[2019] KEHC 11010 (KLR)
The court determined that the issues raised by the Applicant regarding custody are weighty and require a full hearing. In the interim, it is in the best interests of the child to maintain the status quo, with custody remaining with the Applicant, until the application for stay is heard and determined. The court also...
Source-derived case information.
- Citation
- [2019] KEHC 11010 (KLR)
- Parties
- Applicant: JNK; Respondent: JWM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Interim stay granted; status quo on custody maintained pending hearing.
- Judges
- LK Kimaru
- Legal Topics
- Child Custody, Best Interests of Child, Interim Orders, Parental Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JNK
Applicant
JWM
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the Applicant is entitled to a stay of the Children’s Court order directing surrender of custody to the Respondent pending appeal.
- 2 What interim arrangements best serve the welfare and best interests of the child pending determination of the application.
Ratio Decidendi
The court determined that the issues raised by the Applicant regarding custody are weighty and require a full hearing. In the interim, it is in the best interests of the child to maintain the status quo, with custody remaining with the Applicant, until the application for stay is heard and determined. The court also recognized the Respondent’s right to access and ordered supervised visitation, while directing the Children’s Officer to prepare a report on the child’s welfare. The court emphasized that the welfare and best interests of the child are paramount and that interim measures should not prejudice the substantive hearing of the application.
Court Disposition
Interim stay granted; status quo on custody maintained pending hearing.
Orders
- Stay of proceedings in Thika Children’s Court Case No.191 of 2018 pending hearing and determination of the application for stay.
- Custody of the subject to remain with the Applicant pending further orders.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
KIAMBU H.C. CIVIL APPEAL NO.3 OF 2019
(Arising From the Thika Children’s Case No.191 of 2018)
JNK......................APPLICANT
VERSUS
JWM..................RESPONDENT
RULING
It is clear from the submission made that the custody of the subject is currently with the Applicant. He has had the custody of the subject since November 2016. The Applicant is aggrieved by the decision of the Children’s Court directing that he surrenders custody of the subject to the Respondent. This court is aware of its primary mandate in determining any issue concerning the welfare of a child: It is the best interest of the child that should be of paramount consideration to the court. That is not to say that the rights that accrue to parents by virtue of their status should be overlooked. This court is of the view that the issues raised by the Applicant in this application are weighty and require the full hearing of the application. In the interim, status quo in respect of the custody of the subject should be maintained. The concerns raised by the Respondent shall be addressed in the orders that shall be made in the Ruling.
In the premises therefore, this court issues the following orders:
(I) There shall be a stay of proceedings of Thika Children’s Court Case No.191 of 2018pending the hearing and determination of the application for stay of the said court’s orders on 25th February 2019.
(II) The custody of the subject shall remain with the Applicant pending further orders of this court.
(III) The Children’s Officer, Thika shall be allowed access to the child and to the home where the child resides so that a report can be prepared regarding how the child is being taken care of. The report shall be submitted to the court by 25th February 2019.
(III) The Respondent shall have supervised access to the child on every Saturday beginning 2nd February 2019 at a place that shall be agreed between the Advocates for the Applicant and the Respondent. The access shall be for three (3) hours from 11. 00 a.m. to 2. 00 p.m. until further orders of the court.
(IV) The parties shall be at liberty to apply.
DATED AT NAIROBI THIS 30TH DAY OF JANUARY 2019
L. KIMARU
JUDGE