https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6262

WWM v KKK (Miscellaneous Application E024 of 2021) [2026] KEHC 6262 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 6262 (KLR) Republic of Kenya In the High Court at Nakuru Miscellaneous Application E024 of 2021 SM Mohochi, J May 7, 2026 Between WWM Applicant and KKK Respondent Ruling Background 1.This instant interlocutory cause was filed on 13th July 2021 by the Applicant (WWM) against the Respondent (KKK) and was further refiled on 18th August 2021. The Subject was then three (3) years old. The Court on the 28th September 2021, upon being persuaded of the Respondent’s (KKK) mental health condition allowed the Application and granted an interim relief dispensing with the service of the Application upon the KKK. 2.The Interim relief then granted was finding the subject to need care and protection thereby granting actual custodial order of the subject to WWM and the Application was marked as spent. 3.The Respondent (KKK) subsequently filed Nakuru Chief Magistrate’s Children’s Case No E036 of 2023 which case was a custody suit for the subject, on her part WWM filed her counter-claim and the suit was heard and disposed off with judgment being entered in favor of the WWM on the 14th March 2024. 4.The decision in this Application dated 28th September 2021 was never contested either in Appeal or review and the fact that KKK moved to the Court with jurisdiction and filed the Nakuru Chief Magistrate’s Children’s Case No E036 of 2023 is indicative of the awareness by the parties of this instant Application having been spent. 5.Before Court for determination is KKK’s Notice of Motion Application dated 27th January 2026 brought under Section 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules Section 8 and 25 of the Children Act 2022, and the Inherent Jurisdiction of the Court). KKK is seeking the following twelve (12) reliefs: -i.Spentii.That the ex-parte orders issued by this Honourable Court on 28th September 2021 granting temporary custody to the Applicant and/or restricting the Respondent's access be set-aside and vacated ab initio for being a nullity.iii.That the Respondent's Psychiatric Evaluation Report dated 18th November 2025, be admitted into the record under seal and be reviewed in-camera by the Presiding Judge to determine the Respondent's current parental fitness,iv.That this Honourable Court be pleased to issue a Mandatory Injunction directing the Nakuru Sub-County Children's Office to conduct an urgent welfare assessment and file a Comprehensive Welfare Report within seven (7)days regarding the minor. GZW, specifically addressing allegations of brutal punishment and psychological distressv.That pending the hearing and determination of this application, this Honourable Court be pleased to grant Interim Legal and Physical Custody of the minor, GZW, to the Respondent, with structured and supervised access to the Applicant, in the best interests of the child.vi.That this Honourable Court do issue a Mandatory Order compelling the Applicant to hand over the minor to the Respondent within 24 hours of the service of this Order, with the assistance of the OCS, Lanet Police Station, or the Administrative Chief, Umoja Location - Lanet Area, if necessary.vii.That all medical and psychiatric records currently held in any registry of the Judiciary of Kenya-specifically in the High Court (E025 of 2021) and the Magistrate Court (8036 of 2023) be redacted, sealed, and removed from public access.viii.That the Applicant to surrender all copies of these records in her possession or control within 14 days for an in-camera review by the Court.ix.That the Applicant to swear an affidavit detailing exactly how she obtained the records, whether consent was provided, and which third parties have accessed this sensitive data.x.That this Honourable Court be pleased to STAY the proceedings in Nakuru Children's Case No. E036 of 2023 pending the determination of the jurisdictional question or until this Court issues further directions on the transfer of the consolidated matter.xi.That this Honourable Court be pleased to call for the original record and file of Nakuru Children's Case No. E036 of 2023 for the purpose of perusal and to ensure a holistic determination of the minor's welfare and the jurisdictional overlap with the present matter.xii.That the costs of this application be borne by the Applicant. KKK’s Case 6.The Application was premised on the following grounds;a.That the Respondent was never served with the 2021 Application, rendering the resulting orders a procedural nullity and a violation of the Right to a Fair Trial under Article 50(1) of the Constitution.b.That the Applicant willfully misled the Court by deponing that the Respondent was "mentally unfit to be served," a claim built on illegally obtained, disputed and outdated medical recordsc.That the Respondent is currently seeking a review of judgment in Magistrate's Case E036 of 2023; however, as a Magistrate cannot vary High Court Orders, this Court's intervention is a condition precedent to the fair disposal of the matter.d.That the Magistrate's Court has failed to act on a child protection request filed on 27th November 2025. The minor is currently subjected to physical harm and bullying, necessitating the High Court's intervention as the Super-Guardian of all children.e.That the Department of Children Services (DCS) has already issued a summons for a psychological assessment of the minor, confirming a state-recognized emergency that requires judicial enforcement.f.That the Respondent has a meritorious claim and wishes he be given an opportunity to be heard.g.That there are weighty and important issues of law and fact which raise a serious and arguable response to the Respondents allegations and as such, Respondent's application herein ought to be heard and determined on merit.h.That the Applicant will not suffer any prejudice if this application is allowed.i.That the minor is being subjected to aggravated physical assault through the use of wooden implements and systematic psychological grooming aimed at alienating her from her father.j.That unless the judgment is stayed, reviewed and or set aside, the Applicant's application, and the resulting orders issued thereof, will continue to expose the minor, GZW, to psychological, emotion and physical torture.k.That, it is in the interest of justice, equity, and fairness that this Court grants the orders sought to overrule the status quo pending the hearing and determination of this application. WWM’s Submission 7.It is WWM’s submission that, this application, at its core, is an attempt by the KKK (father) to set aside valid custody orders through collateral means, without demonstrating any legal or factual basis to warrant such interference. 