https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6433

SMN v SJM (Appeal E148 of 2024) [2026] KEHC 6433 (KLR) (Family) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6433 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Appeal E148 of 2024 H Namisi, J May 14, 2026 Between SMN Appellant and SJM Respondent (Being an Appeal from the Ruling by Hon. Jackie Kibosia, Principal Magistrate delivered on 25 October 2024 in Chief Magistrate Courts at Milimani MCCHCC NO. E1481 of 2024) Judgment 1.Before this Court, the Appellant invokes the sacrosanct nature of a litigant's procedural autonomy, specifically the unconditional right to discontinue proceedings under Order 25 Rule 1 of the Civil Procedure Rules, 2010. He contends that upon the filing of the Notice of Withdrawal, the trial court was automatically rendered functus officio and stripped of any jurisdiction save for the assessment of costs. Consequently, the Appellant argues that the trial court's decision to retain the suit and entertain the Respondent's subsequent Defence and Counterclaim amounted to an egregious overreach of judicial discretion and a violation of his constitutional right to a fair hearing under Article 50 of The Constitution. 2.The Appellant and the Respondent solemnized their marriage under Islamic Law on February 25, 2016. The union was subsequently dissolved via a divorce decree issued by the Kadhi's Court at Nairobi on September 13, 2021, in Divorce Cause No. E102 of 2021. 3.The immediate catalyst for the litigation in the lower court was a profound dispute concerning the paternity, custody, and documentation of the minors. On August 7, 2024, the Appellant instituted Children Cause No. E1481 of 2024, filing a Plaint accompanied by a Notice of Motion. The Appellant asserted that the Respondent had fraudulently procured secondary Birth Certificates for both minors, substituting the Appellant’s name with that of an alleged imposter, AAA. The Appellant alleged that this was a calculated scheme by the Respondent to process new passports and unprocedurally remove the minors from the Kenya, thereby severing the paternal bond and depriving the children of his affection and support. 4.The Respondent, upon entering an appearance, filed a Replying Affidavit on September 10, 2024, presenting a diametrically opposed narrative. She averred that Abdallah Said Bajaber was the true biological father of the first minor, F.M., as evidenced by a birth notification issued at the Mombasa Hospital in 2012. The Respondent accused the Appellant of being the architect of the documentary fraud, alleging that he unilaterally and fraudulently procured a parallel Birth Certificate in 2016, falsely listing himself as the father and fabricating Makadara Maternity Unit as the place of birth. 5.Beyond the documentary dispute, the Respondent’s Affidavit contained grave allegations of systematic domestic violence perpetrated by the Appellant during the subsistence of the marriage. The Respondent alleged that this abuse occurred in the presence of the minors, causing significant psychological trauma. A specific incident on July 13, 2019, allegedly forced the Respondent and the minors to flee the matrimonial home for their safety. Furthermore, the Respondent contested the Appellant’s claims of financial support, producing bank deposit slips totalling millions of shillings as evidence that she single-handedly paid the minors' tuition at Brookhouse School. The Appellant, conversely, relied on M-Pesa transaction records indicating cumulative transfers of Kshs. 926,400/= as proof of his continuous parental support. 6.It is within this volatile crucible of cross-allegations—encompassing fraud, perjury, domestic violence, and parental neglect—that the Appellant sought to abruptly terminate the proceedings. Brief Background 7.The precise sequence of procedural steps is fundamental to evaluating the legal validity of the Appellant's withdrawal and the trial court's subsequent ruling. 8.On 7 August 2024, the Appellant filed the Plaint and Notice of Motion seeking temporary custody and passport injunctions. On 8 August 2024, the trial Magistrate directed that the Application be served for inter partes hearing. The trial court granted an ex parte order halting the processing of passports and ordered the issuance of a comprehensive Children’s Officer’s report. 9.On 10 September 2024, the Respondent filed a Replying Affidavit, vigorously contesting the Appellant’s claims. On 16 September 2024, the trial court noted that the Children’s Officer’s Repot was pending. The Respondent raised the issue of the Appellant allegedly limiting his access request to the second minor only. On 20 September 2024, the trial Magistrate ruled that the children must be formally assessed by the court, invoking section 95(2)(a) of the Children Act to ensure that their voices and welfare are centred in the proceedings. 