[2022] KEHC 1226 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

FAMILY APPEAL NO.E16 OF 2020

HMI..........................................................................APPELLANT/APPLICANT

VERSUS

KBH..............................................................................................RESPONDENT

RULING

1. The appellant/applicant herein moved this court through a Notice of Motion application dated 29th/12/2020 seeking the following orders;

a. Spent

b. That this honourable court be pleased to immediately stay all the proceedings and/or execution process currently ongoing at Tononoka Children’s Court, Mombasa in TONONOKA CHILDREN’S CASE NO.435 OF 2019 pending the full hearing and final determination of the appellant/applicant ‘s appeal lodged herein at the high court of Kenya at Mombasa.

c. That costs of this application be provided for.

2. Upon hearing the appellant/applicant’s counsel Mr.Gichana, the court on 5th March ,2021issued the following orders;

a. That proceedings in TONONOKA CHILDREN CASE NO 432/19 are hereby stayed pending hearing and determination of the appeal herein.

b. That execution of the orders of the Hon. Magistrate issued on 16/12/2020 is hereby stayed pending hearing and determination of the appeal herein.

c. That the minor herein is on temporary basis restored to the mother (applicant) pending hearing and determination of the appeal.

d. That the respondent (father) shall have supervised visitation and access rights to the minor during weekends between 8. 00am and 4. 00pm

e. That picking and return points of the minor shall be at Tononoka Children’s Court under the supervision of the children protection officer Mvita.

f. That the DR to call for the original file from Tononoka Children Court.

g. That order numbers (c) and (d) above shall take effect from the weekend of 13th March 2021.

h. Mention on 11th March, 2021 to confirm compliance.

i. This being a family matter, I make no orders as to costs.

3. I must note that this is an emotive matter that has been highly contested through several applications filed before this court resulting to several orders being issued on diverse dates.

4. The parties herein are involved in a dispute over custody of JRH, a minor in Tononoka Children’s Court No.435 of 2019. This has been and still remains the bone of contestation before this court.

5. During the pendency of the appeal proceedings, parties herein through their respective advocates entered into a consent on 19th May, 2021 which was adopted as an order of the court as follows;

a. That the orders made by this court on 5. 3.2021 and 16. 4.2021 in so far as custody and access rights to the child are hereby revised as follows;

i. That the appellant (mother to the child) and the respondent (father to the child) shall have shared legal and actual custody of the child as hereunder:

ii. That before schools open in July, 2021, the appellant shall have actual custody of the child from Monday at 9. 00 am to Thursday at 4. 00pm.

iii. That the respondent shall take possession of the child from Thursday at 4. 00pm and return the child to the appellant on Monday at 9. 00am.

iv. That when school’s open in July 2021 for the first term, the appellant shall take the child from Sunday at 5. 00pm to Friday 5. 00pm.

v. That the respondent shall take possession from Friday 5. 00pm to Sunday at 5. 00 pm.

vi. During school holidays, the parents shall share equal number of days in staying with the child.

b. That mention on 14. 7.2021 for parties to record further orders regarding maintenance aspect of the child and possibly terminate or settle the pending suit in Tononoka Children’s Court Case No.435 of 2019.

c. That for avoidance of doubt the appellant should take the child today until Thursday 4. 00pm when the respondent shall take over at 4. 00pm and then return him on Monday at 9. 00 am.

d. That the pick-up and drop up point shall be at the children’s officer’s office Mvita Sub County.

e. That the children officer’s social enquiry report is hereby extended to 14. 7.2021 to inform the court on the progress and welfare of the child.

f. That the respondent’s passport deposited in court shall remain so deposited until 14. 7.2021 when the court shall direct or otherwise.

g. That in view of the above consent the application dated 28. 4.21 and 29. 4.2021 are hereby marked as abandoned and therefore spent.

6. Later an issue regarding contempt of court orders arose. The same was dealt amicably dealt thus culminating to recording and adoption of a consent on 30th September,2021 thus providing as follows;

a. That the order of this court dated 19th May, 2021 be adhered to by all parties.

b. That this matter be referred back for further hearing of the pending issues before the trial court.

c. That the respondent to hand over the child to the applicant /appellant by the Sunday 3rd October 2021 at 5. 00pm at Tononoka grounds.

d. That the appeal herein is marked as settled

e. That any other issues that might arise with implementation of the court order of 19th May, 2021 be dealt with before the trial court.

f. That the original file from Tononoka Children’s Court be returned to the trial court for further proceedings.

g. That the media is hereby barred from airing or addressing any issues pertaining to the child unless with court’s permission.

7. The matter was then taken back to the trial court for hearing and determination of the main suit. In the course of proceedings, the trial court issued the following orders on 5th October 2021;

a. That the child to remain in the actual custody, care and control of the father in the interim pending hearing of the application.

b. That the application is certified urgent and to be served for hearing on 19th October, 2021.

