BACKGROUND
1. This matter has regrettably unfolded across multiple fora, with both parties engaging parallel proceedings in different courts in what appears to be a sustained attempt to outmanoeuvre one another. Following the dissolution of the marriage, both parties moved on with their respective lives. However, disputes regarding the minor children, Y.T. and A.T., have persisted and escalated.
2. The litigation has traversed the Kadhis’ Court, the Children’s Court, this Court, a constitutional petition, and administrative and police interventions. The result has been a fragmented custody landscape in which each forum has issued or been invited to issue competing orders.
3. In the Kadhis’ Court proceedings, custody orders were issued in favour of the Appellant and have not been appealed from.
4. Subsequent proceedings were instituted in MCCHCC E197 of 2026 before the Children’s Court, and thereafter interim proceedings were commenced before this Court, leading to ex parte orders and subsequent review orders issued on 30th April 2026.
5. The dispute has assumed the character of a protracted adversarial contest conducted across multiple judicial fora, akin to a boxing match in which successive rounds are fought in different rings rather than within a single coherent arena. Each of the warring parties has won a round or two in the different arenas .
6. The minors Y.T. and A.T. remain at the centre of this contest contrary to Article 53(2) of the Constitution, and sadly are receiving the blows as punching bags.
PLEADINGS AND APPLICATIONS
7. There are two applications before this Court dated 5th May 2026 and 7th May 2026 together with a Notice of Preliminary Objection dated 7th May 2026.
8. The application dated 5th May 2026 seeks reinstatement of interim custody orders issued earlier, review and setting aside of the orders of 30th April 2026, enforcement assistance through police officers, maintenance of the Kadhi’s Court decree of 26th September 2025, and any other orders deemed fit in the circumstances.
9. The Appellant’s case is that custody was lawfully granted to her by the Kadhi’s Court, that the Respondent failed to return the minors after lawful access during school holidays, and that she was compelled to seek urgent judicial intervention to secure custody and ensure continuity of education. The court granted her interim relief but two days later set aside those orders on the 30 th of April 2026, on the basis that she had failed to disclose the proceedings before the Children's court.
10. Her position is that she was not served with the proceedings before the children's court, and she therefore could not disclose what she was not aware of.
11. The application dated 7th May 2026 by the Respondent seeks to strike out the Appellant’s application as incompetent, defective, misleading, and an abuse of process. The Respondent further seeks preservation of the status quo and structured welfare supervision orders.
12. The Respondent alleges that the minors were experiencing emotional distress, bullying, and welfare challenges necessitating alternative arrangements. He further relies on proceedings in MCCHCC E197 of 2026, including in-camera interviews of the minors, and alleges that the events of 30th April 2026 resulted in trauma requiring medical attention.
13. The Notice of Preliminary Objection challenges the competence of the application dated 5th May 2026 on the basis that it invites this Court to sit on appeal over its ruling delivered on 30th April 2026.
ISSUES FOR DETERMINATION
14. From the pleadings and record, the Court identifies the following issues:
1.Whether the Preliminary Objection is merited
2.Whether this Court is exercising appellate jurisdiction or review jurisdiction
3. Whether there was proper service and compliance with fair hearing requirements
4.Whether the multiplicity of proceedings amounts to abuse of court process
5.Whether the welfare and best interests of the minors Y.T. and A.T. are being safeguarded
6.What final orders should issue.
ANALYSIS
Preliminary Objection
15. A preliminary objection must raise a pure point of law as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 . It must not be based on contested facts or require evidential inquiry.
16. In the present case, the objection raised by the Respondent is premised on the assertion that this Court is being invited to sit on appeal over its own orders of 30th April 2026.
17. However, the Court observes that the Appellant’s application is expressly grounded on review jurisdiction and not appellate jurisdiction. The court would be required to get into into a factual inquiry on the nature of the application, procedural history, and alleged non-disclosure.
On that ground, the Court finds that the Preliminary Objection is not properly founded in law.
18. Further the Court must clarify whether it is being improperly invited to sit on appeal over its own decision.
19. The application before the Court is brought under Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, which govern review jurisdiction.
20. In Nyamogo & Nyamogo Advocates v Kogo [2001] EA 174 , the Court held that review is available where there is discovery of new evidence, error apparent on the face of the record, or sufficient reason.
21. The jurisdiction exercised herein is therefore not appellate but supervisory in respect to the subordinate court and corrective in nature. In respect to the orders of this court.