10.On 10 October 2024, the Appellant filed a Notice of Withdrawal of suit. On 16 October 2024, the Respondent filed a Defence and Counterclaim to the Appellant’s Plaint. The matter was mentioned on 17 October 2024, when the Appellant’s counsel formally informed the court of the withdrawal, arguing the Appellant did not wish to disturb the children and ceded care to the Respondent. The Respondent's counsel opposes the withdrawal, citing unpaid school fees, the pending psychological counselling of the minors, the need for the Children Officer's Report, and the existence of a counterclaim. The trial court noted the suit appears to have been brought in bad faith. On 25 October 2024, the trial court delivered the contest Ruling. The trial court held that because it is a family matter, the court must act in the best interests of the child. The court found the withdrawal detrimental to the minors' welfare, and declared the application premature, thus disallowing it. On 30 October 2024, the trial court directed that the Defendant’s counterclaim shall proceed and set a date for pre-trial conference. 11.Aggrieved by the ruling of October 25, 2024, the Appellant lodged the present appeal on the following grounds:i.That the Learned Magistrate erred in derogating the Appellant’s right to a fair hearing as stipulated under Article 50 of the Constitution;ii.That the Trial Magistrate erred in mandating the suit to proceed notwithstanding the Notice of Withdrawal of Suit dated 7 October, 2024;iii.That the Honourable Magistrate erred in failing to find that the Notice of Withdrawal took effect on 7 October, 2024 with the Court singular duty being to ratify it;iv.That the Esteemed Magistrate erred in failing to find that at the time of the withdrawal of the suit no defence or counterclaim had been lodged as against the Plaintiff and she was therefore under a duty to acquiesce to the withdrawal;v.That the esteemed Magistrate erred in taking over a matter contrary to the wishes of the party;vi.That Learned Magistrate erred in allowing a suit to proceed that was not made in the best interest of the minors. Appellant's Submissions 12.The Appellant’s legal strategy relies almost exclusively on a strict, literal interpretation of Order 25 Rule 1 of the Civil Procedure Rules, 2010. This rule provides that a plaintiff may, at any time before the setting down of the suit for hearing, wholly discontinue his suit against all or any defendants by serving a written notice. 13.The Appellant vehemently argues that this right is absolute and unassailable. To fortify this position, the Appellant relies on the Supreme Court's pronouncement in Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others (Application No. 16 of 2014), which established that a party's right to withdraw a matter before the court cannot be taken away, and that the Court's only remaining jurisdiction is to make appropriate orders regarding costs. Further reliance is placed on the Supreme Court's decision in Lelli v Kenya Medical Training College & 2 others [2021] KESC 21, wherein the apex Court reiterated that the right to discontinue proceedings or withdraw a notice of appeal ought to be allowed as a matter of right. 14.The Appellant also draws the Court's attention to the Court of Appeal decision in Ochieng & 2 others v Onyango KECA 201. In Ochieng, the Court affirmed that at common law, a plaintiff possesses an unconditional right to withdraw their lawsuit at any point before a verdict is reached, a right described as substantial. The Appellant argues that because the Notice of Withdrawal was filed before the Respondent had filed her Defence or Counterclaim, the withdrawal was perfectly valid and effective immediately. 15.The Appellant characterizes the trial magistrate's refusal to recognize the withdrawal as a severe instance of judicial overreach. Referencing Hajar Services Limited v Peter Nyangi Mwita eKLR, the Appellant asserts that judicial discretion must be exercised based on fixed legal principles, not on private opinions, sentiments, or arbitrary benevolence. The Appellant contends there is no provision in law that empowers a court to forcibly compel a party to continue prosecuting a suit against their express wishes. Finally, the Appellant asserts that forcing the litigation to continue is actually contrary to the best interests of the minors, as it subjects them to an adversarial process where the Respondent has already indicated a desire to sever ties. Respondent's Position 16.While the Respondent did not file any submissions herein, her legal posture is clearly documented in the certified proceedings of the trial court. The Respondent vigorously opposed the withdrawal, categorizing the Appellant's entire suit as an exercise in bad faith and malice. 17.The Respondent argued that the Appellant had voluntarily invoked the jurisdiction of the Children's Court, making explosive allegations that triggered the protective machinery of the state. This included the court ordering a Comprehensive Children Officer's Report and the commencement of psychological counselling for the minors. The Respondent contended that the Appellant only sought to abandon the suit when his own alleged misconduct—including the fabrication of Birth Certificates and his failure to pay school fees—was exposed in the Replying Affidavit. 