[2022] KEHC 2503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CHILDRENS APPEAL NO. E013 OF 2021.

PSL (SUING ON BEHALF OF ELK, MINOR)...........................................APPLICANT

VERSUS

SKO...............................................................................................................RESPONDENT

RULING

1. The applicants chamber summons dated 2nd December 2021 prays for the following reliefs;

a) This court be pleased to place the minor under actual custody of the applicant pending hearing and determination of this application and the appeal herein.

b) Pending the hearing of this application this court be pleased to call for examination of the record of proceedings in Nakuru children’s case no. 97 of 2021 for purposes of satisfying itself on the correctness, legality and propriety of the court’s ruling made on 18th September 2021 by Honourable B Limo (SRM) and orders issued by Hon.Y. I KHATAMBI (PM) on 1st December 2021.

c) Costs be provided for.

2. The application is supported by the sworn affidavit of the applicant dated 2nd December 2021 and the annexures thereto. The issues between the parties herein are clear and straight forward. Both seared the subject herein. They seemed to have heard their personal differences which caused them to dispute the custody of the minor.

3. They both filed suits at the children’s court which were later consolidated into case no 97 of 2021. The trial court issued several orders which granted the custody of the child in the interim to oscillate between the two parents. They each would have different days with the child under the supervision of the children’s officer Bondeni or his appointee.

4. It appears that the respondent according to the applicant failed to honour the terms of the order but instead took the child away to his other wife at Kajiado. This annoyed the applicant as she felt that the child was taken outside the jurisdiction of the court.

5. She then approached the court for further orders including contempt proceedings against the respondent. Hon Khatambi on 1st December 2021 certified the application dated 29th November 2021 urgent and directed that the orders by the trial court ought to remain in force and that the respondent should proceed to produce the minor before court on 10th December 2021.

6. The applicant was dissatisfied with the above order and filed an appeal as well as the application herein. Her basic reason is that the court was insensitive to the plight of the subject whom she believed was distress and was not receiving good care from the respondent’s other wife whom she said was also nursing an infant.

7. The respondent in his replying affidavit dated 10th December 2022 agreed with the findings or ruling of the trial court and stated that he has not breached the same. That the child has been in his custody and specifically his first wife and that the applicant was free to have the child as she has been having for the last two months.

8. He went on to state that the child was just like the rest of his other children whom they have bonded. He said that he was a person of means and capable of taking care of his children including the minor herein.

ANALYSIS AND DETERMINATION

9. The court has perused the lengthy affidavit by the applicant as well as the response by the respondent. It is evident that the issue between the parties stem from the orders issued by the trial court dated 18th June 2021 and what followed thereafter. The back and forth issue herein was who to take care of the minor. The orders of Hon Khatambi came later in the day but in my view the substantive orders were those of 18th June 2021 and subsequently those of 17th September 2021 and probably delivered on the 18th.

10. The said orders directed how the child was to be handled pending the determination of the matter. It even directed the children’s officer Bondeni to supervise its compliance.

11. There was no appeal preferred by either of the parties against the said orders or a review for that matter. Whether it was breached or not was the issue which the parties ought to have taken before the trial court. Indeed, this appears to have been the case as per the contempt orders issued on 30th July 2021. There was no indication of what happened with the said application for contempt dated 13th July 2021.

12. What then is the net effect of the application before this court.? I respectfully think that the applicant did no exhaust the application dated 29th November 2021. The same had sustained the orders in force and directed the respondent to bring the subject to court on 10th December 2021. Before the orders could be complied with she filed this appeal as well as the application.

13. The orders on record are in her favour and by and large how the subject should be handled. I do not see how the trial court especially Hon. Khatambi failed to appreciate the issues. What was the urgency of filing this application yet the court had directed the minor to be produced in court on 10th December 2021 something which the applicant had been yearning all through?

14. The applicant should in my view place aside the emotions that goes with motherhood. She should concentrate on the ball, namely, ensuring that as the court directed, she continues to have the custody of the minor. As the father i doubt whether the respondent as well does not have the minors interest.

15. For now, I do not see any reason to allow the application without being convinced that the trials courts orders have been breached. As a matter of fact, reading the said orders, it is for the respondent to explain if true why he has breached the orders.

16. In the premises, the application is premature and it is hereby disallowed with no orders as to costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 10TH DAY OF FEBRUARY 2022.

H K CHEMITEI.

JUDGE.