[2022] KEHC 12052 (KLR)

TM v LAW (Civil Appeal E117 of 2021) [2022] KEHC 12052 (KLR) (Family) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12052 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E117 of 2021

MA Odero, J

May 13, 2022

Between

TM

Petitioner

and

LAW

Respondent

(Being an appeal from the ruling and/or orders of the Honourable G.M. Gitonga (Mr) Principal Magistrate given on the 24th day of September 2021)

Judgment

1. Before the court for determination is the notice of motion dated October 12, 2021 by which the applicant TM sought for orders that -“1. Spent.2. Spent.3. Pending the hearing and determination of this appeal, this honourable court to order a stay of execution of the orders delivered by the Honourable Mr Gitonga (Principal Magistrate) delivered on September 24, 2021 in the Children’s Court of Kenya at Milimani Law Courts in Nairobi in Children’s Cause No 1156 of 2016. 4.Spent.5. This honourable court be pleased to set aside the orders issued by Hon. Gitonga on the September 24, 2021 and grant the applicant Unsupervised access to the minor child pending the hearing and determination of the appeal6. In the alternative and without prejudice to the foregoing, this Honourable court do set aside the orders issued by Hon Gitonga on the September 24, 2021 allowing the applicant/appellant Unsupervised Access to the minor every weekend from Saturday 10:00 to Sunday 4:00 pm from October 16, 2021, pending the hearing and determination of the appeal.7. Spent.8. Spent.9. Any other relief that the court may deem fit to grant.10. Costs of this application be borne by the respondent.”

2. The application was premised upon sections 1A, 1B, 3 & 3A of the Civil Procedure Act, cap 21, laws of Kenya, order 51 of the Civil Procedure Rules cap 21 laws of Kenya and article 53 (2) of the Constitution of Kenya, section 80 of the Children Act 2001 and all other enabling provisions of the law and was supported by the affidavit of even date sworn by the applicant.

3. The respondent LOW opposed the application through her replying affidavit dated November 15, 2021 and further replying affidavit dated November 15, 2021. The application was canvassed by way of written submissions. The applicant filed the written submissions dated February 17, 2022 whilst the respondent relied upon her written submissions dated February 17, 2021.

Background 4. The applicant is the biological father and the respondent is the biological mother of the subject child DOM who was born on December 19, 2013.

5. The applicant is an Italian national who has lived and worked in Kenya since 2014 whilst the respondent is a Kenyan who works and lives in Australia only visiting Kenya from time to time. The couple met and commenced a relationship in Australia, which led to the conception and birth of their son in Australia.

6. In Milimani Children’s Court Suit Case 115 of 2015 the respondent herein vide a plaint dated August 27, 2015 sought to be awarded custody of the minor. She also sought that the applicant be granted supervised access to the child and prayed for maintenance of Kshs 115,000 per month.

7. The suit was opposed and the applicant counterclaimed for equal parental maintenance and unlimited unsupervised access to the child. The children’s court in a judgment delivered on December 8, 2016 awarded joint legal custody to both parents but awarded actual custody care and control of the minor to the respondent. The court further granted the applicant supervised access and directed both parties to attend counselling. For maintenance, the court directed that Kshs 55,000 per month be paid by the applicant towards the minors upkeep as well as half of the child’s school fees and other school related expenses. The order on supervised access was to be reviewed every four (4) months.

8. Being dissatisfied with this judgment the applicant filed in the High Court Civil Appeal No 122 of 2016 challenging the decision of the Children's Court. The appeal was heard by Hon Justice Onyiego who in his judgment dated July 26, 2019 dismissed the same for lack of merit.

9. Thereafter the respondent moved to the High Court vide the application dated November 27, 2018 seeking orders to compel the applicant sign consent forms to enable her relocate with the minor to Australia where she had secured a job which offered better terms and would enable her to take better care of the child.

10. In responding to the application of November 27, 2018 the applicant filed a notice of preliminary objection dated December 11, 2018 in which he raised amongst others the issue of jurisdiction.

11. Hon Justice Muchelule heard the application and the preliminary objection together and vide his ruling dated January 24, 2019 found that the court with original jurisdiction to determine the application was the Children’s Court.

12. The parties continued to file various applications before the Children’s Court leading to a ruling by Hon MW Kibe Resident Magistrate delivered on May 6, 2020 in which she ordered that the applicant shall be allowed unsupervised access to the minor to enable father and son to attend counselling sessions jointly. The court further directed that the orders granting applicant unsupervised access were subject to review upon application by either party upon completion of the counselling sessions.

13. Still not satisfied the parties continued with their flurry of applications. The Respondent then filed in the Children’s Court a chamber summons dated December 18, 2020 seeking to be permitted to relocate to Australia with the child in order to enable her take up her new job. She also prayed that the orders for unsupervised access granted be reviewed and that the applicant be granted periodical supervised access to the minor.

