[2025] KEHC 2998 (KLR)

PR v DKK (Family Appeal E021 of 2024) [2025] KEHC 2998 (KLR) (12 March 2025) (Ruling)

Neutral citation: [2025] KEHC 2998 (KLR)

Republic of Kenya

In the High Court at Nakuru

Family Appeal E021 of 2024

JM Nang'ea, J

March 12, 2025

Between

PR

Appellant

and

DKK

Respondent

Ruling

1. The Appellant/Applicant brings a Notice of Motion dated 18th December 2024 for reliefs as hereunder;-1. Spent.2. Spent.3. That hearing and determination of the intended appeal the Court be pleased to vary orders issued by the Subordinate Court on 17th February 2024 in Nakuru Children’s Case No. 394 of 2024. 4.That the court be pleased to grant such other orders as deemed fit in the interests of justice.

2. The application is predicated on grounds set out in the body thereof as well as affidavit evidence in support by the application.

3. The Applicant’s affidavit evidence is that on 17th December 2024 the Respondent obtained orders granting him “overnight/take home” custody of the parties’ minor daughters aged 8 and 10 when owing to the children’s tender ages physical custody should be with their mother, the Applicant, unless it is otherwise shown that she is unfit to assume custody.

4. The Applicant further deposes that she is unable to comply with the court’s order since she does not know where the children will be residing, lamenting that a filed Children’s Officer Report was not served on her. Saying that they both work and reside in the United States, the Applicant states that she is apprehensive about the minors’ welfare and safety. The court is told that previously the Respondent attempted to forcefully take custody of the subject children yet his residence while in Kenya is unknown.

5. The Applicant further contends inter alia that the impugned orders were issued without reference to her affidavit in reply to the Respondent’s application. Her sister who has custody of the children in Kenya is said to have declined to release the children as she was unaware of the court orders. According to the Applicant, the Respondent is unfit to have custody of the children as he has never lived with them and has remarried. He had allegedly abandoned the children in 2020 and never catered for their upkeep.

6. The Applicant continues to complain that the Respondent’s application that resulted in the contested ruling was not heard on merits, hence her prayer for its variation. It is averred that if the reliefs sought are not granted the intended appeal would be rendered nugatory.

7. The Respondent opposes the application vide his affidavit in reply purporting to have been sworn on 21st January 2025. He contends that the Applicant was never in Kenya in December 2024 and could not therefore have sworn an affidavit in Kenya on the stated date. The Affidavit is therefore attacked not only as incompetent and a forgery but also for containing falsehoods.

8. The Respondent further deposes that the application is overtaken by events since he obtained custody of the subject children on 21st December 2024. The children’s welfare is said to be assured and that they are schooling.

9. According to the Respondent the Applicant and her advocate were aware of the Children Officer’s Social Inquiry Report filed on orders of the court. As the children’s biological father, he contends that there is no basis for denying him custody of his children who were living with third parties.

10. The Applicant swore and filed a Supplementary Affidavit in answer to the Respondent’s deposition and underscores her evidence in support of the application. The court is urged to strike out the Respondent’s Affidavit for being filed 14 days after the period directed by the court. She adds inter alia she was only agreeable to giving the Respondent access to and not custody of the children. The court is told that the children were confused by the court order and do not want to stay with the Respondent.

11. Learned Counsel for the parties filed Written Submissions reiterating the parties’ rival positions. Citing Githunguri vs Githunguri (1979) the Applicant’s advocates submit that in line with the principle that the welfare of children is the paramount consideration in children disputes, the custody of the children in issue should be with the Applicant. Counsel further make reference to Section 32 of the Children Act, 2023 which grants equal parental responsibility to children’s parents.

12. Attention of the court is also drawn to the provisions of Section 103(1) of the same Act which lists the factors to consider when deciding who to grant custody as including the age of the minors in question, their genders and past conduct of the parties.

13. On their part, the Respondent’s advocates submit that the trial court only issued interim orders of custody. Relying on this court’s decision in RK vs AN (Family Appeal E028 of 2022, in which a similar application was dismissed, Counsel submit that the instant application should meet the same fate.

14. The Respondent’s Counsel also point out that the intended appeal does not “on board” other defendants in the lower court suit and that the Applicant is not even within the jurisdiction of this court. According to the Respondent the Applicant could not have sworn her affidavits on record in Kenya since she was in the United States at the material time (see Case Law in Mary Gathoni & Another vs Frida Ariri Otolo & Another (2020) eKLR where the court noted that it was a “practical impossibility” to swear an affidavit in such circumstances).

15. In a nutshell, the Respondent thinks that the Applicant should await hearing of the suit in the lower court on merit before lodging appeal if it becomes necessary. As the biological father of the minors he has the right of custody thereof in law and he rightly obtained interim custody.

16. The Applicant has not satisfactorily or at all, rebutted the Respondent’s claim that she could not have sworn the affidavits she relies on in Kenya as purported being resident in the United States. No documents proving her travel to Kenya are for instance exhibited. She does not also come to court with clean hands having confessed that she disobeyed the lower court’s order giving interim custody of the subject children to the Respondent.

17. The Applicant has not further specified how the lower court’s order she impugns is to be varied. The relief sought is also unclear as the application does not expressly seek stay of execution pending appeal. Indeed the relief sought in the application is not known in law.

18. I agree with the Respondent that Superior Courts have decried filing of interlocutory appeals. Some of the Applicant’s complaints like non supply of the Children Officer’s Report may be addressed by exercise of that court’s jurisdiction to review of its orders pursuant to Order 45 of the Civil Procedure Rules 2010.

19. The application for the foregoing reasons inter alia lacks in merit and is dismissed. As this is a family matter, the parties will bear their own costs of the application.

RULING DELIVERED VIRTUALLY THIS 12THDAY OF MARCH, 2025 IN THE PRESENCE OF:J. M. NANG’EA - JUDGEMr. Mulana Advocate for the ApplicantMs Kinuthia Advocate for Mr. Kibet Advocate for the ApplicantCourt Assistant (Jeniffer)