[2023] KEHC 26008 (KLR)
The court held that while consent orders are binding and can only be set aside by consent or upon proof of a vitiating factor, the best interest of the child remains paramount. The court found it appropriate to slightly vary the consent orders to facilitate the child's welfare during the holiday period, allowing the...
Source-derived case information.
- Citation
- [2023] KEHC 26008 (KLR)
- Parties
- Appellant: NNN; Respondent: DM
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E144 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application to Review or Set Aside Consent Orders
- Outcome
- Consent orders of 26.10.2023 varied to allow the child to spend Christmas with the mother and New Year with the father; parties encouraged to resolve remaining issues through mediation.
- Judges
- PJO Otieno
- Legal Topics
- Child Custody, Consent Orders, Best Interest of Child, Court Annexed Mediation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NNN
Appellant
DM
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Review or Set Aside Consent Orders
Legal Issues
- 1 Whether the consent order regarding child custody should be set aside or reviewed.
- 2 Whether the best interest of the child requires variation of the existing custody arrangement.
Ratio Decidendi
The court held that while consent orders are binding and can only be set aside by consent or upon proof of a vitiating factor, the best interest of the child remains paramount. The court found it appropriate to slightly vary the consent orders to facilitate the child's welfare during the holiday period, allowing the child to spend Christmas with the mother and New Year with the father. The court emphasized the importance of parental cooperation and encouraged the parties to utilize court-annexed mediation to resolve outstanding issues, ensuring that all decisions prioritize the child's best interests.
Court Disposition
Consent orders of 26.10.2023 varied to allow the child to spend Christmas with the mother and New Year with the father; parties encouraged to resolve remaining issues through mediation.
Orders
- The mother to hand over the child to the father on 1.12.2023.
- The father to hand over the child to the mother on 23.12.2023 for Christmas.
Full Case Text
Judgment text and source record
24 paragraphs
NNN v DM (Civil Appeal E144 of 2023) [2023] KEHC 26008 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26008 (KLR)
Republic of Kenya
In the High Court at Kakamega
Civil Appeal E144 of 2023
PJO Otieno, J
November 30, 2023
Between
NNN
Appellant
and
DM
Respondent
Ruling
1. When to set aside a consent order is now well settled. It may be done by a consent or when a vitiating factor is disclosed and proved. (Flora Wasike -Vs- Desmiond Wamboko (1980) eKLR)
2. The notice of motion dated 8. 11. 2023 and filed in court on 9. 11. 2023 seeks the review or setting aside of the orders made on 26. 10. 2023 and that the respondent be ordered to make provisions for the minor.
3. From the record of the file, the substantive orders were by consent and concerned the minor being with the mother for the entire month of November 2023 and with the father during the entire month of December 2023.
4. In addition, parties were referred to court annexed mediation to be concluded within 45 days from the same date.
5. The court pays due regard that mediation when properly conducted in good faith, has the potential to resolve the entire dispute and is thus cautious not to preempt the process. Let all issues capable of addressing the best interest of the child be addressed at the court annexed mediation.
6. However, it is also the view of the court that for the best interest of the child to be met, the two parents must climb down and talk over the child and her welfare.
7. For that reason, parties are encouraged to talk more and 0put the best interest of the minor above their own. In that regard the court shall slightly tamper with the orders of 26. 10. 2023.
8. To facilitate the interaction between the two parents, over the best interest of the child, the mother will hand over the child to the father on 1. 12. 2023, the father will also personally hand over the child to the mother on 23. 12. 2023 to enable he child spend the Christmas period with the mother but on condition that the child is returned to the father by 27. 12. 2023 to enable her be with him till 2. 1.2024. The mother will take custody of the child on that 2. 1.2024.
9. Only to the extent of the child being with the mother over Christmas and being with the father during the New Year, purely on account of trying to meet the best interest of the child, I do revisit the orders of 26. 10. 2023.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 30TH DAY OF NOVEMBER, 2023HON. P.J.O. OTIENOJUDGEIn the presence of:N/A Mr. Munyendo for the AppellantN/A Mr. Ondieki for the RespondentCourt Assistant: Polycap Mukabwa