18.The Respondent relied on the statutory framework of the Children Act, specifically emphasizing that proceedings in a Children's Court are not merely adversarial contests between adults, but inquisitorial processes designed to protect the vulnerable. The Respondent argued that allowing the withdrawal would unjustly prejudice the minors' rights to maintenance and education, as the Appellant had outstanding financial obligations. The Respondent maintained that a court is not a mere rubber stamp for a plaintiff's procedural manoeuvres, especially when such manoeuvres amount to an abuse of the court process or operate detrimentally against the best interests of the children. Analysis & Determination 19.This Court distils the following four core issues for determination:i.Whether the right of a plaintiff to withdraw a suit under Order 25 Rule 1 of the Civil Procedure Rules is absolute and unconditional, and whether the filing of such a notice instantly renders the court functus officio.ii.Whether the principle of the best interests of the child, as enshrined in Article 53(2) of the Constitution and the Children Act supersedes the procedural rules governing the withdrawal of civil suits.iii.Whether the trial magistrate erred in law by disallowing the Notice of Withdrawal and subsequently directing that the Respondent's Counterclaim proceed. The Contours of Procedural Autonomy and Order 25 Rule 1 20.The fulcrum of the Appellant's case rests upon a strict, textualist interpretation of Order 25 Rule 1 of the Civil Procedure Rules, 2010. The provision reads:At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action. 21.This rule encapsulates the common law principle of dominus litis, which designates the plaintiff as the master of the suit. Under this paradigm, civil litigation is viewed as a private, adversarial contest. The party who sets the machinery of justice in motion retains the prerogative to halt it, provided the matter has not progressed to a stage where the rights of the defendant would be incurably prejudiced. 22.The Appellant heavily relies on the Court of Appeal's recent decision in Ochieng & 2 others v Onyango KECA 201. In Ochieng, the appellate court affirmed that a plaintiff has an unconditional right to withdraw their lawsuit at any point before a judgment is reached. The Court of Appeal, quoting with approval the Nigerian Supreme Court in Abayomi Babatunde v Pan Atlantic Shipping, noted that there are many legitimate reasons a plaintiff might withdraw, including realizing the weakness of a claim, witness unavailability, or a desire to reduce costs. 23.The Appellant further cites the case of Priscilla Nyambura Njue v Geovhem Middle East Ltd eKLR, where the Court held that the withdrawal of a suit is "itself its end," and that immediately upon withdrawal, the plaintiff ceases to have the capacity to act in that suit. The legal consequence frequently associated with such withdrawal is that the court becomes functus officio. 24.If this Court were to adjudicate this appeal solely through the narrow lens of standard civil and commercial litigation, the Appellant's argument would carry significant weight. In a typical contract or land dispute between competent adults, the filing of a Notice of Withdrawal under Order 25 Rule 1, before the suit is set down for hearing, is largely a unilateral act requiring no judicial ratification. 25.However, the application of Order 25 Rule 1 is not a mechanical exercise performed in a sterile vacuum. The assertion that a Notice of Withdrawal operates automatically to divest the court of all jurisdiction the very millisecond it is stamped by the registry is a dangerous oversimplification of the law. Procedural rules are handmaidens of justice, not its masters. The principle of dominus litis is subject to profound equitable and constitutional exceptions, particularly when the court's process is being abused or when the welfare of vulnerable populations is at stake. 26.The right to withdraw a suit, while substantial, is not a license for a litigant to engage in judicial guerrilla warfare. The very authority the Appellant cites in his submissions—Beijing Industrial Designing & Researching Institute v Lagoon Development Ltd eKLR —provides the explicit caveat that proves fatal to the Appellant's absolutist argument. 27.In the Beijing Industrial case, the Court of Appeal was confronted with a scenario where a plaintiff discontinued a suit precisely when an application for contempt of court was pending against them. The plaintiff sought to use Order 25 Rule 1 to escape accountability. The Court, referencing the House of Lords decision in Castanho v Brown & Root (UK) Ltd (1981), held that the termination of legal process by a notice of discontinuance could be prevented by the court under its inherent jurisdiction to prevent an abuse of the court's process. 28.Abuse of process is broadly defined as the improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope. It includes utilizing procedural rules as a mechanism of vexation, oppression, or to subvert the ends of justice. In Githunguri v Republic [1986] eKLR, it was established that the High Court is entitled to exercise its inherent jurisdiction to avert the abuse of power, discretion, or process. The Court will not allow its machinery to be misused as an instrument of injustice. 29.Applying this doctrine to the present appeal, the trial court record reveals a deeply troubling pattern of conduct by the Appellant. The Appellant voluntarily instituted the suit, making explosive, quasi-criminal allegations of fraud against the Respondent regarding the minors' Birth Certificates. By filing under a Certificate of Urgency and seeking temporary custody, the Appellant intentionally triggered the protective mechanisms of the state. This led the trial court to order a Comprehensive Children Officer's Report and mandated that the children undergo psychological assessment and counselling. 