[2022] KEHC 590 (KLR)

In RJ– LD (Minor) (Miscellaneous Application 89 of 2019) [2022] KEHC 590 (KLR) (Family) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 590 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Application 89 of 2019

AO Muchelule, J

May 12, 2022

IN THE MATTER OF THE GUARDIANSHIP AND CUSTODY OF R.J.– L.D. (MINOR)

Between

MWM

Applicant

and

CAD

Respondent

Ruling

1. The background of this cause is that the respondent C.A.D. and TK are the father and mother, respectively, of the child RJ-LD. The child was born to them on 2nd November 2017 in New York in the United States of America. The parents of the child are American citizens, although TK is a Kenyan. The child is consequently an American citizen.

2. The respondent and TK lived together in New York between 2016 and 2017. There was intention to get married but things did not work out. In 2019 the respondent left the apartment he was sharing with TK. TK was left with the child. In April 2019 the Family Court of the State of New York declared the respondent was the child’s biological father. The court asked him to make support payments for the child. This was at the request of TK.

3. In 2019 TK and the child came to Kenya to live with the applicant MWM. She is the mother of TK, and therefore the child’s grandmother.

4. In New York Family Court, there is a pending suit by the respondent seeking the custody of the minor. There are orders by the court directing the child now living with the applicant to be returned to the United States of America.

5. Before this court is the originating summons dated 27th May 2019 by the applicant seeking that this court appoints her as guardian of the child, and that the child be made ward of this court. The summons was filed through Kamau Kuria & Co. Advocates. It was stated therein that TK was forced to come to Kenya with the child following desertion by the respondent who had denied them financial support when she was herself not employed. On 29th March 2019 T.K left the child with the applicant and returned to the United States of America to seek employment. The applicant’s case was that, given the circumstances that the child finds herself in, this court should under section 105 of the Children Act and under private international law protect him by appointing her as his guardian and also by making him the ward of this court. She stated that she has the means to advance the best interests of the child.

6. The originating summons was filed under rule 3 of the Guardianship of Children (Practice and Procedure Rules) 2002 made under the Children Act (No. 8 of 2001). There have been subsequent applications following the originating summons.

7. On 7th July 2021 this court directed the parties to address it on the issue of its jurisdiction to hear and determine the question of guardianship of the child. In view of rule 3 of the Rules and sections 73 and 102 of the Act, Dr. Kamau Kuria (S.C.) for the applicant and Mr. Andiwo for the respondent addressed the court through their written submissions, which I have read through and considered.

8. The question of the jurisdiction of the court to hear and determine the dispute before it may be raised by a party to the dispute or by the court on its own motion. Once raised, it must be determined forthwith on the evidence before it. This is what the Court of Appeal in the Owners of the Vessel “Lilians” v Caltex Oil (Kenya) Ltd [1989]eKLR. In the case, Justice Nyarangi explained the importance of jurisdiction in the following terms:-“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

9. The Supreme Court of Kenya in Re the Matter of the Interim Independent Electoral Commission [2011]eKLR made reference to the above decision and observed that:-“Assumption of jurisdiction by courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid down in judicial precedent.”It stated that a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of the legislation is clear and there is no ambiguity.

10. Article 165 (3) of the Constitution provides: -“Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;”

11. The dispute herein substantially relates to the guardianship of the minor RJ – LD. Dr. Kamau Kuria (SC) submitted that the court has jurisdiction to hear and determine the dispute. He referred to the High Court decisions in Misc. Appl. No. 1 of 2018 at Naivasha, In the Matter of an Application for Guardianship of BJK, BCK, GJK and NKC Case No 2 of 2019 at Kabarnet and Misc. Application No E1 of 2020; Mariam Shighadi Mwashighadi v James Gonza Mwashighadi at Voi in which guardianship of minor children was granted by the respective courts. I have read the decisions. The issue of the jurisdiction of the High Court to hear and determine the question of guardianship of a child was never raised or dealt with.

12. Senior Counsel made reference to section 73 of the Children Act that gives jurisdiction in children matters to the Children Court, but indicated that such court was subordinate to the High Court and that, in any case, the High Court supervises such Children Court. The Children Court is subordinate to the High Court, and the High Court supervises it but the applicant has not invoked the supervisory powers of the High Court.

13. Senior Counsel made reference to the English High Court in the Chancery Division which he observed served as the supreme parent of children in situations where they require protection. He argued that such power was not in England donated to subordinate courts. He made reference to the English decision in R v Gyngall (1892) 2 QB 232 which was followed in RGM an infant ]1957]EA 714. The ratio in the decisions was that the court is placed in a position to act as supreme parent of the child.

