[2014] KEHC 6698 (KLR)
The court found that granting the application for interim custody at this stage would be tantamount to allowing the appeal before it is heard on its merits. The proper course is to have the appeal heard and determined in the ordinary way, as the proceedings have already been typed and the appeal is ready for...
Source-derived case information.
- Citation
- [2014] KEHC 6698 (KLR)
- Parties
- Appellant: P C N; Respondent: C K K
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 27 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Interim Custody Pending Appeal
- Outcome
- application dismissed
- Judges
- SJ Chitembwe
- Legal Topics
- Child Custody, Interim Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P C N
Appellant
C K K
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Interim Custody Pending Appeal
Legal Issues
- 1 Whether the High Court should set aside the subordinate court's order denying interim custody of the minors to the applicant pending appeal.
- 2 Whether granting the application would amount to allowing the appeal before it is heard on merit.
Ratio Decidendi
The court found that granting the application for interim custody at this stage would be tantamount to allowing the appeal before it is heard on its merits. The proper course is to have the appeal heard and determined in the ordinary way, as the proceedings have already been typed and the appeal is ready for hearing. The application for interim orders therefore lacks merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application dated 14/3/2013 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
Civil Cause No: 27 Of 2013
In The Matter Of The Estate Of:-
A M K ......................Children
A S K
(Suing Through Their Next Friend
Guardian Ad Litem & Mother)
P C N...............................................Appellant
Versus
C K K...........................................Respondent
R U L I N G
The application dated 14/3/2013 seeks to set aside the orders of the subordinate court issued on 16/2/2013. The applicant is seeking custody of the two minors. The application is supported by the applicant’s affidavit sworn on 10th April, 2013. Counsel for both parties relied on the respective pleadings.
The background to this matter is that the applicant filed a suit against the respondent before the children’s court at Webuye. The applicant made an application before the Webuye court dated 7/1/2013 seeking interim orders of custody of the children. The court made its ruling on 15/2/2013 whereby the application was disallowed. This led to the filing of the current appeal. In essence the suit before the trial court has not been heard on merit.
I have gone through the pleadings herein and the ruling of the trial magistrate. Since the appeal seeks to set aside the decision of the court that disallowed an application for custody, I do find that the application at this stage would be tantamount to allowing the appeal. This is an appeal against a ruling of the subordinate court. The ideal situation would be to have the appeal heard and final orders granted. The proceedings have been typed and the appeal can be heard.
I do find that the application cannot be granted at this moment. The application lacks merit and is dismissed with no orders as to costs.
Dated, signed and Delivered at Kakamega this 26th day of February 2014.
SAID J. CHITEMBWE
JUDGE