in Isiolo, the absence of a children court at Isiolo, and Meru's central location. The application to transfer the case to Nyeri was therefore declined.
Court Disposition
Application to transfer suit dismissed.
Orders
- Meru CM Children Case No. 62 of 2007 shall continue to be heard at Meru.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Misc. Appli. 115 of 2007
FRANCIS CHEPTUMO KOMEN …………………….. APPLICANT
VERSUS
CONSOLATA EKWEL LOMILIO ……………………. RESPONDENT
RULING
The respondent herein filed a claim against the applicant in the Children Court at Meru being C.M. Children Case No. 62 of 2007 for maintenance. The applicant who works in Nyeri is seeking in the instant application that the said Meru CM Children Case No. 62 of 2007 be transferred to Nyeri CM Children Court for hearing and final determination.
The application is premised on the ground that in the interest of justice it is only fair to transfer the case to Nyeri where the applicant resides and works. That no prejudice will be caused to the respondent.
In her replying affidavit the respondent has averred that she resides at Isiolo and that she filed the cause at Meru due to its central location and convenience. That there is no children court at Isiolo and further that if the cause is transferred to Nyeri she stands to suffer prejudice.
I have considered both sides of the argument and hold the following view of the matter. This court (Lenaola, J) on 31st October 2007 recorded a consent staying proceedings in Meru CM Children Case No. 62 of 2007 pending the hearing and determination of this application.
The application is expressed to be brought under Order 50 Rule 1 of the Civil Procedure Rules and sections 3A and 15 of the Civil Procedure Act. The provisions of sections 15 and 18(1) (b) (ii) of the Civil Procedure Act must be read together with the Children Act as a whole. Although section 15 aforesaid provides that a suit must be instituted in a court within the local limits of whose jurisdiction the defendant actually lives or works for gain, the policy consideration underlying the provisions of the Children Act is that whatever orders are sought; the court in considering the same must be guided by the principle of the best interest of the child.
In my view, it is in the best interest of the child that Meru CM Children Case No. 62 of 2007 continues to be heard at Meru.
I so order and make no orders as to costs.
Dated and delivered at Meru this 3rd …day of…June……. 2008
W. OUKO
JUDGE