14. According to the respondent, the enactment of the Children Act, and specifically in its sections 73 and 102, created the Children Court that had original power to determine questions of guardianship of a child. Any party aggrieved with the determination can appeal to the High Court. The respondent’s counsel therefore submitted that the originating summons was filed before the wrong court; that it ought to have been filed before the subordinate court.

15. The Children Act is -“An Act of Parliament to make provisions for parental responsibility, fostering, adopting, custody, maintenance, guardianship, care and protection of children; to make provisions for the administration of the Children’s institutions; to give effect to the principles of the Convention of Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes.”

16. Section 73 of the Act provides as follows: -There shall be courts to be known as Children’s Courts constituted in accordance with the provisions of this section for the purpose of—(a)conducting civil proceedings on matters set out under Parts III, V, VII, VIII, IX, X, XI and XIII;(b)hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years;(c)hearing a charge against any person accused of an offence under this Act;(d)exercising any other jurisdiction conferred by this or any other written law:Provided that—(i)reference to subordinate courts of any class, in the First Schedule to the Criminal Procedure Code (Cap. 75), shall include a Children’s Court;(ii)the Chief Justice may, by notice in the Gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country;(iii)where in the course of any proceedings in a Children’s Court it appears to the court that the person charged, or to whom the proceedings relate, is over eighteen years of age, or where in the course of any proceedings in any court other than a Children’s Court it appears to the court that the person charged or to whom the proceedings relate, is under eighteen years of age, nothing in this section shall prevent the court, if it thinks fit, from proceeding with the hearing and determination of the case;(iv)where any conviction or sentence made or passed by a court other than a Children’s Court is appealed against or is brought before the High Court for confirmation or revision and it appears that the person convicted was at the time of the commission of the offence under eighteen years of age, the High Court shall have power to substitute for the conviction a finding of guilty in accordance with section 196 and substitute for the sentence an order under section 125(2) of this Act.

17. It is clear that under section 73(a), the Children Court is given jurisdiction over civil matters under Part VIII. Under Part VIII, those matters relate to guardianship of a child. Section 102 defines who a guardian is and gives the circumstances under which a guardian may be appointed.

18. It is clear that under sections 73 and 102 of the Children Act, it is the Children Court that has the original jurisdiction to hear and determine all civil disputes relating to the guardianship of a child. It is the court to determine an application made seeking the appointment of a guardian of a child.

19. There is the argument by the applicant that Children Court is subordinate to this court and that, in any case, this court has unlimited original jurisdiction in civil matters. The argument, when stretched to its logical conclusion, means that what the children court can hear this court can hear it.

20. The Constitution creates the High Court. In its Article 169 it creates subordinate courts, which include the magistrates court. Under Article 169(2) parliament is empowered to enact legislation conferring jurisdiction, functions and power to subordinate courts. A Children Court is a magistrate’s court. Under the Children Act, Children Courts have been established and under section 73 of the Act, the jurisdiction of the courts being prescribed. Under sections 73 and 102 of the Act it is the Children Court that has the jurisdiction to hear and determine disputes relating to guardianship of children. If a party is aggrieved by that determination, he can approach the High Court on appeal.

21. It is evident that the Children Act has given the Children Court the jurisdiction to hear and determine matters relating to the guardianship of a child. In other words, the applicant, who is seeking to be appointed as the guardian of RJ – LD, has been provided by the Children Act a court (the Children Court) that has the primacy and original power to hear and determine the dispute. She has an effectual remedy under the Act to deal with her grievance. Although the Constitution gives the High Court unlimited original jurisdiction in civil matters, the Children Act has directed that all disputes relating to the guardianship of a child have to be heard and determined by the Children Court as the first port of call. In other words, the jurisdiction of the High Court has been ousted by an Act of Parliament (Narok County Council v Trans Mara Country Council & another, Civil Appeal No 25 of 2000).

22. The English legal regime that donated jurisdiction to the High Court in the Chancery Division in matters relating to guardianship and general protection of children is of little relevance given the Constitution and the Children Act that have provided the jurisdiction in those matters to the Children Court.

23. In conclusion, I determine that this court has no jurisdiction to hear and determine the dispute raised in the originating summons dated 27th May 2019 by the applicant.

24. Costs shall be borne by the applicant.

25. The applicant has 30 days to appeal this decision to the Court of Appeal.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022A.O. MUCHELULEJUDGE