[2020] KEHC 428 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

MISC APPLICATION NO. 15 OF 2020

SMM....................................................APPLICANT

VERSUS

AM...................................................RESPONDENT

RULING

1. Vide a plaint dated 15th August,2019, and filed in court on 19th August, 2019, AM instituted children’s case No 349/2019 at Tononoka children’s court against her estranged husband one SMM, seeking several orders inter alia; a determination that they have equal parental responsibility over their children the subject of the suit herein, PW and DM born 2009 and 2014 respectively; legal custody, care and control over the children to vest in the plaintiff; payment of monthly maintenance of the children at Ksh 24,300 ; payment of; school fees, medical and educational expenses to be imposed upon the defendant.

2. In the body of the plaint, the plaintiff/respondent claimed that she and the defendant are biological parents to the minors herein. That upon their separation sometime in April, 2019 while in Kitui, she was left with the children. That she subsequently moved to Ukunda within Kwale County and found a school for the children.

3. She further stated that, sometime in April, 2019, the defendant/applicant abducted their children and forcefully took their physical custody away from Ukunda. That every effort to settle the issue of actual custody outside court has become impossible.

4. Having been served with a copy of the plaint, the defendant /applicant moved to this court on 7th September,2020 vide a notice of motion dated 5th September, 2020 seeking orders that; Tononoka children’s court case No.349/2019 Mombasa scheduled for hearing on 9th Sepember,2020 be stayed pending hearing and determination of the application; that the said suit be transferred from Tononoka to Milimani Children’s court for hearing and determination and, that the court orders any other orders it deems fit.

5. The application is premised upon grounds stated on the face of it and averments contained in the supporting affidavit sworn on 5th Sepetmber,2020 by the applicant. The main ground upon which the application for transfer is anchored is the claim that; the applicant is residing within Nairobi and that, the children are also residing and schooling in a school within Nairobi. To prove that claim, the applicant attached school report cards from Focus Junior academy where the children are schooling.

6. He further averred that all potential witnesses are residing in Nairobi and Kitui. He stated that the children were born and raised in Kitui and Nairobi and that they have never lived in Mombasa save for 2019 when the respondent secretly removed them from [Particulars withheld] primary school and took them to some public school in Kwale from where he also picked and took them to Nairobi where they are schooling in their current school.

7. In his view, it is just and fair that the suit be heard in Nairobi which court has jurisdiction and also, to avoid exposing children to corana virus while traveling from Nairobi to Mombasa.

8. In response, the respondent /plaintiff filed a replying affidavit sworn on 6th November,2020 claiming that the application is a mis-representation of facts, malicious and filed in bad faith. That the applicant has deliberately concealed material facts. She averred that when they separated in April 2019, she decided to move away from the applicant hence relocated to Ukunda in Kwale.

9. At Kwale, she allegedly enrolled children in some school from where the applicant abducted them on 19th July,2019. That every effort to get the children back to school has been futile as the applicant is a senior police officer who has obstructed and disobeyed execution of even court orders. That with impunity, the applicant destroyed items in her house and carried away all her clothes.

10. She claimed that the applicant has purportedly disobeyed court orders requiring him to produce the children before court and that Tononoka court has jurisdiction to entertain the matter as the cause of actin arose within its jurisdiction.

11. During the hearing, Mr. Mangare counsel appearing for the applicant basically reiterated the averments contained in the affidavit in support of the application. Learned counsel contended that Milimani children’s court has jurisdiction to hear the matter considering that potential witnesses, children and the applicant /defendant are based in Nairobi.

12. On her part, the respondent/plaintiff who appeared in person adopted the averments contained in her replying affidavit.

Determintion

13. I have considered the application herein, affidavit in support, response thereto and oral submissions by counsel for the applicant and the respondent in person. The crux of the application herein is that Tononoka children’s court lacks territorial jurisdiction to entertain the suit in question. It is trite that jurisdiction is the cornerstone of any litigation and without it, a court has no legs to stand on nor legal authority to entertain a suit that is not properly before it. See Owners of the Motor vessel “Lillian S” V Caltex Oil Kenya Ltd ( 1989) e KLRwhere Nyarangi, J held that jurisdiction is everything and without it a court cannot move a step further hence should down its tools.