22. The Court therefore finds that it is properly seized of jurisdiction to consider whether its earlier orders were issued on an incomplete factual foundation.
Based on these two reasons, the preliminary objection on Jurisdiction cannot stand and it is dismissed.
Service and Fair Hearing
23. The Court now turns to the issue of service, which goes to the heart of procedural fairness.
24. The Respondent did not file a substantive replying affidavit addressing service of MCCHCC E197 of 2026 or the allegations of non-disclosure. He filed a counter application and a preliminary objection.
25. The court called for the two files from the subordinate court. It is a fact that the matter proceeded before the Children’s court on an ex parte basis. The appellant demonstrated that the address used was not her correct email address and no further evidence was availed as proof of proper service . The respondent did not even attempt to demonstrate that the Appellant was properly notified of those proceedings. The only retort from the floor was that the proceedings before the Kadhi’s court were also ex-parte. I looked at the file Kd e190 of 2025, and there was service. If a party is served and they opt not to participate, then they cannot be seen to complain or use evasive tactics not to notify the other in future. In any case the appellant has not sought to set aside those orders nor has he appealed .
26. The Court further notes that the parties were previously in a known familial relationship, with established communication channels and direct access to each other.
27. In such circumstances, the Court is not persuaded that failure of service was accidental or excusable. Rather, the circumstances point to a calculated procedural strategy deployed within a contested custody dispute.
28. While the Court avoids making a conclusive finding of bad faith, the effect of the conduct is that the Appellant was deprived of a meaningful opportunity to participate in proceedings before the children’s court that materially affected custody of the children that she stated she has been living with since 2022.
29. The Court therefore finds that Article 50(1) of the Constitution on the right to a fair hearing was not fully complied with.
Multiplicity of Proceedings and Abuse of Process
30. The record shows that custody disputes between the parties have been pursued in the Kadhis’ Court, the Children’s Court, this Court, and through a constitutional petition.
31. This has resulted in parallel proceedings, overlapping orders, and procedural fragmentation.
32. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd [2009] eKLR , the Court held that abuse of process includes misuse of judicial process to achieve unfair advantage or to oppress the other party.
33. The Court finds that the multiplicity of proceedings has created inconsistency in custody arrangements and has complicated enforcement mechanisms, thereby undermining stability in the lives of the minors.
Welfare and Best Interests of the Children
34. Article 53(2) of the Constitution and Section 8 of the Children Act require that the best interests of the child be the paramount consideration in all matters concerning children.
35. The Court is satisfied that the minors Y.T. and A.T. have been subjected to prolonged parental conflict and instability arising from litigation across multiple fora.
36. In J.O. v S.A.O. [2016] eKLR , the Court held that custody disputes must not expose children to psychological harm or instability resulting from conflicting judicial interventions.
37. The Court therefore finds it necessary that the minors undergo counselling and psychological assessment by a qualified child psychologist under the supervision of the Children’s Officer.
38. The resulting report shall be filed before the Chief Magistrate’s Children’s Court and shall form part of the custody determination process.
39. The court has noted that there are counter allegations by the two sides and it would be best if a fresh Children’s court listens to and determines the custody issues after the children are counseled.
40. Accordingly, the court directs that the matter be heard at the Chief Magistrate Nairobi Children Court.
Review of Orders
41. The Court is guided by Tokesi Mansa & Co. Ltd v African Marine Transport Ltd [2004] 2 EA 567 , where it was held that review may be granted where material facts were not properly presented to the Court.
42. The Court finds that the orders issued on 30th April 2026 were made on a factual premise that is now materially undermined by doubtful service and incomplete disclosure of parallel proceedings.
43. The interests of justice therefore require that those orders be set aside.
DETERMINATION
44. The Preliminary Objection is dismissed.
45. The application dated 5th May 2026 is allowed.
46. The orders issued on 30th April 2026 are hereby set aside.
47. The custody dispute relating to the minors Y.T. and A.T. is transferred to the Chief Magistrate’s Children’s Court at Nairobi for hearing and determination.
48. The 3 files MCCHCC E197 of 2026 , MSA KDE 190 OF 2025 and this file, ,MSA KD E190 OF 2025 and this file, shall be transmitted forthwith.
49. The matter shall be mentioned before the Chief Magistrate’s Children’s Court at Nairobi on 15th June 2026.
50. The Respondent shall hand over the minors Y.T. and A.T. to the Appellant on or before 13th May 2026.
51. In default, enforcement shall be supervised by the County Children’s Officer, Mombasa County, together with the Officer Commanding Central Police Station, Mombasa and or Nairobi.
