MK v BKW (Civil Appeal E209 of 2025) [2026] KEHC 5660 (KLR) (Family) (30 April 2026) (Ruling)

MK v BKW (Civil Appeal E209 of 2025) [2026] KEHC 5660 (KLR) (Family) (30 April 2026) (Ruling)

The Respondent's preliminary objection is structurally incompetent as it is based on disputed facts, violating the Mukisa Biscuit test. The directions issued by the trial court were inter-partes, not ex parte, and Order 51 Rule 15 was inapplicable. The Children Act provides a broader appellate right, and the trial...

Source-derived case information.

Citation
[2026] KEHC 5660 (KLR)
Parties
Appellant: MK; Respondent: BKW
Court
High Court
Jurisdiction
Kenya
Judgment Date
30 April 2026
Case Number
Civil Appeal E209 of 2025
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Legal Topics
Child Custody, Access Rights, Preliminary Objection, Appealability, Exhaustion of Remedies
Source Language
english
Family Law Child Law Civil Procedure Child Custody Access Rights Preliminary Objection Appealability Exhaustion of Remedies

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Summary, issues, holding and outcome

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Parties

MK

Appellant

BKW

Respondent

Procedural Posture

Civil Appeal / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the Notice of Preliminary Objection meets the threshold of a valid preliminary objection in law
  2. 2 Whether the appeal is premature and violates the doctrine of exhaustion of remedies
  3. 3 Whether the directions issued by the trial court are appealable under the Children Act

Ratio Decidendi

The Respondent's preliminary objection is structurally incompetent as it is based on disputed facts, violating the Mukisa Biscuit test. The directions issued by the trial court were inter-partes, not ex parte, and Order 51 Rule 15 was inapplicable. The Children Act provides a broader appellate right, and the trial court's directive had substantive effect by denying urgent access. Therefore, the preliminary objection is dismissed.

Court Disposition

preliminary objection dismissed

Orders

  • The Respondent's Notice of Preliminary Objection dated 10 February 2026 is dismissed.
  • Costs of the Preliminary Objection shall abide the outcome of the appeal.