[2023] KEHC 25131 (KLR)

JWMO (Suing through his mother and next friend EBO) v DON (Civil Appeal 82 of 2022) [2023] KEHC 25131 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25131 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 82 of 2022

TA Odera, J

November 7, 2023

Between

JWMO (Suing through his mother and next friend EBO)

Appellant

and

DON

Respondent

Ruling

1. Vide a Notice of Motion Application filed under a Certificate of Urgency and dated 3rd April 2023, the Appellant/Applicant sought the following orders:1. Spent.2. That the Honourable Court be pleased to grant stay of proceedings in the appeal and the previous applications thereof pending hearing and determination of the present application.3. That the Honourable Court be pleased to grant the Appellant/Applicant leave to transfer the suit to the High Court at Milimani, Nairobi for hearing and determination.

2. The Application is accompanied by an affidavit titled “verifying affidavit”. The Appellant through EBO deponed that the issue was born on 7. 2.2018. She deponed that she resided permanently in Nairobi County and that the issue was enrolled in PP2 in [Particulars Withheld] Junior School. She deponed that she was solely responsible for his day-to-day care as she was unable to maintain hiring a house help/caregiver after the Trial Court terminated upkeep from the Respondent. She deponed that she was overwhelmed with the financial obligations as she did not have a stable job and depended on odd jobs. She deponed that due to inflation, the bus fare from Nairobi to Kisii had gone up and she stood the risk of prejudice as she was likely to fail to attend hearing. She deponed that she was unrepresented and lacked the appropriate ICT to follow the matter virtually and ran the risk of having the matter determined against her in contravention of her right to fair trial. She deponed that the High Court Milimani was of equal jurisdiction and therefore competent to hear and determine the matter. She deponed that the Minor stood to be prejudiced if the matter was not transferred to the High Court Milimani, Nairobi.

3. The Appellant/Applicant filed Submissions dated 4. 8.2023 in support of her application. She submitted that this Court had the requisite jurisdiction to allow the application. She submitted that the Respondent was based in the United States of America (USA) and was represented by Counsel. She submitted that she filed the matter in Kisii as she resided in Kisii at the time. She later relocated to Nairobi where she lives and works for gain. She submitted that commuting to Kisii from Nairobi had increasingly become difficult and she was increasingly unable to facilitate movement between the two towns. She submitted that she had other children who were minors under her care. She submitted that the principal factors to be taken into consideration were the balance of convenience; the expenses she incurred when travelling to Kisii for the matter; the interests of justice for the minor as she was likely to abandon the appeal due to undue hardships.

4. The Respondent did not respond to the Application nor did he file submissions.

Determination 5. I have considered the Application and the Appellant/Applicant’s Submissions.

6. Does this Court have jurisdiction to transfer this matter to another Court with concurrent jurisdiction? The answer is in the affirmative. Section 3 of the Civil Procedure Act, Cap. 21 Laws of Kenya provides as follows:3. Saving of special jurisdiction and powersIn the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the being in force.Section 3A of the Civil Procedure Act of the Civil Procedure Act, Cap. 21 provides as follows:3A.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

7. It then follows that under Section 3A of the Civil Procedure Act, this Honourable Court is indeed vested with power to transfer a suit to a Court with concurrent jurisdiction.

8. In the case of Kenya Power & Lighting Company v Njumbi Residents Association & Another [2015] eKLR, the Court arrived at a similar finding. The Court cited the case of In the Matter of the Estate of George M’Mboroki, Meru HCSC No. 357 of 2004, Ouko J (as he then was) held: -“…the court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular, to ensure the observance of the due process of the law, to prevent abuse of process to do justice between the parties.”

9. The Court further cited the case of Rev. Madara Evans Okanga v Housing Finance Company of Kenya, HCCC No. 262 of 2005 where the Court held as follows: -“…the jurisdiction of the Court which is comprised within the term “inherent”, is that which enables it to fulfill itself properly and effectively as a court of law… in sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being reserve or fund of powers, a residual source of powers which the court may draw upon as necessary whenever it is just and equitable to do so, in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression, to do injustice between the parties and secure a fair trial between them.”

10. The Court finally stated “…The conclusion I draw from the account of the above citations is that this court, even where there are no specific provisions to do an act, has inherent and/or residual powers to act in a fair or equitable manner in the interest of justice and/or to ensure the observance of the due process of the law. Therein also lies the power for the court to act to prevent abuse of court process by a party so that fairness is maintained between the parties.” I associate myself fully with the said finding.

