[2022] KEHC 3137 (KLR)

Mohamud v Abdi (Family Appeal 120 of 2021) [2022] KEHC 3137 (KLR) (Family) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3137 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Family Appeal 120 of 2021

MA Odero, J

June 3, 2022

Between

Adarus Hersi Mohamud

Appellant

and

Sadia Osman Abdi

Respondent

Ruling

1. Before this Court for determination is the chamber summons dated 15th October 2021 by which the Applicant Adarus Hersi Mohamud seeks the following orders:-“1,Spent2. Spent3. Spent4. Spent5. This Honourable Court be pleased to order a stay of execution of the Honourable trial court’s judgment dated 6th October, 2021 delivered by the Honourable G.M. Gitonga (Mr) (PM) in Milimani Children’s Case No. 1618 OF 2015 (Adarus Hersi Mohamud vs. Sadia Osman Abdi) pending the hearing and determination of this Appeal.6. The minors herein, to wit, Mohamed Adarus and ABdimalik Adarus be restrained by an order of this Honourable court from leaving the jurisdiction of this court without the express consent of the Appellant herein pending the hearing and determination of this Appeal.7. The costs of this application be provided for.8. Any other or further relief this Honourable Court may deem fair and just to grant suo motu.

2. The Application was premised upon sections 4(2), (3), 6(1), 82(1) and (3) and 114 (g) of the Children Act Cap 141 Laws of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21, Laws of Kenya, Order 42, Rule 6 (2) and (3) of the CivilProcedure Rules 2010 and all other enabling provisions of the law and was supported by the Affidavit of even date of even date sworn by the Applicant.

3. The Respondent Sadia Osman Abdifiled a Replying Affidavit dated 24th November 2021 in opposition to the application. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 28th March 2022 whilst the Respondent relied on his written submissions dated 12th May 2022.

Background 4. The Applicant and the Respondent were in a martial union from 2005 to 2015 when they separated. Their union resulted in two (2) sons Mohamed Adarus aged 8 years and Abdimalik Adarus aged 12 years.

5. On 18th December 2015 the Applicant herein filed a suit in the Children Court being Case No. 1618 of 2015 seeking the following orders:-“i.A permanent injunction restraining the defendant, her agent, employees, servants or anyone whomsoever from removing the minors from the jurisdiction of this court.ii.An order of full care and custody of the minors M.A and A.A.iii.In the alternative, an unconditional order of access of the minors M.A. and A.A.iv.In the alternative, an order of joint legal custody and unconditional access of the minors M.A. and A.A.”

6. The matter was heard in the subordinate court and vide a judgment delivered on 6th October 2021 Hon G.M. Gitonga Principal Magistrate made the following orders: -“i.I grant joint legal custody of the children M.A. and A.A. to the parties herein.ii.I grant actual custody care and control of the said children to the defendant/mother as the primary care giver.iii.I equally grant the Defendant/mother leave to travel out of the court’s jurisdiction with the said children for possible resettlement to Canada a Country that both the Plaintiff/father and the children hold citizenships without needing the consent of the Plaintiff/father.iv.I grant the Plaintiff unlimited but reasonable access to the said children both herein Kenya at the UNHCR safe house as well as in Canada if resettlement is successful.v.The defendant/mother shall have the duty to disclose her physical address while in Canada if successfully resettled for easy access to the children by the Plaintiff/father.vi.After 3 months of such resettlement the Defendant/mother shall provide the physical and phone address to the Plaintiff through the Canadian High Commission to facilitate virtual access of the children by the Plaintiff through Telephone calls, skype or video conferencing on every alternate Saturday or Sunday of the week between 9. 00 pm and 10. 00 pm Kenyan time.vii.Finally on the issue of maintenance, the Defendant/mother shall be the primary caregiver of the children and provide the children’s needs by virtue of the custody order. The Plaintiff/father is at liberty to provide for the children in terms of their basic needs, if he so wishes.”

7. Being dissatisfied with that judgment the Applicant filed a Memorandum of Appeal dated 15th October 2021. Contemporaneously, with that Appeal the Applicant filed this present application seeking to stay the orders made by the trial court specially the order granting the Respondent leave to travel out of the Country with the minors without first seeking and obtaining permission of the Applicant.

8. Order 42 Rule 6 of the Civil Procedure Rules 2010 grants courts the discretion to stay any orders made by a subordinate court. Order 42 Rule 6 provides as follows:-“6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

9. This court is mindful of the fact that this is a matter which concerns the welfare of the minors. It is trite that courts are required in all matters to give priority to the best interests of the child

10. The Constitution of Kenya 2010 provides at Article 53 (2) that:(2)A child’s best interests are of paramount importance in every matter concerning the child.”

11. Likewise Children Act at Section 4(2) provides as follows:-“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. (own emphasis)

12. In the case of BhuttvsBhutt– Mombasa HCCC No. 8 of 2014, the Court held as follows:-“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the civil Procedure Rules, must be complemented by overridingconsideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis)

13. I have carefully perused the judgment delivered by the lower court on 6th October 2021. The orders which the Applicant particularly seeks to stay are the orders made by the trial court granting the Respondent (mother) leave to travel out of the Country for possible resettlement in Canada without first obtaining the consent of the Applicant. The Applicants position is that his children should not be allowed to leave Kenya as he wishes them to be raised in this Country.

14. This is a case of parents who are both Somali Nationals. The Applicant claims that he is now residing with his second wife in Mombasa and this is why he does not wish the minors to be taken out of the Country.

15. However the finding of the trial magistrate is that the Applicant is a Canadian citizen not a Kenyan Citizen. This was conceded by the Applicant himself. The court further found that the minors have been in the custody of the Respondent since the year 2015 when the couple separated. The Applicant had been living in Canada and only returned to Kenya in 2015.

16. The Respondent who is the primary caregiver of the minors is a refugee in Kenya. She has through the UNHCR been granted an opportunity for resettlement in Canada with the minors who are Canadian Citizens. Currently the Applicant resides with the minors in a safe house provided by the UNHCR

17. Undoubtedly it would be in the best interests of the minors to move with their mother to Canada where they would not have to live in a safe house but would be free to live in a home like other children and be entitled to attend school. Canada is the country of their citizenship.

18. The Applicant who is a Canadian citizen himself is at liberty to travel to Canada at any time to see the minors. It is hypocritical for the Applicant himself holding Canadian citizenship to insist that his children be raised in Kenya with a mother who has no means to support them here.

19. The trial magistrate had the benefit of a Report from the Children Officer who recommended that the minors be allowed to relocate to Canada with their mother. The trial court also sought and considered a report on resettlement provided by the UNHCR.

20. The Respondent has been and still is the primary caregiver for both minors. The parties are no longer in a marital union and indeed the Respondent has had to be accommodated in a safe house because she is apprehensive of physical attacks from the Applicant.

21. The welfare of the minors being of paramount consideration, I am of the view that staying the orders permitting the Respondent to relocate to Canada with the minors would not be in the best interests of the two (2) children. Children deserve stability in their lives. Living in hiding in a safe house with their mother is detrimental to the welfare of the children.

22. The trial court did make adequate orders directing the Respondent to reveal the location of the minors to the Applicant if and when she relocates. The Applicant being a Canadian citizen is able to travel freely to that Country to see the children.

23. In conclusion, I find no merit in this application for stay. The same is dismissed in its entirety. This being a family matter each side shall bear its own costs.

DATED IN NAIROBI THIS 3 RD DAY OF JUNE 2022. …………………………………..MAUREEN A. ODEROJUDGE