30.However, the moment the Respondent filed a Replying Affidavit—which not only vehemently denied the Appellant's allegations but produced documentary evidence suggesting the Appellant himself was the author of the forged Birth Certificates, detailed a history of severe domestic violence, and highlighted his failure to pay school fees—the Appellant swiftly moved to withdraw the suit. 31.During the mention on October 17, 2024, the Respondent's counsel explicitly argued that the suit was instituted in bad faith and that the withdrawal was a tactical retreat to evade the scrutiny of the pending Children Officer's Report and to avoid his financial obligations to the children. The trial Magistrate astutely noted that the suit appeared to have been brought in bad faith, and the children were already traumatized and undergoing counselling as a direct result of the Appellant's initial filings. 32.To permit a litigant to weaponize the court's processes—instituting a suit that disrupts the lives of minors, triggering state protective investigations, and then unilaterally pulling the plug on the proceedings the moment the evidentiary tide turns and his own misconduct is exposed—is the quintessence of an abuse of the court process. A litigant cannot use the jurisdiction of the Court as a sword to harass an opponent, and then invoke a Notice of Withdrawal as a shield to escape the consequences of his actions. 33.Guided by the principles in Beijing Industrial, this Court holds that the trial magistrate correctly recognized the Appellant's tactical withdrawal as an abuse of process. The trial court retained the inherent jurisdiction under Section 3A of the Civil Procedure Act to reject the Notice of Withdrawal to prevent the subversion of justice. The Paramountcy of the Child's Best Interests 34.While the abuse of process doctrine provides sufficient legal grounds to restrict the Appellant's procedural autonomy, the most compelling and insurmountable hurdle to the Appellant's case lies in the substantive constitutional law governing the welfare of children. 35.The Appellant's heavy reliance on commercial and civil precedents like Ochieng and Nicholas Salat is fundamentally flawed because those cases deal with standard civil disputes between adult, legally competent entities. Proceedings in a Children's Court are entirely distinct. They are governed by a specialized constitutional and statutory regime that fundamentally alters the traditional rules of civil engagement. 36.Article 53(2) of the Constitution states unequivocally:A child's best interests are of paramount importance in every matter concerning the child. 37.This constitutional dictate is not a mere guiding principle; it is a substantive right, a fundamental interpretative legal principle, and a strict rule of procedure. It is operationalized by the Children Act. Section 8(1) of the Act dictates that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative authorities, the best interests of the child shall be the primary consideration. 38.When a matter concerning a child is filed in court, the adversarial nature of litigation is heavily diluted. The Court ceases to be a mere neutral umpire observing a contest between two private parties. Instead, the Court assumes a parens patriae jurisdiction. 39.Under the doctrine of parens patriae, the state, acting through the courts, assumes the role of the ultimate guardian of individuals who cannot protect themselves, primarily children. In parens patriae proceedings, the concept of the plaintiff as the absolute dominus litis is extinguished. As articulated in comparative jurisprudence, the dispute is no longer comparable to one between private parties; the rights of those who bring the action on behalf of others must necessarily be subordinate to the interests of the minors for whose benefit the action is ostensibly brought. 40.As the Supreme Court observed in MAK v RMAA & 4 Others KESC 21, and the High Court affirmed in MAA v ABS eKLR, matters of child custody and maintenance are not fundamentally about the applicant and the respondent; their adversarial interests are secondary to the welfare of the children. Consequently, general procedural rules, including Order 25 of the Civil Procedure Rules, must be interpreted and applied in a manner that serves the best interests of the child. A procedural doctrine cannot override substantive constitutional rights, especially those of minors. 41.The Appellant argues that the trial court became functus officio upon the filing of the Notice of Withdrawal. In Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others eKLR, the Supreme Court defined functus officio as the principle that once a court has made its decision or fulfilled its function, its jurisdiction is exhausted. 