[2022] KEHC 1865 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 111 OF 2020

IN THE MATTER OF AGM AND AM (MINORS)

HMM.…………………………………………………..……...…. APPELLANT

-VERSUS-

AGM.………………………….………………..………………. RESPONDENT

(Being an appeal against the Ruling delivered on 3rd September, 2020 in Kiambu Chief Magistrate’s Court Children’s Case No. 37 of 2019 by Hon. W. Rading, S.R.M.)

RULING

1. There are two applications and a preliminary objection before me for consideration. This is an appeal against Kiambu Children’s court decision of an interlocutory application. This appeal is filed by HMM, the mother of the minor children.

2. The children’s court matter was filed by the father of the minor children. Following several applications filed by the mother and father of the minor children, the children’s court by its Ruling delivered on 3rd September, 2020 inter alia granted actual custody of the two minor children to the mother and access to the father over the weekend. The mother being aggrieved by that order filed this appeal.

3. The mother, in this appeal filed a chamber summons application dated 14th September, 2020. She seeks by that application stay pending the hearing and determination of this appeal. This Court on 17th September, 2020 stayed the children’s court Ruling pending inter partes hearing of the mother’s application.

4. The father also filed an application by chamber summons dated 24th September, 2020 seeking an order to vary the ex parte orders granted to the mother on 17th September 2020.

5. The father also filed a preliminary objection dated 24th September, 2020. But my considerations of the objections raised in the preliminary objection, I find and hold that the objections are not proper preliminary objections because they do not consist of pure points of law. The father raised objections on the grounds that the mother has failed to obey the order made by the children’s court and on the basis that the mother has failed to comply with a gazette notice relating to conduct of hearings before courts during the period of COVID-19 pandemic, and further, that the mother filing the application was intended to frustrate the children’s court hearing. Those objections are not on pure points of law. They require this Court to engage in fact finding. That is contrary to the holding of the case MASIKA BISCUITS MANUFACTURING CO. LTD VS. WEST END DISTRIBUTORS LTD (1969) E.A. 696 as follows:-

“a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

6. Following the above holding, the preliminary objection dated 24th September, 2020 is dismissed with costs.

7. The two applications dated 14th and 24th September, 2020 by the mother and the father respectfully are drawing this Court to determine the merits of the main appeal at interlocutory stage. It follows that not all the issues raised by both parties will form part of my discussion in this Ruling. It suffices for me to state that the mother and father by the time the matter was before the children’s court, had separated. On separation, the two minor children went to live with their mother at the maternal grand-parent’s home. The children as at June, 2020 were 8 and 5 years old. They are children of tender age. Article 53 of the Constitution and Section 4 of the Children’s Act emphasize for consideration the interest of a children in matters relating to children.

8. On a prima facie basis, and because the father failed to avail himself for interview by the Sub-County Children’s Officer, I will accede to the application by the mother and thereby will stay the children’s court Ruling until the final hearing and determination of this appeal.

DISPOSITION

9. The orders of the court are:-

(a) There shall be stay of the Ruling of 3rd September, 2020 at the Chief Magistrate’s Court Kiambu Children’s Case No. 37 of 2019 until the final determination of this appeal. Accordingly, chamber summons dated 14th September, 2020 is allowed in those terms with costs.

(b) The application dated 24th September, 2020 and the preliminary objection of the same date are hereby dismissed with costs.

(c) At the reading of this Ruling, a date for giving directions on the hearing go this appeal shall be fixed by which date the Deputy Registrar of this Court shall obtain the lower court’s file.

RULING DATED and DELIVERED at KIAMBU this 3rd day of MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For appellant : - Absent

For Respondent : - Absent

RULINGdelivered virtually.

MARY KASANGO

JUDGE