52. The Children’s Officers for Mombasa and Nairobi shall jointly file comprehensive welfare and psychological reports prior to the hearing.
53. The minors are to undergo counselling and psychological assessment by a qualified child psychologist under the supervision of the Nairobi County Children’s Office.
54. Each party shall bear its own costs.
CONCLUSION
52. Custody disputes are not adversarial contests across multiple fora but constitutional inquiries governed by the best interests of the child.
53. The welfare, stability, and psychological safety of the minors Y.T. and A.T. remain the paramount consideration of this Court. The parents who are medical personnel ought to know better than let their egos ruin the lives of these innocent lives. I urge sanity to prevail.
D ATED, SIGNED AND DELIVERED AT MOMBASA THIS 11 th DAY OF May 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of
For the Appellant :Mr. ABUBAKAR
For the RESPONDENNNNT: Mr.EGUNZA
1. This matter has regrettably unfolded across multiple fora, with both parties engaging parallel proceedings in different courts in what appears to be a sustained attempt to outmanoeuvre one another. Following the dissolution of the marriage, both parties moved on with their respective lives. However, disputes regarding the minor children, Y.T. and A.T., have persisted and escalated.
2. The litigation has traversed the Kadhis’ Court, the Children’s Court, this Court, a constitutional petition, and administrative and police interventions. The result has been a fragmented custody landscape in which each forum has issued or been invited to issue competing orders.
3. In the Kadhis’ Court proceedings, custody orders were issued in favour of the Appellant and have not been appealed from.
4. Subsequent proceedings were instituted in MCCHCC E197 of 2026 before the Children’s Court, and thereafter interim proceedings were commenced before this Court, leading to ex parte orders and subsequent review orders issued on 30th April 2026.
5. The dispute has assumed the character of a protracted adversarial contest conducted across multiple judicial fora, akin to a boxing match in which successive rounds are fought in different rings rather than within a single coherent arena. Each of the warring parties has won a round or two in the different arenas .
6. The minors Y.T. and A.T. remain at the centre of this contest contrary to Article 53(2) of the Constitution, and sadly are receiving the blows as punching bags.
PLEADINGS AND APPLICATIONS
7. There are two applications before this Court dated 5th May 2026 and 7th May 2026 together with a Notice of Preliminary Objection dated 7th May 2026.
8. The application dated 5th May 2026 seeks reinstatement of interim custody orders issued earlier, review and setting aside of the orders of 30th April 2026, enforcement assistance through police officers, maintenance of the Kadhi’s Court decree of 26th September 2025, and any other orders deemed fit in the circumstances.
9. The Appellant’s case is that custody was lawfully granted to her by the Kadhi’s Court, that the Respondent failed to return the minors after lawful access during school holidays, and that she was compelled to seek urgent judicial intervention to secure custody and ensure continuity of education. The court granted her interim relief but two days later set aside those orders on the 30 th of April 2026, on the basis that she had failed to disclose the proceedings before the Children's court.
10. Her position is that she was not served with the proceedings before the children's court, and she therefore could not disclose what she was not aware of.
11. The application dated 7th May 2026 by the Respondent seeks to strike out the Appellant’s application as incompetent, defective, misleading, and an abuse of process. The Respondent further seeks preservation of the status quo and structured welfare supervision orders.
12. The Respondent alleges that the minors were experiencing emotional distress, bullying, and welfare challenges necessitating alternative arrangements. He further relies on proceedings in MCCHCC E197 of 2026, including in-camera interviews of the minors, and alleges that the events of 30th April 2026 resulted in trauma requiring medical attention.
13. The Notice of Preliminary Objection challenges the competence of the application dated 5th May 2026 on the basis that it invites this Court to sit on appeal over its ruling delivered on 30th April 2026.
ISSUES FOR DETERMINATION
14. From the pleadings and record, the Court identifies the following issues:
1.Whether the Preliminary Objection is merited
2.Whether this Court is exercising appellate jurisdiction or review jurisdiction
3. Whether there was proper service and compliance with fair hearing requirements
4.Whether the multiplicity of proceedings amounts to abuse of court process
5.Whether the welfare and best interests of the minors Y.T. and A.T. are being safeguarded
6.What final orders should issue.
ANALYSIS
Preliminary Objection
15. A preliminary objection must raise a pure point of law as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 . It must not be based on contested facts or require evidential inquiry.
