[2023] KEHC 25416 (KLR)

SPA v AB (Children's Appeal Case E010 of 2023) [2023] KEHC 25416 (KLR) (Family) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25416 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Children's Appeal Case E010 of 2023

EKO Ogola, J

November 14, 2023

Between

SPA

Appellant

and

AB

Respondent

Ruling

1. The Application before this court is dated February 6, 2023. The appellant prays for the following:-a.Spent;b.That pending the hearing and determination of the application an order do issue for stay of execution of the warrants of arrest issued on the January 27, 2023 in Children case MCHCC No E 1504 of 2022;c.That an order do issue setting aside the warrants of arrest dated January 27, 2023 in Children case MCHCC No E 1504 of 2022;d.That an order do issue for rehearing of the application dated the September 30, 2022 inter-parties and the hearing of the case before another magistrate other than Hon F Terer;e.Costs of this application be provided for.

2. To put matters into context, the respondent instituted proceedings in Children Case No E1504 of 2022 vide a Plaint dated September 30, 2022. The appellant and the respondent met sometime in 2002 in the United States of America where they began an intimate relationship. They sired a son POA who was born in 2008. The parties then moved to Tanzania and later on to Kenya. In 2016, they legalized their union in the USA. The marriage later soured and sometime in 2017, the parties separated. In June 2021, the parties entered a Custody sharing agreement in the USA. However, according to the respondent, the appellant on several occasions breached the said agreement. The respondent now prays the trial court to grant her primary legal custody, care, and control of their child.

3. Alongside the Plaint, the respondent filed an application praying for inter alia that the appellant be restrained from taking the minor out of the country, that is, out of the jurisdiction of the court. On October 6, 2022, the trial court granted the said prayer.

4. When the matter was before the trial court on January 24, 2023, the respondent and advocates for both parties were present in court. The respondent claimed that she was having difficulties accessing the child. The trial court gave directions that the child be produced in court. The respondent subsequently filed an application dated January 25, 2023 praying for orders inter alia for the appellant to be issued with a Notice to Show cause why he should not be punished for contempt of court since he had removed the child out of the jurisdiction of the country in contravention of the court’s direction dated October 6, 2022. On January 27, 2023, the appellant and advocates for both parties were present in court. However, the child had not been produced in court as had been directed. The appellant informed the court that the child had travelled out of the country on January 23, 2023. Consequently, the trial court issued a warrant of arrest against the appellant for him to show cause why he disobeyed the court’s orders.

5. Aggrieved with the Ruling of the trial court, the appellant preferred an appeal vide a Memorandum of Appeal dated February 6, 2023 on the grounds inter alia that he had not been accorded a fair hearing since he had not been served with the application dated January 25, 2023. Alongside the Memorandum of Appeal is the application that is the subject of this ruling.

6. The application was based on the grounds set out therein and the Supporting Affidavit of the appellant. He averred that he was not privy to the court’s order dated January 24, 2023 requiring the minor to be produced in court and the order that the minor was not to be removed from the jurisdiction of the court. The appellant deposed that he learnt of this order after he and the minor had travelled out of the country. Since he was out of the country he couldn't attend court in person. According to the appellant, the travel was urgent due to his father’s critical ill health.

7. Further to this, the appellant contended that during the court proceedings, he was not availed an opportunity to explain the circumstances that led him and the child to travel.

8. The appellant deposed that he had been vested with sole physical custody and temporary sole custody of the child by the court in Butte California, orders that are still active. He reiterated that he attempted to explain this to the trial court, but he was not accorded any audience. The appellant deposed that due to his non-appearance, Hon. Terer issued warrants of arrest. He contended that if orders sought are not granted, the child will be left unattended and without parental care which is contrary to the best interest of the child.

Determination 9. I have considered the application and affidavit as filed and the record of the trial court.

10. The trial court on October 6, 2022 directed that the child should not be taken out of the country. In opposition to the respondent’s application dated September 30, 2022, the appellant filed a Notice of Preliminary Objection, Grounds of Opposition, and Replying Affidavit all dated November 8, 2022. Therefore, the appellant cannot claim to be ignorant of the court’s order of October 6, 2022.

11. The warrant of arrest issued against the appellant was for the disobedience of the court order dated October 6, 2022 and not for the disobedience of the order dated January 24, 2023. The trial court in its Ruling dated January 27, 2023 stated as follows:-“This court made an order on October 6, 2022 directing the child to remain within the court’s jurisdiction. The said order has not been set aside or varied. The defendant has just informed me that he had violated the said order. In the circumstances, I find that he is in disobedience of the said order. Henceforth, he does not have an audience in this court until he complies with the said order. In the same view, I issue a warrant of arrest against him to show cause why he has disobeyed the said order.”

12. Both the appellant and his advocate were aware of the court’s direction dated October 6, 2022. The appellant’s actions to travel with the minor were a blatant disregard and intentional disobedience of the court order. In the case of MN –vs– TAN & another [2015] eKLR a case which is on all fours with the present case the court held as follows:-“A valid court order has to be obeyed or complied with regardless of how aggrieved a party is about it. The order has the force of law. It is not a mere wish or proposition. Disobedience or non-compliance with it attracts severe consequences. It would appear to me that the appellant believes that the orders of July 30, 2013 are not valid, and has explained why he has chosen to disregard or disobey them. Yet he is bound to obey the orders for as long as they are still in force. He has no choice, he cannot decide when and how to obey or comply with them.

13. The appellant annexed to his Replying Affidavit a ‘General Affidavit’ dated September 9, 2022 sworn in Nairobi by the Vice Consul of the United States of America. The affidavit confirmed the authenticity of the court order dated September 9, 2021 by the court in Butte California giving the appellant sole physical custody of the child. Further to this, it is deposed in the said affidavit that the child has been in the appellant’s custody and living with the minor in Nairobi since the order came into effect.

14. The Constitution of Kenya 2010 provides at article 53 (2) that:“(2)A child’s best interests are of paramount importance in every matter concerning the child.”

15. Likewise Children Act at section 4(2) provides as follows:-“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

16. In the case of Bhutt vs. Bhutt – Mombasa HCCC No. 8 of 2014, the Court held as follows:-“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution order 42 rule 6 of the Civil ProcedureRules, must be complemented by overriding consideration of the best interest of the child in accordance with “article 53(2) of the Constitution.”

17. From the foregoing, there is no concrete reason why the child should be out of the jurisdiction of this court. Therefore, I find no merit in the application dated February 6, 2023. The same is dismissed in its entirety. For the avoidance of doubt, the orders of January 27, 2023 made by the Children's Court in Case No E 1504 of 2022 remain valid and enforceable. This being a family matter I made no orders on costs.

It is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 14TH DAY OF NOVEMBER 2023. .......................E.K. OGOLAJUDGE