14. On his part the appellant filed a notice of motion dated March 25, 2021 seeking that pursuant to the orders issued on May 6, 2020 by Hon Kibe he be issued new dates for access to the minor and that the court direct that the OCS of the nearest police station assist in the implementation of the access orders.

15. These two applications were heard by Hon PM Gitonga Principal Magistrate who in a ruling delivered on September 24, 2021 the trial court allowed the respondent/mother’s prayer to relocate to Australia with the child and in addition made the flowing orders regarding access:-“i.The defendant/father shall have access to the child while in Australia by way of video calls or skype for at least 15 minutes on every Sunday, Wednesday and Friday of the week.ii.The plaintiff/mother shall facilitate such communication and non-compliance shall lead to revocation of custody orders.iii.The defendant/father shall have unsupervised access to the child on every school holidays for at least 7 days herein in Kenya.iv.During such school holidays, the plaintiff/mother shall facilitate the minor’s travel to Kenya while the defendant/father shall facilitate the return ticket.v.For clarity and avoidance of doubt the orders for unsupervised access to the child by the defendant is based on the understanding that the defendant and the child shall build upon the counselling sessions they both had and the virtual access granted for 3 days in a week, however, the defendant shall deposit his passport in court during the time of such unsupervised access.vi.Should the defendant desire to travel with the child out of court’s jurisdiction to italy or any other country, he shall make a formal application impose such conditions as will enable the court to supervise the same.vii.The plaintiff/mother shall provide in court as well as to the defendant’s advocate her home and office address both postal and physical. As a result, the travelling ban imposed on the child’s passport shall be automatically lifted.viii.Within the first 30 days of the plaintiff’s travelling with the child, the plaintiff shall furnish the court and the defendant’s advocates the particulars of the childs school and school schedules including school holidays for purposes of planning of access by defendant.ix.Mention to confirm filing of the same on November 12, 2021. ”

16. It is this ruling that forms the basis of the application before this court. Still being dissatisfied with the ruling of September 24, 2021 the applicant filed the memorandum of appeal dated October 12, 2021. Contemporaneously with the said appeal the appellant/applicant filed this notice of motion seeking the setting aside and stay of the orders made pending the hearing and determination of his appeal.

17. The respondent was aggrieved that the orders of supervised access which had earlier been granted by Hon Gichana were later reviewed by Hon Kibe who granted the applicant unsupervised access to the child.

18. The applicant claims that though he is an Italian citizen he relocated to Kenya in the year 2015 and has lawfully resided in this country since then. He avers that though he has always desired to be present in the life of his son he is yet to spend even one day with the child. That his efforts to be an active presence in the life of the minor have been futile as the child was placed in the custody of the respondent parents and the respondent now seek to relocate with the child to Australia.

19. The applicant stated that he opposed the orders allowing the respondent to re-locate with the child to Australia as he had not been allowed adequate opportunity to bond with said child. He wishes to be granted adequate time to bond with the minor before his departure to a new country. He submits that the learned trial magistrate failed to consider his wishes as a biological parent. The applicant urged that without the intervention of this court, he will remain a stranger to his son and the minor will re-locate to a new country without the input of his father.

20. The application was strenuously opposed by the respondent. She submitted that the lower court granted the applicant supervised access to the minor due to his violent and bad temper. That he is violent and aggressive which scares the child. She argued that the application has only been filed to frustrate and punish her as there already exists a parental responsibility agreement entered into by the parties in July 2014 by which it was agreed that the minor should reside and study in his country of birth which is Australia.

21. The respondent further states that the minor has been in her care since his birth. That she was forced to return to Kenya to seek moral and emotional support from her family after the applicant abandoned her and the child in Australia when said child was only a few weeks old. That at some point she was forced to resign from a lucrative job in Australia after the applicant threatened to block her departure with the child. She contended that the orders made by the court allowed the applicant adequate access to the minor.

22. The applicant opined that due to the strained relationship between the minor and the applicant it would not be in the best interests of the minor to stay in Kenya. That the child himself desires to relocate overseas and to see his father periodically. That her parents have all along been living with and caring for her child and it is time she took up that responsibility and let her parents to enjoy their retirement. That the applicant in any case has not been the child in the last eighteen 18 months. That the present application is prejudicial to her and the minor and pleads that litigation must come to an end. The respondent urges the court to dismiss this application and to allow her to relocate to Australia where she will be able to provide the child with a good life.

Analysis and Determination 23. I have carefully considered this application. The replying affidavit as well as the written submissions filed by both parties. It is not for the court at this stage to delve into the merits of otherwise of the intended appeal. All that this court is required to do is to determine whether the prayers sought in this application are merited.

24. It is important to note at the outset this matter concerns the welfare and well-being of a child.

25. 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.”

