[2012] KEHC 3153 (KLR)
The court found that the applicant failed to provide any material or proof that the presiding magistrate was biased or that the best interests of the children were not being considered. The mere allegation of bias, without supporting evidence, is insufficient to justify the transfer of the case. The court emphasized...
Source-derived case information.
- Citation
- [2012] KEHC 3153 (KLR)
- Parties
- Applicant: Livingstone Waiyaki Karanja; Respondent: Beatrice Wanjiru Gititu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 87 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed with costs
- Legal Topics
- Transfer of Proceedings, Children Custody, Judicial Bias, Best Interest of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Livingstone Waiyaki Karanja
Applicant
Beatrice Wanjiru Gititu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether there is sufficient evidence of bias by the presiding magistrate to warrant transfer of the children case.
- 2 Whether the best interests of the children are being disregarded by the current court.
Ratio Decidendi
The court found that the applicant failed to provide any material or proof that the presiding magistrate was biased or that the best interests of the children were not being considered. The mere allegation of bias, without supporting evidence, is insufficient to justify the transfer of the case. The court emphasized that if bias were established, it would be a valid ground for transfer, but in the absence of such proof, there is no basis for the application. Consequently, the application for transfer was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for transfer of Children’s Case No.1 of 2010 from Kikuyu Children Court is dismissed.
- The applicant shall bear the costs of this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
Miscellaneous Civil Application 87 of 2011
LIVINGSTONE WAIYAKI KARANJA........................................................................APPLICANT
-AND-
BEATRICE WANJIRU GITITU...............................................................................RESPONDENT
RULING
The Applicant, Livingstone Waiyaki Karanja,seeks transfer of Children’s Case No.1 of 2010 from Kikuyu Children Court to another court of competent jurisdiction. In his application dated 24. 8.2011, supported by his affidavit sworn on that date, the Applicant alleges that the Honourable Magistrate presiding over the case “leans towards the Respondent and does not take the best interest of the Children into consideration.”
The Applicant appeared in person and urged the court on 11. 11. 2011 to grant him the order for the transfer of the case from Kikuyu.
Mr. Karanja, Advocate, of Karanja Otunga & Co. Advocatesopposed the application which he termed as abuse of the court process.
I have perused the application and given due consideration to the submissions made by the Applicant and the Respondent through his counsel. I am unable to find material or any proof that the presiding judicial officer is biased in favour of the Respondent. Nor is there evidence that he does not take into consideration the best interest of the children. If the allegation of bias was true, it would be reason sufficient enough to justify transfer of the case to another court. In the absence of such proof, there is no basis for transfer of the case nor are there grounds either on which the judicial officer in the said court can be said to have acted in a manner that will impede justice.
In these circumstances, I do not find any merit in the application which I hereby dismiss with costs.
Dated at Milimani Law Courts, Nairobi, on this 19th day of January 2012.
G.B.M. KARIUKI, SC
JUDGE
COUNSEL APPEARING
Mr. P. K. Wachira of Karanja Otunga & Associates, Advocates for the Respondent
Mr. David Musyoka, Court Clerk