8. Feeling aggrieved by the trial court’s orders of the 5th October,2021 the appellant/applicant filed a notice of motion application dated 4th November,2021 seeking the following orders;

a. Spent

b. That pending the hearing and determination of the application the respondent be ordered to give custody of the minor to the applicant/appellant.

c. That pending the hearing and determination of the application herein, the honourable court be pleased to order the children’s officer Mombasa to assist in locating, finding the subject minor and handing him over to the applicant as per the court order of 30th september,2021 with the assistance and security to be provided by the OCS Mombasa police station.

d. That the honourable court be pleased to issue a notice directed to Kevin Barry Hurley to show cause why he should not be committed to serve 6 months imprisonment for disobeying the high court order issued by Hon.Justice J.Onyiego on 30th September, 2021.

e. That in addition to being committed to civil jail, the respondent be ordered to pay a fine.

f. That the honourable court finds and holds the proceedings in the lower court and the subsequent interim orders as regards the application dated 4th October 2021 to be in contempt of the order of the high court.

g. That the orders issued by the Hon.L.K Sindani dated 4th October 2021 in the Children’s Case No.435 of 2019 be vacated.

h. That in the interest of justice and fairness the high court in its supervisory jurisdiction allocates the case to a different judicial officer apart from L.K Sindani.

i. That the costs of this application be provided for.

9. The application is premised on the grounds therein and the supporting affidavit of the appellant/applicant sworn on 4th November, 2021.

10. It’s the applicant’s argument that despite the court granting joint legal custody over the subject herein, the respondent has blatantly refused to allow her to have custody of the minor since 3rd October, 2021 to date thus denying the minor an opportunity to interact with his mother. That the respondent has never delivered the minor to her and has continued to act in wilful and blatant contravention of the said order.

11. That denying her custody of the minor is not in the best interests of the child and that continued disobedience of the court order continues to cause her unnecessary inconvenience. That the orders of this court have not been appealed, stayed or varied and thus the respondent is in contempt of the said orders. She therefore urged the court to allow the application.

12. In response, the respondent filed a notice of preliminary objection seeking to have the application struck out for reasons that;

a. The court in which the application dated and filed on 4th November, 2021 is filed is functus officio as per this court’s orders given on 30th September 2021.

i. The honourable court ordered that any issues that might arise with implementation of the court order of 19th May, 2021 be dealt with before the trial court.

ii. The honourable court has finalized its mandate in the matter to completion and given a recourse for litigants by ordering that all issues arising be handled by the trial court.

iii. The doctrine of functus officio states that once the court has made its decision, it is final and conclusive.

iv. The application herein is an abuse of court process and a direct violation of the order given on 30th septmber,2021

13. I have considered the application herein and the preliminary objection in response. Issues that emerge for determination are:

a. Whether the consent orders of 30th September, 2021 are still valid.

b. Whether this court is functus officio.

14. There is no dispute that the consent orders of 19th May 2021 and those issued on 30th September, 2021 are still valid. Ideally, with that order in place this file was effectively closed and new matters arising out of the same subject would be treated as a fresh issue to be dealt with independently. In the case of SNI v AOF [2020] eKLR thecourt made reference to the case of Frank Phipps & Pearl Phipps v Harold Morrison SCCA 86 of 2008 where Harris JA stated:

“As a general rule, an order obtained by the consent of the parties is binding. It remains valid and subsisting until set aside by fresh proceedings brought for that purpose. Kinch v Walcott and Others {1929} A.C. 482 “The bringing of fresh proceedings would normally be guided on the obtaining of the consent order by fraud, mistake or misrepresentation.”

15. The parties herein entered into a consent which was adopted as an order of the court on 30th September, 2021. The same has not been set aside, reviewed, varied and or vacated thus it is still valid. Furthermore, there are no fresh proceedings before this court challenging the same thus the prayers sought cannot stand in its current form.

16. The Supreme Court in the case ofRaila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR while discussing the doctrine functus officio had this to say;

“We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins ofthe functus officio Doctrine, with Specific Reference to its Application in Administrative Law,”(2005) 122 SALJ 832, has thus explicated this concept:

“Thefunctus officiodoctrine is one of the mechanisms by means of which the law gives expression to the principle offinality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers onlyoncein relation tothe same matter.…The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary)final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

17. The Court of Appeal in the case of Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLRstated thus;

“Functus officiois an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon”

18. Similar position was held in the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLRwhere the court stated that;

“It is clear that the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered and a decree issued, as is the case herein.”

19. This court pronounced itself vide the consent order of 30th September, 2021 and to be specific, consent order no. (d) Marked the appeal settled thus this court cannot revisit and or re-open the matter. Accordingly, it’s my finding that the application before court has no legs to stand on as there is no appeal in place. An appellate court cannot be approached through an application without a substantive suit or appeal. The applicant has no recourse under this file as it was closed hence cannot be re-opened unless the legality of the orders closing it is in question. Accordingly, I am in agreement with Mr. Obonyo that this court is functus officio.

20. The upshot of the above is that the application herein dated 4th November, 2021 is hereby dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 22ND DAY MARCH, 2022

J.N.ONYIEGO

JUDGE