[2005] KEHC 830 (KLR)
The court found that the question of whether the Kadhi court has jurisdiction over child custody is a moot point warranting judicial review. Accordingly, leave to commence judicial review proceedings was granted. However, the court declined to order that the leave operate as a stay, noting that the child was already...
Source-derived case information.
- Citation
- [2005] KEHC 830 (KLR)
- Parties
- Applicant: Republic; Respondent: Kadhi Sheikh Twalib; Interested Party: Arif Ramadhan Karama
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 903 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Commence Judicial Review
- Outcome
- Leave to commence judicial review granted; leave does not operate as a stay; directions given for expedited hearing.
- Legal Topics
- Judicial Review, Jurisdiction of Kadhi Court, Child Custody, Leave to Apply for Certiorari, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kadhi Sheikh Twalib
Respondent
Arif Ramadhan Karama
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Leave to Commence Judicial Review
Legal Issues
- 1 Whether the Kadhi court has jurisdiction to determine matters of child custody.
- 2 Whether leave to commence judicial review proceedings should be granted.
- 3 Whether leave should operate as a stay of the Kadhi court's orders.
Ratio Decidendi
The court found that the question of whether the Kadhi court has jurisdiction over child custody is a moot point warranting judicial review. Accordingly, leave to commence judicial review proceedings was granted. However, the court declined to order that the leave operate as a stay, noting that the child was already in the custody of the interested party and that it would be traumatizing to forcibly move the child between parents. The court directed that the substantive application be filed and served within 15 days and be heard on a priority basis.
Court Disposition
Leave to commence judicial review granted; leave does not operate as a stay; directions given for expedited hearing.
Orders
- Leave to commence judicial review proceedings is granted as prayed.
- Leave shall not operate as a stay of the Kadhi court's orders.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Civ Suit 903 of 2005REPUBLIC …………………………………………………….………..APPLICANT VERSUS KADHI SHEIKH TWALIB ………………………………..……….RESPONDENT AND ARIF RAMADHAN KARAMA…………………………….INTERESTED PARTY
RULINGThis is an application for leave to commence Judicial Review Proceedings for orders of certiorari and prohibition. It is alleged that Kadhi court has no jurisdiction to deal with custody of children. That jurisdiction, it is contended, is vested in the children’s court. That is a moot point. I therefore grant leave to apply as prayed.
As to the leave operating as a stay I did ask Mr. Kenzi for the Applicant who has the custody of the child at present. He said it is the Applicant. At that stage Mr. Khatib who happened to be in court shot up and said that that is not correct. He said he acted for the interested party in the Kadhi’s court and knows that the child is at present with his client. He said his client had to enlist the help of the court Bailiff to get the child taken from the Applicant.
As I pointed out to counsel to me this appears a delicate issue. It is traumatizing to have children forcibly thrown from one parent to another. In the circumstances I decline to direct hat the leave granted should operate as a stay. In any case there was nothing to be stayed if the child has already been taken by the interested party. Instead I direct that the application be filed and served within 15 days and be heard on priority basis.
DATED and delivered this 18th day of November 2005
D. K. MARAGA JUDGE