8.That, KKK and WWM were married in 2017 and are blessed with one child, a minor girl. In 2020, KKK chased WWM and the minor from the matrimonial home, forcing them to leave and WWM to assume sole day-to-day care of the child. 9.In 2021, when the minor had just commenced schooling at about three (3) years of age, KKK forcefully took the child from school without the KKK's consent. This incident prompted WWM to move this Court, for urgent need and protection of the minor which granted her custody orders through Misc. Application No. E025 of 2021. 10.That in 2023, KKK filed Nakuru Children's Case No. E036 of 2023 seeking maintenance and custody. However, he failed to prosecute the matter, and the Court consequently affirmed custody in favor of WWM, while granting KKK supervised access, particularly on Fridays during lunch hours. 11.That, WWM has since continuously had care and custody of the child to date while KKK has continued to have supervised access to the minor of Fridays during lunch hours. That, it is within this context that the present application must be understood. 12.The Applicant KKK being the father of the minor now seeks to reopen custody issues already determined, by challenging earlier custody orders and indirectly seeking to overturn the outcome of the 2023 determination, rather than pursuing the proper avenue of appeal review or revoking the said orders issued by the Court. 13.Notably, he has approached this Court through the 2021 file, despite custody having been substantively determined in 2023, thereby creating procedural confusion and attempting to circumvent an unfavorable judgment. 14.That while it is appreciated that Section 107 of the Children Act grants this Court the power to revoke or vary custody orders, that power is not exercised as a matter of course. 15.That the law is clear that where a party has previously moved the Court on custody, such as in Nakuru Children's Case No. E036 of 2023, and the matter was determined-whether on merit or by failure to prosecute-the Court cannot entertain a similar application unless there is a demonstrated material change in circumstances or other sufficient cause. In the present case, KKK has not demonstrated any such change. 16.That there is no evidence that the subject is at risk, WWM is unfit, or the current custody arrangement is no longer in the best interests of the child. 17.Instead, KKK, having failed to prosecute his case in 2023, now seek to revisit the same issue through the 2021 file, which is a clear attempt to circumvent an unfavorable outcome. 18.That, Section 107(2) does not permit a party to re-litigate custody simply because they failed to pursue their earlier case, to allow this application would be to sanction abuse of the Court process and it provides as follows: -“(2)The Court shall not proceed to hear an application made for the revocation of a custody order where a prior application made in that regard by the same applicant has been refused by that Court or any other Court of competent jurisdiction, unless-(a)in refusing the previous application, the Court directed that this subsection shall not apply; or(b)it appears to the Court that, by reason of a change in the circumstances or for and other good reason, it is proper to proceed with the application” 19.Reliance is placed on the case of Jacob Kiptoo Sembele v Josephine Gicuku Irgri [2020] KERC 2733 (KLR) the Court while faced with a similar situation on whether to revoke a custody order of children with tender age observed that in determining an application for stay of such orders is that, the Court must be complemented by an overriding consideration of the best interest of the child in accordance with Article 53 (2) of the Constitution which provides that:-“child's best interest are of paramount importance in every matter concerning the child."The Court stated,"In addressing these issues, the Court should consider the provisions on survival and best interest of the child as espoused by Section 121(1) of the Children Act:1 (2) In all actions concerning children, whether undertaken by public or private social welfare institutions, Court of law, administrative authorities or legislative bodies, the beat interests of the child shall be a primary consideration.(3)All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child:(c)secure for the child much guidance and correction if necessary for the welfare of the child and in the public interest." 20.That, the Learned Judge also observed that it is in the best interests of children of tender years to remain with their mother, except where exceptional circumstances are demonstrated. In that regard, the Court cited the case of I.O ν SI (2016) KLR, which states as follows:“There is a plethora of decisions by this Court as well as the High Court that in determining matters of custody of children and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother because mothers are best suitable to exercise care and control of the children” 21.Exceptional circumstances include the mother being unsettled where the mother has taken a new husband, where she is living in quarters that are in deplorable state, or where her conduct are disgraceful and/or Immoral. 22.That, in this matter KKK has not demonstrated or provided any evidence of such exceptional circumstances. What KKK has raised is merely a general but important concern, alleging that the child is being bullied at school-a matter which the WWM has adequately addressed by engaging the school and resolving the issue, as deponed in her Replying Affidavit. At no point has KKK demonstrated that WWM, who is the mother, is unfit to care for the child, or that she has subjected the miner to any cruelty or abuse whatsoever. 23.This matter concerns a child of tender years as provided under Section 2 of the Children’s Act, who has, since early childhood, remained in the custody of WWM. At no point has the Respondent denied KKK access to the child, indeed, the arrangement has been that he visits the child at school every Friday during lunch time. 24.That, even if KKK wishes to vary these arrangements, there are proper legal avenues to do so, rather than reopening issues that have already been conclusively determined. Section 107 of the Children Act provides that, a custody order remains in force until the child attains the age of eighteen (18) years, unless varied or revoked upon sufficient cause being shown. 