https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11831

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **CIVIL APPEAL NO. E064 OF 2026** **JOSEPH NYAMORI MAINA …………….. APPELLANT/APPLICANT** **VERSUS** **LESLEY GESARE MAKAMARA …..……….………….. RESPONDENT** **RULING** 1. Before this Court for determination is a Notice of Motion Application dated **23rd April 2026** and brought pursuant to Article 53(2) of the Constitution of Kenya, Order 42 Rule 6, Order 51 of the Civil Procedure Rules and Sections 1A, 1B, 3A of the Civil Procedure Act, in which the Applicant seeks the following orders: * 1. **Spent;** 2. **Spent;** 3. **That this Honourable Court be pleased to grant a stay of execution of the ruling and orders given on 20th April 2026 in Milimani Children’s Case No. E116 of 2022, pending the hearing and determination of the Appeal on priority basis.** * 1. **That this Honourable Court make any other or further orders that it deems just and fit to grant.** 2. **That the costs of this application be in cause.** 2. The application is supported by the affidavit of **Joseph Nyamori Maina**, who deposes that, being dissatisfied with the ruling and orders issued on **20th April 2026** in Milimani Children's Case No. E116 of 2022, he has lodged an appeal before this Court. He states that the impugned orders directed him to release the minor's passport and birth certificate to facilitate the minor's travel to Switzerland and France. 3. According to the Applicant, those orders are inconsistent with the existing joint custody and access orders, as the minor's travel would effectively deprive him of the opportunity to exercise his parental rights of custody and access. 4. He further contends that the Children's Court granted the orders on the basis that the minor was travelling to attend a private family event, namely a wedding in France, and relied on assurances and documentation relating to the minor's participation in that event without obtaining sufficient or enforceable guarantees that the minor would be returned to Kenya. He therefore avers that, should the minor leave the jurisdiction before the appeal is heard and determined, the appeal would be rendered nugatory. 5. The Respondent opposed the application through a Replying Affidavit dated **14th May 2026**. She deposes that she is the mother of the two minors and has primary legal custody of them. She states that the intended wedding is that of her biological sister, which is scheduled to take place in Switzerland on 12th August 2026. 6. According to the Respondent, the Applicant is well acquainted with her sister, as she served as one of the bridesmaids during their wedding. She further avers that the minors will be on their school vacation during the proposed period of travel and that she has offered to forfeit her access days so that the Applicant may spend additional time with the children before their departure. 7. The Respondent denies any intention of absconding with the minors and states that she is employed as a Consultant Anesthesiologist at Pumwani Hospital, where she has ongoing professional obligations that require her return to Kenya. She further deposes that the trip is being hosted by her sister and that she placed before the trial Court the invitation letter together with the relevant travel itinerary and supporting documentation. 8. She maintains that the trial Court imposed stringent conditions governing the travel, including the dates of departure and return, the destination, and the place of accommodation, thereby adequately safeguarding the minors' return to Kenya. In her view, there is therefore no reasonable basis for the Applicant's apprehension that the minors will not return. 9. The Respondent further contends that, in the unlikely event that the minors were unlawfully retained outside the jurisdiction, the Applicant has recourse to the available legal mechanisms. 10. She also avers that the proposed travel is in the best interests of the minors as it will expose them to a different environment, broaden their horizons, and enhance their appreciation of international cultures and affairs. She therefore urges the Court to dismiss the application with costs, contending that it has been brought in bad faith and is intended solely to frustrate the minors' attendance at the family wedding. 11. The Applicant filed a Supplementary Affidavit dated **26th May 2026** in response to the Respondent's Replying Affidavit. He reiterates that his concerns stem from the difficulties he has previously encountered in accessing the minors and fears that, should they leave the jurisdiction of the Court, he may be permanently deprived of access to them. 12. He maintains that his apprehension is not directed at the proposed trip itself but at the absence of sufficient safeguards to guarantee the minors' return to Kenya. He therefore urges the Court to impose stringent conditions to secure their return and to safeguard his parental rights of custody and access. **Issues for determination** 13. Whether this Court has jurisdiction to entertain this application and if so, whether the learned trial Magistrate properly exercised her discretion in granting the impugned orders, having regard to the best interests of the minors, the existing custody and access orders, the Appellant's parental rights, and the adequacy of the safeguards to ensure the minors' return to Kenya. **ANALYSIS AND DETERMINATION** 14. I have carefully considered the ruling and orders dated **20th April 2026** issued in Milimani Children's Case No. E116 of 2022, together with the memorandum of appeal, the affidavits and annexures filed by the parties, and the submissions thereto. 15. The first issue for determination is whether this Court has jurisdiction to entertain the appeal. **Section 99(a) of the Children Act, 2022** provides that: ***"Unless otherwise provided under this Act, in any civil or criminal proceedings in a Children's Court, an appeal shall lie—*** ***(a) in the first instance, to the High Court on points of fact and law."