[2004] KEHC 2289 (KLR)
The court found that the proceedings in the lower courts were fundamentally flawed due to failure to serve the applicant, who was outside the jurisdiction of Kenyan courts, and failure to consider the best interests and welfare of the child as required by law. The court held that the principles of natural justice...
Source-derived case information.
- Citation
- [2004] KEHC 2289 (KLR)
- Parties
- Appellant: Habib Ahmed Salim; Respondent: Sumaiya Habib Ahmed Salim (suing thro’ her mother & next friend Alye Ali Abdi Sheikh)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 16 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed.
- Legal Topics
- Child Custody, Service of Process, Stay of Proceedings, Welfare of the Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Habib Ahmed Salim
Appellant
Sumaiya Habib Ahmed Salim (suing thro’ her mother & next friend Alye Ali Abdi Sheikh)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the proceedings and orders of the lower courts were fatally flawed due to lack of service and disregard for the welfare of the child.
- 2 Whether a stay of proceedings should be granted to prevent the appeal from being rendered nugatory.
- 3 Whether the principles of natural justice were violated by making orders without hearing the applicant.
Ratio Decidendi
The court found that the proceedings in the lower courts were fundamentally flawed due to failure to serve the applicant, who was outside the jurisdiction of Kenyan courts, and failure to consider the best interests and welfare of the child as required by law. The court held that the principles of natural justice were violated as the applicant was not heard before adverse orders were made. The court further determined that denying the stay would cause substantial loss to the applicant and render the appeal nugatory, while no demonstrable harm would be suffered by the child pending the appeal, as she had been residing with the applicant without complaint. Consequently, the court granted...
Court Disposition
Application for stay of proceedings allowed.
Orders
- Stay of all proceedings in Malindi Children Court No.113 of 2003 pending hearing and determination of the appeal.
- Each party to bear its own costs of this application.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 16 OF 2004
HABIB AHMED SALIM…………………………………..APPELLANT
=V E R S U S=
SUMAIYA HABIB AHMED SALIM
(suing thro’ her mother & next friend)
ALYE ALI ABDI SHEIKH…………………………….RESPONDENT
R U L I N G
Application before the court is dated 19/2/04. It is brought under the provisions of Section 3A Civil Procedure Act, Order XLI rule 4(1) Civil Procedure Code. Order L rule 1 Civil Procedure Code the main order sought is to stay hearing of entire proceedings in Malindi Children Court No.113 of 2003 before Subordinate Court pending hearing of an appeal filed by the Applicant herein against an Order made in that case by Hon. Resident Magistrate at Malindi.
The grounds upon which the application is based are written on the application and are that the Applicant stands to suffer irreparably unless execution of the said orders are stayed and the intended appeal will be rendered nugatory. That it would be difficult to obey the court order made by subordinate court against the Applicant in that the orders are supposed to be implemented outside the territorial boundaries of Kenya. That there is no jurisdiction and there is bias on the part of Children’s Court.
The Affidavit in support shows that the Applicant has filed Civil Appeal No.16 of 2004 in this High Court.
The Appellant is the father of a child Sumaiya Habib Ahmed Salim on whose behalf the proceedings were instituted by her mother as “next friend” . On 14/11/2003 in the Children’s Court order was made:-
“That the Defendant hereby is ordered to produce the Plaintiff child before court on 19/12/03. ”
The Applicant swears that at the time the order was made he was outside the country and it is only when he returned on 16/1/04 when he saw the order and proceedings referred to. He says it is also the time he saw proceedings in Kadhi’s Court No.132 of 2003 in which orders were made against him in his absence. It is in the Chief Kadhi’s Court that divorce was granted and the custody of the child granted to the mother.
I have perused the record of Chief Kadhi’s proceedings. It is stated that the Applicant resides in Saudi Arabia and works there and since 2001 when the wife left the family in Saudi Arabia the Applicant and the child have never returned to Kenya. Until his return the proceedings and orders were never served upon him.
It is to be noted that the address of the Applicant in Kadhi’s records was given as P.O. Box 60516, Riyadh, Kingdom of Saudi Arabia, 11555.
I am urged to grant orders so that the appeal filed against the order is not rendered nugatory.
I have perused the grounds of intended appeal. I have also perused the whole record of proceedings before both lower courts and it is my view that the proceedings were fatally flawed. There was no material laid before the court as to the best interests of the child. Both courts ignored the cardinal principal that in considering any case in which matters of children are the issue the paramount consideration is the welfare of the child.
Furthermore, the proceedings were never served upon the Applicant who was admittedly out of jurisdiction of Kenya courts. The procedure of service process out of the country as laid out was completely ignored. That means the orders were made before hearing the other party. The principles of rules of natural justice were not followed.
Considering the above I am satisfied that the Applicant has a reasonable appeal which would be rendered nugatory by further proceedings in the lower court. I also come to the conclusion that in the circumstances of this case to deny the order sought would cause the substantial loss to the Applicant by subjecting him to orders made in contravention of rules of procedure.
Upon perusing the material before me I do not see any damage that can be suffered by the child pending these proceedings. She has been residing with the father since November 2001. There are no complaints made on account of her welfare.
I therefore allow the application and grant orders prayed for.
Each party to bear its own costs of this application.
Dated at Mombasa this 15th day of March, 2004.
JOYCE KHAMINWA
J U D G E
Ruling read on 15/3/04 in presence of:-
Mr. Kinyanji
Mr. Machuka holding brief for Mr. Mouko.
JOYCE KHAMINWA
J U D G E