25.That, in the present case, the minor is only eight (8) years old, and no sufficient basis has been laid before this Court to warrant any variation of the existing custody orders. There is no demonstrated material change in circumstances or any evidence that the welfare of the minor is compromised under the current arrangement. 26.Instead, KKK is merely seeking to reopen matters that have already been determined by this Court through an improper procedural route. 27.Additionally, on the issue of KKK's medical records, the Respondent submits that this is not a new issue or determination before this Court. 28.The question of the alleged disclosure and use of KKK's medical records was already raised and formed part of the issues in Nakuru Children's Case No. E036 of 2023, where KKK himself was the Plaintiff seeking custody. 29.However, KKK failed to prosecute that matter to its conclusion, and the Court proceeded to determine the dispute in favor of WWM. 30.That KKK cannot now be permitted to revive and re-litigate the same issue through the present proceedings under the guise of challenging custody arrangements or seeking collateral relief. 31.That to do so would amount to an attempt to reopen a matter that was already before a Court of competent jurisdiction and conclusively determined, contrary to the principles of finality in litigation. 32.In the premises, WWM submits that, the application by KKK is misconceived and an abuse of the Court process, and respectfully prays that it be dismissed with costs to her. Analysis and Disposition 33.I have perused and read the lengthy Application, the response thereto together with the filed submissions for and against. 34.The single issue for determination is whether KKK has met the legal threshold for an order of review on account of the error apparent on the face if the record. 35.The Jurisdiction of this Court to grant review is well set out in the law. Section 80 of the Civil Procedure Act states that:“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit”. 36.Section 63 (e) of the Civil Procedure Act states that:“In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed make such other interlocutory orders as may appear to the Court to be just and convenient 37.Order 45 Rule 1 of the Civil Procedure Rules provides for Review and it states as follows:“(1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay.2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review” 38.In reference to the reasoning of Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994 he stated as follows;“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the Court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every Court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.” 39.From the provisions of Order 45 (1) (b) of the Civil Procedure Rules, it must be shown that there was an error or omission on the part of the Court that needs correction. If there was a discovery of new and important matter discovered after the order sought to be reviewed. From the application and the supporting affidavit, no error on record that needs to be corrected has been pointed out. In addition to the above, there is also no new evidence discovered after the order in issue was issued. 40.KKK was alive of this Miscellaneous Application its outcome and elected not to challenge or contest the same opting to rightfully commence a child custody suit before the children’s Court which suit was equally determined in judgment. 41.I unfortunately observe that it is apparent that the differences between the parents is being transferred to the subject of tender years with lifelong and devastating effect. The child chose her parents before birth, she is innocent and free from the prejudice of both parents and the Court bleeds in the heart by reading the pleadings by both parties, their language tone and inclination that has very minimal aspect of the interests of the subject and is a spurring theater by adults that are clearly emotive of their own strained relationship, this Court would desire that both parties act in the best interests of the child of tender years. 42.The Court is further aware of a Pending Application filed herein alleging that the Respondent subsequent to him filing the Application did kidnap the subject in total disregard of the Court Order. No directions are yet to be made in the Application but this Court urges the Respondent to urgently consider reverting to conditions prevailing before the alleged kidnap of the minor. 43.It is clear that the Respondent is forum shopping having been fully alive to the judgment in Nakuru Chief Magistrate’s Children’s Case No E036 of 2023 that was never contested and remains in force. The issues being raised in the application were already determined and the Court made its decision. 44.In National Bank of Kenya Limited v Ndungu Njau [1997] eKLR where the Court of Appeal stated as follows;“In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same Court which had adjudicated upon it.” 45.Finally, any Application for review and setting aside must be made without unreasonable delay which is not the case in this instance where the Respondent has moved the Court fifty-one (51) months after the ruling sought to be reviewed. 46.However, the fatality of the Application lies in the fact that the order sought to be reviewed was spent on the 14th March 2024 where the children’s Court granted actual custody of the minor to the mother of the subject in a suit instituted for the same by the Respondent herein. 47.An attempt to review a spent order in the face of a valid unchallenged judgment is ingenious at best and this Court is unpersuaded. 48.From the foregoing, I find this application has not met the threshold for review under Order 45 (1) (b) of the Civil Procedure Rules. 49.The application dated 27th January 2026 is without merit and the same is dismissed. 50.I am inclined to grant costs of this Application assessed at Kshs.30,000/- to be paid to WWM. 51.I direct that the Pending Application shall be mentioned before the Deputy Registrar before being placed before a judge in Nakuru for directions. It is So Ordered. SIGNED, DATED AND VIRTUALLY DELIVERED AT NAKURU THIS 7TH DAY OF MAY, 2026.MOHOCHI S.M(JUDGE)