[2024] KEHC 6798 (KLR)
The court found that, in the absence of the children's mother and with the applicant being the only traceable parent, it is in the best interests of the children to allow communication with their father. The social inquiry report supported this, noting the children were agreeable to such contact, provided it is...
Source-derived case information.
- Citation
- [2024] KEHC 6798 (KLR)
- Parties
- Applicant: Gadiel Yonakijiwa Mwanga; Respondent: Director of Public Prosecutions; Respondent: Director of Naima Children’s Home – Taveta
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E049 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Notice of Motion for Communication With Children
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Prisoners Rights, Parental Contact, Best Interests of Child, Children in Care
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gadiel Yonakijiwa Mwanga
Applicant
Director of Public Prosecutions
Respondent
Director of Naima Children’s Home – Taveta
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Notice of Motion for Communication With Children
Legal Issues
- 1 Whether a prisoner serving life imprisonment is entitled to communicate with his children in a children’s home.
- 2 Whether such communication is in the best interests of the children under Article 53 of the Constitution and the Children’s Act.
- 3 Whether the court should grant supervised communication between the applicant and his children.
Ratio Decidendi
The court found that, in the absence of the children's mother and with the applicant being the only traceable parent, it is in the best interests of the children to allow communication with their father. The social inquiry report supported this, noting the children were agreeable to such contact, provided it is supervised. The court emphasized that the best interests of the child, as enshrined in Article 53 of the Constitution and the Children’s Act, override other considerations. Therefore, the application was allowed, granting the applicant supervised phone communication with his children at least three times a year.
Court Disposition
application allowed
Orders
- The 2nd respondent (Director of Naima Children Home Taveta) is ordered to allow the applicant to communicate through mobile phone with his two children, Elizabeth Gadiel and Yona Gadiel.
- The 2nd respondent is further ordered to allow the applicant to communicate with the children through mobile phone at least three times per year, subject to supervision and monitoring by the 2nd respondent.
Full Case Text
Judgment text and source record
19 paragraphs
Mwanga v Director of Public Prosecutions & another (Miscellaneous Criminal Application E049 of 2023) [2024] KEHC 6798 (KLR) (14 May 2024) (Ruling)
Neutral citation: [2024] KEHC 6798 (KLR)
Republic of Kenya
In the High Court at Voi
Miscellaneous Criminal Application E049 of 2023
GMA Dulu, J
May 14, 2024
Between
Gadiel Yonakijiwa Mwanga
Applicant
and
Director of Public Prosecutions
1st Respondent
Director of Naima Children’s Home –Taveta
2nd Respondent
Ruling
1. Before me is a Notice of Motion filed on 17th October 2023 filed by Gadiel Yonakijiwa Mwanga a convict in Taveta Magistrate’s Court Criminal (Sexual Offence) Case No. 9 of 2019, who is serving life imprisonment under Section 20(1) of the Sexual Offences Act No. 3 of 2006.
2. The requests of the applicant are as follows:-1. That the court be pleased to order the 2nd respondent to allow him to communicate through mobile phone with his children Elizabeth Gadiel and Yona Gadiel.2. That the court be pleased to order the 2nd respondent to allow him communicate with his children through mobile phone at least 3 times a year.3. The application was filed with an affidavit sworn on 5th October 2023 by the applicant, in which it was deponed that he was a Tanzanian citizen who had been convicted of incest and sentenced to life imprisonment; that they had divorced with the mother of the children; that despite being a prisoner he still remained to be the father of the children; that he relied on the provisions of Section 114(a) as read with Section 133 of the Children’s Act in the present application.4. On 5th February 2024, this court ordered the filing of a social inquiry report, which report was filed on 28th February 2024 by Mbito Mvuria the Co-ordinator Children Services, and was to the effect that as the mother of the two children who currently were in the custody of Naima Children’s Home is not traceable as she has crossed to Tanzania, and since the applicant who is the father is in prison for life and the children are agreeable, he be allowed to talk on phone to them subject to the officials of the children home listening to the conversation.5. On his part, the learned Prosecuting Counsel Mr. Sirima submitted that based on the contents of the social enquiry report, the State is agreeable that applicant be allowed to communicate with the children, subject to supervision and monitoring.6. Having myself reviewed and considered the matter, and the social enquiry report, I am of the view that it is in the best interests of the children under Article 53 of the Constitution and the provisions of the Children’s Act, to allow the only traceable parent the applicant, to communicate with the children.7. I thus allow the application and order as follows:-i.I order the 2nd respondent (Director of Naima Children Home Taveta) to allow the applicant Gadiel Yonakijiwa Mwanga to communicate through mobile phone with the two children under his care namely Elizabeth Gadiel and Yona Gadiel.ii.This court orders the 2nd respondent to allow the applicant to communicate to the above two children through mobile phone at least 3 times per year, subject to supervision and monitoring by the 2nd respondent.
DATED, SIGNED AND DELIVERED THIS 14TH DAY OF MAY 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsApplicantMR. Sirima for State.