26. 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”. (Own emphasis)

27. In the case of Bhutt v 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 Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “Article 53(2) oftheConstitution.” (Own emphasis)

28. I reiterate that in making a decision on this matter this court will be guided solely by the best interests of the child. The wishes and desires of the parents are secondary.

29. The applicant has asked the court to stay the orders made by the learned magistrate on September 24, 2021. As stated earlier it is not for the court at this stage to delve into the merits or otherwise of the intended appeal. The only issue for determination in this application is whether the stay orders issued in this matter should be set aside. Order 42 rule 6 of the Civil Procedure Rules 2010 provides as follows:-“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.

30. In the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi, Civil Appeal No 326 of 2013 it was stated that:-“to my mind, the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;a)Whether the applicant has established that he/she has a prima facie arguable case.b)Whether the application was filed expeditiously andc)Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought”.

31. The impugned ruling was delivered on September 24, 2021. The present application was filed on October 12, 2021 barely three (3) weeks after said ruling was delivered. Accordingly, I find that the application for stay was filed in a timeous manner.

32. The applicant does not appear to be opposed to the respondents plaints to relocate with the minor to Australia. He complains that the has not been granted adequate time to bond with the minor prior to his departure to a foreign country. What the applicants seeks to take issue with is the quantity of access that has been allowed to him as well as the fact that the access was ordered to be supervised. The only question the court needs to ask itself is whether the stay being sought will serve the best interests of the child. The answer is no.

33. Indeed as a court I am of the view that the intended relocation of the child to Australia would serve the best interest of the minor. The child is an Australian citizen and as such will be entitled to the benefits (including educational benefits) which would be derived from such citizenship. Secondly, the child will be living with one his parents as opposed to his grandparents and finally the child would be removed from the ‘toxic’ atmosphere occasioned by the numerous court cases filed by the parents against each other. Finally the respondent has secured employment in Australia which will enable her provide a comfortable living for the child.

34. In its orders of September 24, 2021 the trial court made elaborate orders to provide for the access of the applicant (father) to the child by way of video calls and skype and unsupervised access during the childs school holidays.

35. The respondent was also directed to provide to the court as well as to the respondents advocate details of both her home and office address in australia as well as details of the school in which the child will be enrolled.

36. I must say I am finding great difficulty in comprehending exactly what part of said orders the applicant objects to. Unless the applicant intends to also relocate to Australia (which is not indicated). I find that the orders of access are adequate. To stay the orders of September 24, 2021 would in my view be detrimental to the child as his life and education would in effect be put the childs life on hold whilst his parents continue their never-ending court battles to satisfy their own egos.

37. Section 83 of the Children Act 2001 sets out the factors to be considered in making an award of custody. Section 83 (d) provides that the court must consider the ascertainable wishes of the child. I note from the report of the counselling psychologist (Annexture 5-“LAW 5”) that the child indicated his preference to live with his mother and to see his father periodically. At this point what I would wish to tell the parties is that litigation must come to an end. It is enough. This continuous stream of applications and counter-applications is simply exhausting. This legal battle has been ongoing since 2015 a full six (6) years. At some point, the parties have to accept and move on.

38. The fact that the child is not a party to the suit and applications filed in court does not mean that the cases do not affect him. Children are extremely sensitive and are able to intuitively pick up on the vibes around them, concerning their parents.

39. As I have stated earlier it is not about the parents. It is about the child. My assessment is that the two (2) adults in this matter have decided to go at it hammer and tongs without any consideration of how emotionally damaging this battle is for the child they both claim to love above all else.

41. Currently as things stand actual custody of the subject child is vested in the respondent/mother. Flowing from such order of custody the respondent ought to be able to move with her child to any place where she has been able to secure employment. This is more so given the very tight job markets here in Kenya. The custodial parent ought not be faced with having to make a choice to either give up a lucrative job offer or take up the offer and leave the child behind. This would be detrimental to the child.

42. The orders made on September 24, 2021 allow for the relocation of the child and his mother to a more peaceful environment. The child will be enrolled in school and will be able to start a new life and build new acquaintances and friendships. A stay would only delay this progression and would therefore be detrimental to the child. The life of the child ought not be held in limbo, while the parents continue to engage in legal battles. It would be unreasonable and prejudicial to the child to force he and his mother to forgo better opportunities abroad and keep them waiting in Kenya whilst the applicant can seeks orders for more access. In any even the applicant, it would appear is an ‘international citizen’. He has lived in Italy, Australia and now Kenya. I have no doubt that the applicant will be in a positon to see and interact with his son even if the child relocates to Australia with his mother.

41. In my view no prejudice will be suffered by the applicant as the trial court has made adequate directions for his access including unsupervised access whilst the child is on holidays. I find no merit in this application. The same is dismissed in its entirety. This being a family matter each party shall bear its own costs.

DATED IN NAIROBI THIS 13TH DAY OF MAY 2022. …………………………………MAUREEN A ODEROJUDGE