[2019] KEHC 972 (KLR)
The court found that although the application was procedurally defective, the urgency and the best interests of the child justified invoking its supervisory jurisdiction under Article 165(6) of the Constitution. The evidence showed that the child was being influenced by the father and grandparents to reject the...
Source-derived case information.
- Citation
- [2019] KEHC 972 (KLR)
- Parties
- Applicant: RWA; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 10 of 2019
- Procedural Posture
- Criminal Revision / Revision Order
- Outcome
- Application allowed in part; orders issued for temporary custody and scheduled access.
- Judges
- RPV Wendoh
- Legal Topics
- Child Custody, Best Interests of Child, Children Act Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
RWA
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Order
Legal Issues
- 1 Whether the court should revise the order of the Children’s Court regarding the custody of CNK.
- 2 Whether the best interests of the child require immediate release to the biological mother for the holiday period.
- 3 Whether the conduct of the grandparents and father amounts to interference with the child’s welfare.
Ratio Decidendi
The court found that although the application was procedurally defective, the urgency and the best interests of the child justified invoking its supervisory jurisdiction under Article 165(6) of the Constitution. The evidence showed that the child was being influenced by the father and grandparents to reject the mother, which was contrary to the child’s welfare. The court determined that scheduled access and temporary release to the mother for the Christmas holiday would serve the child’s best interests, with a warning to both parents against further interference. The court also indicated that continued interference could result in the child being treated as in need of care and admitted to...
Court Disposition
Application allowed in part; orders issued for temporary custody and scheduled access.
Orders
- The child CNK is to be released to the mother for the Christmas holiday from 19/12/2019 to 03/01/2020.
- The child is to be returned to the father on 03/01/2020 to attend school.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
CRIMINAL REVISION NO.10 OF 2019
(Application Originating from Nyahururu Children’s Court CC. No.45 of 2019 by: Hon. J. H. Wanyanga - SRM)
RWA..........................APPLICANT
-V E R S U S –
REPUBLIC.........RESPONDENT
REVISION ORDER
By a notice of motion dated 17/12/2019, the applicant RWAmoved this court under Section 362 of the CPCto call for and examine Nyahururu Children’s Case No. 45/2019 for purposes of satisfying itself of the correctness of the order issued by Hon, Wanyanga SRM in JKN vrs RWon 17/12/2019 and proceed to revise the said orders in the interest of justice.
She seeks orders that CNK, a child of tender years be released from St. Martin’s Children Home and be reunited with the biological mother, the applicant.
I note that the matter before Hon. Wanyanga SRM is not a Criminal matter but one under the Children’s Act. The applicant should have filed an appeal and come under certificate of urgency. However, under the supervisory powers of this Court in Article 165 (6) of the Constitution, and since this court is proceeding on vacation in two day’s time, and this being a matter involving a child and hence urgent, the court overlooked the defect in the application and directed that all parties appear before it on 19/12/2019 for further orders and directions which they did.
The court has interviewed the child and it is evident that the grandparents and the father are trying to mislead the child to hate the mother. The child even denied that the mother is his mother and he wants nothing to do with her. Both parents and grandparents are warned that what the court is concerned about is the best interest of the child. Since it is evident that the grandparents and father are misleading him to hate one parent, the court will order a scheduled access to try and reverse the effects.
The court has warned the both parents that if they continue to interfere with the child, he may be admitted to a children’s home for his own good because he will be treated as a child in need of care under Section 119, (1) (q) of the Children’s Act.
In the meantime, the court directs that the child be released to the mother for the Christmas holiday from today 19/12/2019 till 03/01/2020 when the child should be returned to the father, to attend school.
The child be delivered at the children’s office, Nyandarua North at Nyahururu between noon and 02. 00pm on 03/01/2020.
Mention before the trial court for compliance on 14/01/2020.
Signed and Dated at NYAHURURU this19thday of December, 2019.
..........................
R.P.V. Wendoh
JUDGE