11. Indeed, High Courts have over time transferred matters to other High Courts depending on the matter in question. In Kenya Power & Lighting Company v Njumbi Residents Association & Another [Supra], the Court cited the case of Rapid Kate Services Ltd. v Freight Forwarders Kenya Limited & 2 Others [2005] eKLR, 1KLR 292 where Emukule, J stated as follows: -“…the court’s power to transfer proceedings from one court to another is a useful corrective to ensure that proceedings wherever began or whatever forum the Plaintiff had initially chosen, should be dealt with or heard or determined by the court most appropriate and suitable for those proceedings. When making or refusing an order for transfer the court will have regard to the nature and character of the proceedings and, the nature of the relief or remedy sought, the interest of the litigants and most important, the administration of justice…. It is a matter of discretion for the judge and it must be for compelling reasons which would be for the purpose of ensuring justice and this is all within the inherent powers of court under Section 3A…whereas there is no express provision in the Civil Procedure…. for the transfer of cases from one High Court to another, it does not mean that in a proper case the court cannot transfer a case before it to another registry of the High Court…”

12. I, therefore, find and hold that I have jurisdiction to order transfer of cases form this court to the other High Courts sought by the Appellant/Applicant.

13. It is a discretionary power which power must be exercised judiciously.

14. As observed in the case of Rapid Kate Services Ltd. v Freight Forwarders Kenya Limited & 2 Others [Supra], the test, albeit not conclusive, is:a.the nature and character of the proceedings;b.the nature of the relief or remedy sought;c.the interest of the litigants; andd.most importantly, the administration of justice.

15. In view of the fact that this appeal relates to a child, particularly, and the issue herein is 5 years old, I will add another consideration being the interests of the child in light of Sections 2, 8 of the Children Act and Article 53 of the Constitution of Kenya, which in fact should be the primary consideration herein.

16. The Appellant/Applicant herein appealed against the decision of the Trial Court with regard to the responsibilities apportioned to her which she considered excessive, failing to explain the fees payments to be made, failure to award monthly maintenance, failure to admit and/or consider the agreement before the Children’s Office, failure to make clear guidelines on the Respondent’s access among others. I further note that vide an Application dated 20. 12. 2022, the Appellant stated that the Minor had missed school for the whole of Term 3 2022, was experiencing recurrent health complications which required frequent emergency medical attention and/or referral for specialized medication attention among other reasons.

17. To my mind, the Minor’s best interests will be served by a timely, efficacious, expedient determination of the instant appeal. This will only be done by having the instant appeal determined by this Court. In making this finding, I note that the Appeal herein was lodged on 12. 10. 2022. I further note that the Record of Appeal was lodged on 9. 12. 2022. What ideally is left, would be to take directions on the Appeal. Judiciary has since dedicated the month of November of every year for expediting children matters in their best interest. This court has also scheduled a service week between 4th and 8th of December this year and I note that the appeal has already been admitted and what is pending is directions on hearing of the appeal and a hearing date.

18. Transferring this matter, on the other hand, would entail a process which would again delay this matter to the Minor’s prejudice. Indeed, in Re Estate of RNM (Minor) [2020] eKLR, the Court was of a similar opinion that transferring the case to Millimani would delay the determination of the case, which finding I agree with wholly.

19. I take note of the Appellant’s apprehension of the financial difficulties entailed in pursuing this matter. As it stands now, the Courts have embraced technology and we have since moved into the digital space. Court sessions are held both virtually and physically and there is no longer need to visit the Court premises physically, which means that the Appellant can attend Court remotely.

20. It is thus my considered view that this case will be heard and determined expeditiously in this Court as opposed to Milimani Law Courts. It is clear that the applicant appellant is forum shopping which cannot be entertained by this court. I therefore find the Appellant’s Application is unmerited and I hereby proceed to dismiss it. With no orders as to costs.

21. I note that the respondent was served with a notice of this ruling notice and return of service is filed herein. In the best interest of the child herein and for expediency, I direct that;A.This matter proceeds by way of written submissions.B.Appellant to file and serve submissions by 16. 11. 23C.Respondent to file and serve submissions by 24. 11. 23 parties appear before this court for directions on 27. 11. 23 and this matter be listed for hearing on 4. 12. 23 during the service week. Notice to issue to respondent.

DATED, DELIVERED AND SIGNED AT KISII THIS 7TH DAY OF NOVEMBER, 2023. T. A ODERAJUDGEIn the presence of:Appellant/Applicant in PersonN/A for the RespondentCourt Assistant – Alex Oigo