[2013] KEHC 2620 (KLR)
The court found that the applicant had misrepresented facts by claiming the child lived with her in Mombasa, when in fact the child only stayed with her during school holidays as per a consent order. The child ordinarily resides and attends school in Nairobi with the respondent. The court held that it is more...
Source-derived case information.
- Citation
- [2013] KEHC 2620 (KLR)
- Parties
- Applicant: P K P; Respondent: N K
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Child Custody, Transfer of Proceedings, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P K P
Applicant
N K
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Children Case No. 839 of 2012 should be transferred from Nairobi to Mombasa for hearing and determination.
- 2 Whether the applicant's conduct amounted to an abuse of court process.
Ratio Decidendi
The court found that the applicant had misrepresented facts by claiming the child lived with her in Mombasa, when in fact the child only stayed with her during school holidays as per a consent order. The child ordinarily resides and attends school in Nairobi with the respondent. The court held that it is more expedient and convenient for the custody case to be heard in Nairobi, where the child lives, to avoid unnecessary travel and disruption. The applicant's attempt to transfer the case was deemed an abuse of court process, as she sought to benefit from her own non-compliance with the consent order. The application for transfer was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for transfer of Nairobi Children Case No. 839 of 2012 to Mombasa is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc. Application No. 1 Of 2013
P K P………..…………………Applicant
Versus
N K……………………………Respondent
RULING
*******
The Applicant P K P filed this application dated 4/1/2012 seeking transfer of a case she had filed in the Childrens Court in Nairobi being NAIROBI CHILDREN CASE 839 of 2012 from Nairobi for hearing and determination in Mombasa. The Application was opposed by the Respondent N K MR. MKAN Advocate acted for the applicant while MS. ADAGI appeared for the Respondent.
The Applicant and the Respondent had cohabited for a period of time and together they bore a son C S M born in 2006. After sometime their relationship turned sour and the applicant moved to Mombasa leaving the child in the custody of the Respondent in Nairobi. In her grounds in support of this application for transfer of the case the applicant states that firstly being without a job she is unable to afford the fares for constant trips to Nairobi in pursuance of the case. Secondly the applicant stated that she lives with the child in Mombasa. As it turns out this latter statement proved to be false. The applicant had deviously omitted to inform the court that the child only came to her in Mombasa pursuant to a consent entered into between the parties allowing her custody during the school holidays. The child was under the terms of said consent to be returned to Nairobi when schools re-opened. The applicant was thus trying to benefit from her contempt of the consent to sanction her continued custody of the child. This as I found amounted to an abuse of court process. As matters now stand the child lives in Nairobi with the Respondent and attends school in Nairobi. As a general rule it would be more expedient and convenient to have a custody case heard and determined in the location where the child lives. This way if the child is ever required to be in court he would not have to travel long distances. Whilst I appreciate that travel to Nairobi may dent the applicants pocket, I do not anticipate that she would require to travel there more than three or four times in total. Once the issue of custody is determined then the need for frequent travel will cease. The childrens court in Nairobi already has conduct of this matter. In the interests of justice the case ought to be concluded there I find no merit in this application to transfer the case. The same is dismissed. Each party to bear their own costs.
Dated and delivered in Mombasa this 14th day of June, 2013.
M. ODERO
JUDGE
No appearance by either party.
M. ODERO
JUDGE
14/6/2013