42.However, in the realm of family law, this doctrine is heavily circumscribed. In the highly relevant case of PNK & another v AWW [2024] KEHC 8928, the Court directly addressed the applicability of the functus officio doctrine in children's matters. In PNK, a party attempted to withdraw a suit relating to child maintenance under Order 25 Rule 1. The Court definitively ruled that because the physical, psychological, and financial needs of children are continuously evolving, a Children's Court rarely becomes completely functus officio. The court retains a continuous supervisory jurisdiction over the welfare of the minor to periodically review, adjust, or vary orders as necessitated by evolving circumstances. 43.Similarly, in cases where a parent attempts to prematurely abort a suit to the detriment of the child, the court is legally obligated to intervene. The trial court's mandate does not end merely because the adult litigant finds the proceedings inconvenient. 44.In the present case, the Appellant initiated a suit raising profound concerns regarding the identity, custody, and potential illegal removal of the minors from the jurisdiction. The court ordered a Comprehensive Children Officer's Report. The Respondent raised severe counter-allegations regarding the Appellant's fitness as a parent, his alleged forgery of state documents, and his failure to provide maintenance. At this juncture, the holistic welfare of the minors was actively before the court. 45.Hon. Jackie Kibosia, PM, in her impugned ruling of October 25, 2024, explicitly stated:“This is a family matter, the Court MUST act in the best interest of the child. I do find that allowing the application will be detrimental to the welfare of the minors herein. The application is premature and thus disallowed." 46.This reasoning is legally unassailable and jurisprudentially sound. To permit the Appellant to arbitrarily withdraw the suit would mean abandoning the court-ordered psychological counselling of the children, aborting the investigation by the Children's Officer, leaving the grave allegations of forged identity documents unresolved, and ignoring the immediate issues of child maintenance identified during the proceedings. 47.The trial Magistrate correctly elevated the substantive constitutional mandate of Article 53(2) above the mechanical application of Order 25 Rule 1. Where the strict application of Civil Procedure Rules threatens the welfare of a child, those procedural rules must bow to the Constitution. The Appellant cannot be permitted to use the children as pawns in a litigation game, initiating proceedings when it suits his narrative and withdrawing them when his own conduct is placed under the judicial microscope. The Status of the Counterclaim and Substantive Justice 48.The final issue to be addressed is the Appellant's contention that the trial magistrate erred by allowing the Respondent's Counterclaim to proceed. The Appellant argues that the Counterclaim was filed out of time and after the Notice of Withdrawal was lodged. The timeline indicates the Notice of Withdrawal was filed on October 10, 2024, and the Defence and Counterclaim were filed on October 16, 2024. 49.Under Order 7 Rule 1 of the Civil Procedure Rules, a defendant has the statutory right to set up a counterclaim. The Appellant argues that since the withdrawal supposedly extinguished the primary suit on October 10, the counterclaim filed on October 16 was legally incompetent because there was no existing suit to which it could attach. The Appellant relies on principles establishing that a counterclaim filed after a valid withdrawal is barred. 50.However, this argument is entirely contingent upon the premise that the Notice of Withdrawal was valid and automatically effective. As this Court has comprehensively analysed and determined, the withdrawal was properly rejected by the trial court because it amounted to an abuse of process and severely contravened the best interests of the children. Because the Notice of Withdrawal was deemed legally ineffectual and disallowed by the trial court in its ruling of October 25, 2024, the primary suit remained alive and extant. 51.Consequently, the Defence and Counterclaim filed on October 16, 2024, successfully attached to a valid, subsisting suit. While the Appellant notes that the Defence may have been filed outside the strict 14-day statutory window (as the Respondent's appearance was entered on September 9), courts are guided by the overriding objective of justice. Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. 52.In matters involving the welfare of children, striking out a defence or a counterclaim over a procedural delay of a few weeks—thereby preventing the court from hearing substantive issues regarding a child's custody, maintenance, and protection from abuse—would be a gross miscarriage of justice. The trial Magistrate's directive to disregard the technical delay, retain the file, and proceed to a pre-trial conference on the substantive issues was procedurally sound, constitutionally mandated, and squarely within her jurisdiction. 53.Flowing from the exhaustive analysis above, this Court finds no error of law or fact in the decision of the lower court. Accordingly, this Court makes the following final orders:i.The appeal lacks merit and is hereby dismissed in its entirety.ii.Each party shall bear their own costs for this appeal. DATED AND DELIVERED AT NAIROBI THIS 14 DAY OF MAY 2026HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Court Assistant: Lucy MwangiPage 8 of 8