*** 16. It is therefore clear that this Court has appellate jurisdiction to entertain appeals from the Children's Court on both points of fact and law. Consequently, I find that this Court is properly seized of the appeal. 17. Having found that this Court has jurisdiction, the remaining issue for determination is whether the learned trial Magistrate properly exercised her discretion in granting leave to the Respondent to travel with the minors to Switzerland and directing the Appellant to release the minors' passport and birth certificate, having regard to the best interests of the minors, the existing custody and access orders, the Appellant's parental rights, and whether adequate safeguards were put in place to secure the minors' return to Kenya. 18. This Court’s duty is to reconsider the evidence that was tendered before the trial Court and to determine whether the findings reached were supported by that evidence, while making allowance for the fact that the trial Court had the benefit of seeing and hearing the witnesses as they testified **(Selle -v- Associated Motor Boat Company Ltd [1968] EA 123)**. 19. Secondly, this Court will not interfere with the exercise of discretion by the lower Court unless it is satisfied that the decision was clearly wrong, because it misdirected itself or because it acted on matters it should not have acted on or because it failed to take into consideration matters which it should have taken into consideration, and in so doing arrived at a wrong conclusion **(Mbogo and Another –v- Shah [1968] EA 93).** 20. The record shows that the Respondent sought leave to travel with the minors to Switzerland for a limited period during the school holidays to attend her biological sister's wedding. In support of her application, she placed before the trial Court an invitation letter, the proposed travel itinerary and the relevant travel documents. The proposed travel was therefore for a specific purpose, for a defined period and was scheduled to coincide with the minors' school vacation. 21. I have carefully considered the Appellant's apprehension that, should the minors leave the jurisdiction of this Court, his parental rights of custody and access may be prejudiced because of the perceived risk that the minors may not be returned to Kenya. 22. While this concern cannot be dismissed lightly, I find that it is not borne out by the evidence on record. The invitation letter clearly identifies the purpose of the trip, the Respondent disclosed the proposed itinerary, and there is no evidence that she intends to relocate permanently or wrongfully retain the minors outside the jurisdiction. 23. On the contrary, the Respondent deposed that she is employed as a Consultant Anesthesiologist at Pumwani Hospital and is expected to resume her professional duties upon her return to Kenya. These are objective factors demonstrating that the intended travel is temporary. 24. The Appellant further contends that he only enjoys access to the minors twice a month and that the proposed travel would deny him that limited opportunity. The record, however, shows that the Respondent offered to forfeit her own access days to compensate the Appellant for the period during which the minors would be away. 25. Moreover, the proposed travel was temporary and was not intended to vary, suspend or permanently interfere with the existing custody and access orders. The temporary interruption of the Appellant's access during the minors' holiday period, in the circumstances of this case, cannot be said to amount to a denial of his parental rights. 26. I have also considered the Appellant's contention that the safeguards imposed by the trial Court were insufficient to guarantee the minors' return to Kenya. The record demonstrates that the learned trial Magistrate considered the purpose of the travel, its duration, the proposed destinations, the supporting documentation, and the Respondent's circumstances before granting leave. 27. The Appellant has not demonstrated that the learned Magistrate took into account irrelevant considerations, failed to consider relevant matters, or exercised her discretion on wrong principles. 28. The Respondent explained to the trial Court that although the wedding ceremony would be held in France, she and the minors would be accommodated in Switzerland, and the relevant travel arrangements were fully disclosed. The Respondent also clarified that the wedding ceremony itself was an adults-only event, thereby explaining the travel itinerary and the arrangements concerning the minors during that period. 29. In the circumstances, the Appellant's apprehension that the minors may not be returned to Kenya remains speculative and is unsupported by any cogent evidence. Mere apprehension, without an evidential basis, cannot be a sufficient ground to deny leave for temporary travel that has been shown to be for a legitimate purpose and to be in the best interests of the children. 30. Accordingly, I find no basis for interfering with the exercise of the learned trial Magistrate's discretion. The impugned orders were made after due consideration of the material placed before the Court and were guided by the paramount principle of the best interests of the minors. 31. I think the only rider to alley any fears that the Respondent may not come back with the children, and which issue was raised by the applicant, is to have the Respondent post a bond which if she breaches the trials Courts orders she will be required to surrender. 32. I have considered the fact that the Respondent is gainfully employed and based on the above observations I find that she will be required to post a personal bond of Kshs. 1,000,000 with a surety of similar amount beside the other conditions set by the trial Court. 33. **The application is otherwise disallowed with no order as to costs and that the Respondent shall forthwith and in addition to the conditions provided by the trial Court provide a personal bond of Kshs. 1,000,000** **with a surety of similar amount which shall stand discharge upon returning to the country with the children.** **Dated signed and delivered via video link at Nairobi this** **30th day of July, 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**