[2007] KEHC 2475 (KLR)
The court held that the paramount consideration in matters involving children is their best interest and welfare. The minor resides in Eldoret with the mother, who is the main claimant seeking guardianship, maintenance, and custody. The applicant/father has not sought custody or access, nor has he demonstrated how...
Source-derived case information.
- Citation
- [2007] KEHC 2475 (KLR)
- Parties
- Applicant: Nemwel Nyasagare Nyanaro; Respondent: Henrieta Moraa (Minor Suing through Janet Magoma Onkundi)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 174 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Child Custody, Child Maintenance, Guardianship, Jurisdiction of Children Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nemwel Nyasagare Nyanaro
Applicant
Henrieta Moraa (Minor Suing through Janet Magoma Onkundi)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the Children’s Court case should be transferred from Eldoret to Thika in the best interest of the child.
- 2 Whether the convenience of the applicant/defendant overrides the welfare of the child in determining the forum for hearing the case.
- 3 Whether the court should dismiss the suit for lack of jurisdiction or other reasons.
Ratio Decidendi
The court held that the paramount consideration in matters involving children is their best interest and welfare. The minor resides in Eldoret with the mother, who is the main claimant seeking guardianship, maintenance, and custody. The applicant/father has not sought custody or access, nor has he demonstrated how transferring the case to Thika would serve the child’s welfare. The court found that transferring the case would inconvenience the child and mother, and that the applicant’s reasons were based solely on his own convenience. The court emphasized that the welfare of the child outweighs procedural or jurisdictional technicalities and declined to transfer the case, dismissing the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to transfer Eldoret Children’s Court Case No. 44 to Thika Children’s Court is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Misc Civil Appli 174 of 2007
NEMWEL NYASAGARE NYANARO ….......................…………. APPLICANT
VERSUS
HENRIETA MORAA
(Minor Suing through JANET MAGOMA ONKUNDI)..........…RESPONDENT
R U L I N G
I have considered the application for Eldoret Children’s Court, Case No. 44 to be transferred from the Eldoret Children’s Court to Thika Children’s Court. I have considered the rival affidavits and submissions by Counsel.
The Plaintiff and Defendant are husband and wife and appear to be estranged and living apart. The Plaintiff H. M. is a child of the union and is aged three (3) years old. The mother through whom she has brought this case says she lives in Eldoret. The father of the children is residing and working in Thika. It is clear that apart from the question of jurisdiction the Applicant/Defendant wishes to have the case transferred to Thika for his own convenience.
The Plaintiff has sought orders of guardianship, maintenance and custody of the minor. The Defendant seeks the entire dismissal of the suit without any admission of any parental responsibility.
I do no see how moving the case to Thika therefore can be for the best interest of the child. For some reason the parents are not living together. The minor is with the mother who seeks the said orders. The father has not asked for custody or even access/visitation. On the basis of the pleadings the child is in Eldoret. She is the subject of the suit and the main claimant.
The question of jurisdiction was before the Children’s Court and raised in the Defence. However, by filing this application the Defendant has presented the said question of law to this Court and this Court is obliged to decide upon it. The provisions of Section 12 and 15 are subject to the best interest and welfare of children.
This Court is obliged to decide all matters relating to children with due speed and dispatch without undue regard to technicalities of procedure.
The child/minor is in Eldoret with the mother. The Defendant has not claimed that he is maintaining them in his Defence. The Defendant only wants dismissal of the entire case. I see no basis for the case to be moved to Thika. One side is bound to be inconvenienced. It should rather be the father than the child. The father Applicant has not said how the child will be provided for while in Thika and whether he would bear the costs of travel or if the mother decided to take residence at Thika whether he would maintain the child and mother over there.
I find that it is in the best interest and welfare of the child that the case is heard in Eldoret. The said interest is of paramount consideration. I decline to transfer the case. The application is dismissed with costs to the Respondent.
DATED AND DELIVERED AT ELDORET ON THIS 25TH DAY OF JULY, 2007.
M. K. IBRAHIM
JUDGE