14. Similar position was held in the case of In the matter of the Interim Independent Electoral Commission Constitutional Application No 2/2011 where the court had this to say;

“Assumption of jurisdiction by courts in Kenya is a subject regulated by the Constitution, by statute law and by principles laid out in judicial precedent”

15. In compliance with section 15 of the Civil Procedure Act, every suit ought to be instituted in a court within the local limits of whose jurisdiction the respondent or each of the defendants actually or voluntarily resides at the commencement of the suit or carries on business or works or where the cause of action accrued or arose. If it is a monetary claim, the trial court with the requisite monetary jurisdiction as prescribed under the magistrate’s court Act will entertain the matter.

16. If the court where the suit is filed has no territorial jurisdiction, any party can apply to the high court for transfer of such case to the right court with jurisdiction. However, a lower court without jurisdiction can strike out a suit for want of jurisdiction on its own motion or on being moved by either party.

17. Section 18 of the Civil Procedure Act empowers the high court to transfer a case from one subordinate court to the other. See Kithita Ngeana v Mwaniki Kisume (2018)Eklr. Indeed, pursuant to Section 11 of Civil Procedure Act, a suit ought to be entertained in a court of the lowest grade that is competent to try it. It is incumbent upon the applicant to convince the court that he has good grounds to support transfer of the case from Tononoka court to Milimani.

18. In the case of David Kabungu Vs Zikarenga and 4 others Kampala HCCS No. 36 of the 1995 Okello J, held that;

“Section 18 (1)(b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo motto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless expense and difficulties of the trial would be so great as to lead to injustice. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction...It is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused… Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case transfer would be refused”.

19. Besides the above guidelines which have equally been highlighted in various judicial precedents, courts are further required to consider the real motive or character for transfer of a case from one court to another. In the instant case, the defendant/applicant is relying on three grounds interalia; lack of territorial jurisdiction, children’s and potential witnesses’ residences being Nairobi and Kitui and the possible attendant expenses in transporting witness from Nairobi to Mombasa. There is no doubt the children are schooling in Nairobi after they were allegedly forcefully removed from Ukunda where they were schooling.

20. Apparently, the couple’s differences started while in Kitui where they separated thus forcing the respondent to relocate to Ukunda. Issues regarding child custody came up thus prompting the applicant to relocate them to Nairobi. It is this relocation that led to the filing of this suit in Tononoka. On that ground alone in my view, the cause of action regarding child custody and maintenance arose in Ukunda which is within the jurisdiction of Tononoka children’s court.

21. Although the children were later moved to Nairobi, a dispute had already arisen culminating to the forceful removal of the children to Nairobi. Under Section 15 of the Civil Procedure Act, in my opinion, the cause of action first arose within Tononoka children’s court’s jurisdiction.

22. Regarding the place of residence of the defendant/applicant, the same is in Nairobi a fact which is not disputed implying that Milimani law courts would also exercise jurisdiction. Where two courts have concurrent jurisdiction over a matter, either party can choose the court in which to institute the suit. Since the plaintiff/respondent first moved to court and filed the suit in one of the courts with territorial jurisdiction, it will not be right for the applicant/defendant to claim Milimani court has superior right over jurisdiction as opposed to Tononoka law courts.

23. Regarding witnesses’ and children’s residence being Nairobi and Kitui, one would have to look at the nature and character of the proceedings. This is a children’s matter where the children are aged between 6-11 years. The entire suit revolves around custody and maintenance. These are issues which can be determined even in the absence of the children unless under exceptional circumstances the court decides to interview them. The case can be conducted without necessarily calling children to attend court. Further still, with the electronic case management directions in place, witnesses if necessary can testify virtually.

24. Since paternity is not denied, parties shall basically be litigating over custody and maintenance which requires the two to attend either physically or virtually depending on the discretion of the trial court.

25. The claim that it will be costly for the applicant and witnesses to travel to Mombasa, the same will be the position for the plaintiff if she were to travel to Milimani in Nairobi. Litigation is all about inevitable expenditure. In my view, the case has been pending for over one year now. Parties should fast track the hearing and have the matter concluded.

26. On a balance of convenience and for the ends of justice to be met, I do not find any good ground to transfer the matter from Tononoka law courts to Milimani. To do so will even prolong the hearing of the suit hence unnecessary delay. Since Tononoka Law Courts has territorial jurisdiction to entertain the matter, the same does not shift by the removal of the children from Ukunda to Nairobi.

27. For the above stated reasons, it is my finding that the application herein is not merited and the same is dismissed with no order as to costs. The lower court to fast tract the matter and dispose the same as soon as possible.

Dated, signed and delivered virtually this 11th day of December 2020

HON. JUSTICE J.N. ONYIEGO

JUDGE