[2024] KEHC 6920 (KLR)

Mwachofi v Omondi (Civil Appeal E057 of 2023) [2024] KEHC 6920 (KLR) (9 April 2024) (Ruling)

Neutral citation: [2024] KEHC 6920 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E057 of 2023

GMA Dulu, J

April 9, 2024

Between

Lily Kitawa Mwachofi

Appellant

and

Frederick Odhiambo Omondi

Respondent

Ruling

1. Before me is an application by way of Notice of Motion dated 27th October 2023 filed by the Plaintiff, now appellant/applicant Lily Kitawa Mwachofi, through counsel Sisule & Associates LLP under Article 53 of the Constitution of Kenya 2010, and Section 6, 8, 11, 13(2), 14(2), 15, 16(1), (2) (6), 30, 31, 32, 91(1)(a), 95, 102, 103, 107, 111 and 117, 118 and 119 of the Children Act No. 29 of 2022.

2. The applicant seeks the following orders from this court:-1. (Spent).2. The orders of the court Hon. T. N. Sinkiyian (Principal Magistrate) issued on 19th October, 2023 in Voi CM Children Case No. E024 of 2023 Lily Kitawa Mwachofi =Versus= Fredrick Odhiambo Omondi, and particularly vesting the actual custody of Leon Farrell Odhiambo, a minor of three years and six months, with the respondent is hereby stayed pending determination of the present appeal.3. In the meantime pending the determination of the present appeal as well as the present Notice of Motion application, the actual and physical custody of Leon Farrell Odhiambo, be restored and vested upon the appellant/applicant herein.4. In the interim, and pending the determination of the present appeal as well as the present Notice of Motion, the court be pleased to award access to the respondent, but limit the same to visiting the minors during day, and particularly between 0900hours to 1700 hours, and with prior arrangement with the plaintiff/applicant.5Costs be in the cause.

3. I will hereafter refer to Lily Kitawa as the applicant. The application has grounds on the face of the Notice of Motion that the applicant and the respondent sired two children Leon Farrell Odhiambo born March 17, 2020 and therefore approximately three years and six months, and Fredrick Kylian Odhiambo born on April 15, 2022 and therefore approximately one year and five months; that owing to differences the respondent has demanded that the applicant leaves the shared home; that the respondent demanded that he remains with the first born child Leon Farrell Odhiambo with threats despite of which the applicant relocated with the two children and filed Voi CM Children Case No. E024 of 2023 and the respondent filed a Notice of Motion under certificate of urgency; that on 17th October 2023 two (2) days prior to the mention date for further directions the respondent secretly gained access to the two minors and made away with the first born child Leon Farrell Odhiambo; the applicant then filed a supplementary affidavit to inform the court of the development and the respondent filed a Chamber Summons under certificate of urgency seeking interim orders of custody of Leon Farrell Odhiambo; that parties attended court on 19th October 2023 and extensively addressed developments; that the court then referred the matter to Court Annexed Mediation and maintained the status quo as at the date of the proceedings and directed that each party would afford access to the other party; and that as a result the applicant was aggrieved and has come to this court on appeal and also filed the present application.

4. The application was filed with a supporting affidavit sworn by the applicant on 27th October 2023 which amplifies the grounds of the application and annexed a number of documents relating to the child subject of these proceedings and applications, as well as the contested orders of the Children Court.

5. The application is opposed through Grounds of Opposition, and was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Sisule & Associates LLP Advocates for the applicant, as well as the submissions filed by Mawira & Ndungu LLP Advocates for the respondent. Both counsel relied on decided court cases. I also note that the applicant later filed a notice to act in person on 13th February, 2024.

6. This is an application seeking interim restoration of physical and actual custody of a minor child of both the applicant (mother) and the respondent (father) with the applicant pending determination of appeal.

7. In my view, it is important for clarity sake, to reproduce herein the directions issued by the Children’s Court, which orders or directions are in contest herein:-“1. The court has heard both parties.

2. The children in this case have been separated in circumstances that each of the parties blames the other.The plaintiff moving to Voi and taking both children then filing the application dated 28. 9.2023. In response the defendant filed an application on 17. 10. 2023 seeking custody of only one child Farrell Leon Odhiambo first born. When the said application was still pending the defendant has taken the said child to Nairobi leading the plaintiff filing a certificate of urgency for the sole reason of providing supplementary affidavit to the initial application as opposed to filing a replying affidavit to the said application.This court finds that the best interests of the 2 children involved is best served by allowing the parents plaintiff and defendant to work issues regarding the custody of the children and maintenance in the changed circumstances where the two parents are no longer living together.The multiplicity of applications filed between 29. 9.2023 and today is clear indication that the two parents are in dire need of a forum to have their issues mediated. The children are in the hands of the parents and however that came to be, they are still in the right care.The court finds it just to direct and order that this matter shall go through Court Annexed Mediation to avail the 2 minors a better chance of peaceful upbringing especially in the current tumult filled period soon after the separation.This matter is referred to Court Annexed Mediation pending further orders in the mediation the parents shall each have actual custody of the minor each has to allow the other reasonable access”.

8. The above orders were issued by the Children Court on 19th October 2023 and are the orders that precipitated the present application.

9. I note that there have been arguments made that leave to file an appeal has not been obtained from court as required under Order 43(1), (2) and (4) of the Civil Procedure Rules.

10. In my view, the issue of leave to appeal can only arise in the appeal, when the same comes up for directions before hearing of same. It is premature to raise that issue now in the present application.

11. Coming to the substance of the present application, the applicant’s counsel has relied heavily on the provisions of Section 95 of the Children Act, and Article 53(2) of the Constitution of Kenya 2010, both of which emphasize that the best interest of the child are paramount in determining matters involving children.

12. From the trial court’s order, it is clear to me that the issue of the welfare of the two children was in the Magistrate’s mind and was so reflected in the directions given.

13. The applicant in the present application not having pointed at any error of fact or misapprehension of the law in the directions made by the Magistrate in referring the matter to Court Annexed Mediation, this court cannot grant the orders sought.

14. Secondly, I find no justification based on the facts given by the applicant, which would justify this court to interfere with the directions of the trial Magistrate, which are quasi judicial orders effective for only a short period of time, and can be reviewed or revised by the same court, and the reference to mediation order is effective for a period of 60 days only within which the mediator has to report to the court. In any event, a child can be in custody of any or both parents unless facts are disclosed to upset that position, which facts have not been given herein.

15. I thus find no merits in the application dated 27th October 2023. I dismiss the application. As this is a domestic matter, I order parties to bear their respective costs of the application.

DATED, SIGNED AND DELIVERED THIS 9TH DAY OF APRIL 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantApplicant in personMr. Ndungu for respondent