[2017] KEHC 9800 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

MISCELLANEOUS APPLICATION NO. 4 OF 2017

J M ….……...….……….......................DEFENDANT/APPLICANT

VERSUS

A N J N .………….……………….……............... RESPONDENT

AND

IN THE MATTER OF TONONOKA CHILDREN’S CASE NO. 193 OF 2016

D K N………….......................GUARDIAN AD LITEM/PLAINTIFF

VERSUS

J M……...….……….….............................................DEFENDANT

RULING

1. In the Application before me dated 6. 2.17, J M (“the Applicant”) herein seeks in the main the transfer of Tononoka Children’s Case No. 193 of 2016 (“the Suit”) filed against him by D K N (“the Respondent”) to the Children’s Court at Milimani Law Courts in Nairobi for hearing and final determination.

2. According to the pleadings filed in the Suit, the Respondent and child’s mother A N J N, the Interested Party herein lived together as husband and wife until 2012 when she moved to Nairobi. They had a child together known as R K K. The Interested Party went to the United States of America on 4. 4.15 after getting a green card leaving the child in Nairobi with the Applicant, who is her step brother. The Respondent claims that he has been denied access to the child both at the Applicant’s home and at school. He now seeks custody of his child.

3. The grounds upon which the present Application is premised are that at the time the Suit was filed, both the child and the Applicant resided in Ongata Rongai. The child is in pre-unit at [particulars withheld] within Nairobi area. Milimani Law Courts in Nairobi is therefore the nearest Children’s Court. The Interested Party is financially constrained since she is the one who takes care of all the needs of the minor. The time, money and resources that will be utilized by the Applicant and the Interested Party to attend Court in Mombasa can be better utilized in meeting the needs of the child. It is further stated that the filing of the Suit in Mombasa was intended to frustrate the Applicant and the Interested Party who are financially constrained. Further given the child would be required to attend Court regularly it would be prejudicial for the child to be forced to travel all the way to Mombasa. It would therefore be in the best interests of the child that the matter be transferred to the Children’s Court at the Milimani Law Courts in Nairobi.

4. The Respondent by his Replying Affidavit opposes the Application. He avers where the child was born and lived with both his parents in Migadini, Mombasa before his mother left the Country and left the child with the Applicant. For that reason, the Suit is filed in the right Court within jurisdiction. The Respondent also lives and works in Mombasa. The Respondent further states that the Applicant transferred the child from [particulars withheld] with the sole aim of denying the Respondent access to the child. The Interested Party left for the United States of America on 4. 9.15 but returned briefly and attended Court but left again on 27. 1.17. He is the only parent living in the Country and within the jurisdiction of the Tononoka Children’s Court. The child requires parental love and support from the Respondent who is the biological father. The Applicant and the Interested Party managed to filed documents and attend Court in the Suit and that the expenses incurred by them are not as important as the interests of the child. According to the Respondent, the Application is intended to frustrate his efforts to raise his child in a family environment. He prayed that the Application be dismissed so that the Suit can proceed for the child to get justice.

5. I have considered the Application, the rival submissions in which the parties reiterated what they had deponed to in the respective affidavits. I have also considered the relevant law and the authorities cited. The Applicant was represented by Mr. Ngulu while the Respondent was in person.

6. The law relating to transfer of suits is contained in Section 18 of the Civil Procedure Act. Section 18(1)(b)(ii) which gives the Court discretionary powers as follows:

“(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—

a. …

b. withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—

i. try or dispose of the same; or

ii. transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

7. The thrust of the Applicant’s case is that hardship will be visited upon the child who schools in Nairobi if the Suit continues in Mombasa. His right to education will be compromised by Court attendances in Mombasa. This issue of cost of travel by the Applicant to defend the Suit in Mombasa has also been advanced as a ground for the transfer of the same. The Respondent on the other hand contends that he filed the Suit in Mombasa out of frustration and denial of access to the child by the Interested Party who resides out of the country.

8. Section 15 of the Civil Procedure Act Provides:

Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—

a. the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or

b. any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution;or

c. the cause of action, wholly or in part, arises.

9. It is not disputed that the Applicant and the child reside in Nairobi. While exercising its discretion set out in Section 18 of the Civil Procedure Act, the Court will be mindful of the balance of convenience, questions of expense, interests of justice and possibilities of undue hardship that may be occasioned to the parties. These principles were set out in the case of Kageny v. Musiramo & Another [1968] E. A. 43 as follows:

“It is a well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make a strong case to the satisfaction of the Court that the application ought to be granted. There are also authorities stating that the principle matters to be taken into consideration are balance of convenience, questions of expense, interests of justice and possibilities of undue hardship; and if the Court is left in doubt as to whether under all circumstances it is proper to order a transfer, the application must be refused.”

10. Mulla in the Code of Civil Procedure (2012) 18th ed. at p. 391 while expounding Sections 20(a) and (b) of the Indian Civil Procedure, the equivalent of Section 15 of our Civil Procedure Act observes:

“The principle underlying s 20(a) and s (20)(b) is that the suit is to be instituted at the place where the defendant can defend the suit without undue trouble.”

11. Further and most fundamentally, the Suit involves a child. The best interests of the said child are of paramount importance and supersede the rights and interests of the parties herein. While the Court appreciates the frustration of the Respondent, it is nevertheless bound by the paramountcy principle enshrined in the Constitution of Kenya, 2010 and the Children Act. Article 45(3) of the Constitution provides:

“A child’s best interests are of paramount importance in every matter concerning the child.”

While the Children Act at Section 4(2) and (3) provides:

(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration…”

12. Having taken into consideration the questions of expense, interests of justice and possibilities of undue hardship on both the Applicant and the child, I am satisfied that the Applicant has made a strong case for the transfer of the Suit. The balance of convenience tilts in favour of the Applicant. The Suit ought to have been instituted at the place where the Applicant can defend the same without undue trouble. It is also the view of this Court that the continuation of the Suit in Mombasa will go against the principle of safeguarding and promoting the welfare of the child. Considering the best interest of the child therefore, I determine that the best forum for the resolution of the Suit would be in Nairobi. I consequently allow the Application dated 6. 2.17 with the result that Tononoka Children’s Case No. 193 of 2016 be and is hereby withdrawn and transferred to the Children’s Court at Milimani for hearing and final disposal. There shall be no orders as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 1st day of December 2017

_________

M. THANDE

JUDGE

In the presence of: -

………………………….......... for the Applicant

……...………………………... for the Respondent

………………………………...Court Assistant