[2013] KEHC 5214 (KLR)
The court held that while the applicant's medical condition was noted, the paramount consideration in matters involving children is the best interests of the child. Since the child resides and attends school in Mombasa, and may be required to attend court, it is more convenient and in the child's best interests for...
Source-derived case information.
- Citation
- [2013] KEHC 5214 (KLR)
- Parties
- Respondent: Latifa Zena Abdin Ahmed; Applicant: Arif Ali Mohamed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 26 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Child Welfare, Transfer of Proceedings, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Latifa Zena Abdin Ahmed
Respondent
Arif Ali Mohamed
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Children Case No. 717/2012 should be transferred from Tononoka Children's Court, Mombasa to Nakuru Law Courts.
- 2 Whether the applicant's medical condition justifies the transfer of the case.
- 3 Whether the best interests of the child are served by transferring the case.
Ratio Decidendi
The court held that while the applicant's medical condition was noted, the paramount consideration in matters involving children is the best interests of the child. Since the child resides and attends school in Mombasa, and may be required to attend court, it is more convenient and in the child's best interests for the case to remain in Mombasa. The applicant, if required to testify, would only need to make a single appearance, and his advocate can handle other procedures. The court found that the balance of convenience favored the child and dismissed the application for transfer.
Court Disposition
application dismissed
Orders
- The application for transfer of Children Case No. 717/2012 from Tononoka Children's Court to Nakuru Law Courts is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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LATIFA ZENA ABDIN AHMED……........PLAINTIFF/RESPONDENT
VERSUS
ARIF ALI MOHAMED…………..….……DEFENDNAT/APPLICANT
RULING
Before court is the application brought under certificate of urgency seeking the transfer of Children Case No. 717/2012currently pending before the Tononoka Childrens Court to Nakuru Law Courts. The applicant in his supporting affidavit avers that he is unwell and is therefore not able to travel to Mombasa for the hearing of the suit.
The application for transfer is vehemently opposed by the respondent. I have considered the oral submissions made by MR. MWINYIfor the Applicant and MR. MUINDEfor the respondent. The applicant has annexed a medical report indicating that he suffers from depression and is on medication. However, I note that this case involves the welfare of a minor and this court is obliged to rule in the best interests of the child. The child lives with the respondent (his mother) in Mombasa where he also attends school. In view of the fact that the child may on occasion be required to be in court, it is more convenient that the matter be heard and determined where the child resides. On the other hand the applicant even if he is ever required to testify on his own behalf may only need to make one court appearance. Other procedures may be handled on his behalf by his advocate. The fact of depression does not physically prevent the applicant from making one trip to Mombasa in order to testify. If he is not in a fit mental state he is at liberty to seek an adjournment until such time as he has recovered sufficiently to enable him to travel.
In my view the balance of convenience tilts in favour of the child. I therefore dismiss this application for transfer of this case.
No orders on costs.
Dated and Delivered this 8th day of February, 2013.
M. ODERO
JUDGE
In the presence of:
Mr. Mutugi h/b for Mr. Mwinyi for the Applicant
Mr. Muinde for the Respondent