16. In the present case, the objection raised by the Respondent is premised on the assertion that this Court is being invited to sit on appeal over its own orders of 30th April 2026.
17. However, the Court observes that the Appellant’s application is expressly grounded on review jurisdiction and not appellate jurisdiction. The court would be required to get into into a factual inquiry on the nature of the application, procedural history, and alleged non-disclosure.
On that ground, the Court finds that the Preliminary Objection is not properly founded in law.
18. Further the Court must clarify whether it is being improperly invited to sit on appeal over its own decision.
19. The application before the Court is brought under Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, which govern review jurisdiction.
20. In Nyamogo & Nyamogo Advocates v Kogo [2001] EA 174 , the Court held that review is available where there is discovery of new evidence, error apparent on the face of the record, or sufficient reason.
21. The jurisdiction exercised herein is therefore not appellate but supervisory in respect to the subordinate court and corrective in nature. In respect to the orders of this court.
22. The Court therefore finds that it is properly seized of jurisdiction to consider whether its earlier orders were issued on an incomplete factual foundation.
Based on these two reasons, the preliminary objection on Jurisdiction cannot stand and it is dismissed.
Service and Fair Hearing
23. The Court now turns to the issue of service, which goes to the heart of procedural fairness.
24. The Respondent did not file a substantive replying affidavit addressing service of MCCHCC E197 of 2026 or the allegations of non-disclosure. He filed a counter application and a preliminary objection.
25. The court called for the two files from the subordinate court. It is a fact that the matter proceeded before the Children’s court on an ex parte basis. The appellant demonstrated that the address used was not her correct email address and no further evidence was availed as proof of proper service . The respondent did not even attempt to demonstrate that the Appellant was properly notified of those proceedings. The only retort from the floor was that the proceedings before the Kadhi’s court were also ex-parte. I looked at the file Kd e190 of 2025, and there was service. If a party is served and they opt not to participate, then they cannot be seen to complain or use evasive tactics not to notify the other in future. In any case the appellant has not sought to set aside those orders nor has he appealed .
26. The Court further notes that the parties were previously in a known familial relationship, with established communication channels and direct access to each other.
27. In such circumstances, the Court is not persuaded that failure of service was accidental or excusable. Rather, the circumstances point to a calculated procedural strategy deployed within a contested custody dispute.
28. While the Court avoids making a conclusive finding of bad faith, the effect of the conduct is that the Appellant was deprived of a meaningful opportunity to participate in proceedings before the children’s court that materially affected custody of the children that she stated she has been living with since 2022.
29. The Court therefore finds that Article 50(1) of the Constitution on the right to a fair hearing was not fully complied with.
Multiplicity of Proceedings and Abuse of Process
30. The record shows that custody disputes between the parties have been pursued in the Kadhis’ Court, the Children’s Court, this Court, and through a constitutional petition.
31. This has resulted in parallel proceedings, overlapping orders, and procedural fragmentation.
32. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd [2009] eKLR , the Court held that abuse of process includes misuse of judicial process to achieve unfair advantage or to oppress the other party.
33. The Court finds that the multiplicity of proceedings has created inconsistency in custody arrangements and has complicated enforcement mechanisms, thereby undermining stability in the lives of the minors.
Welfare and Best Interests of the Children
34. Article 53(2) of the Constitution and Section 8 of the Children Act require that the best interests of the child be the paramount consideration in all matters concerning children.
35. The Court is satisfied that the minors Y.T. and A.T. have been subjected to prolonged parental conflict and instability arising from litigation across multiple fora.
36. In J.O. v S.A.O. [2016] eKLR , the Court held that custody disputes must not expose children to psychological harm or instability resulting from conflicting judicial interventions.
37. The Court therefore finds it necessary that the minors undergo counselling and psychological assessment by a qualified child psychologist under the supervision of the Children’s Officer.
38. The resulting report shall be filed before the Chief Magistrate’s Children’s Court and shall form part of the custody determination process.
39. The court has noted that there are counter allegations by the two sides and it would be best if a fresh Children’s court listens to and determines the custody issues after the children are counseled.
40. Accordingly, the court directs that the matter be heard at the Chief Magistrate Nairobi Children Court.
Review of Orders
41. The Court is guided by Tokesi Mansa & Co. Ltd v African Marine Transport Ltd [2004] 2 EA 567 , where it was held that review may be granted where material facts were not properly presented to the Court.
42. The Court finds that the orders issued on 30th April 2026 were made on a factual premise that is now materially undermined by doubtful service and incomplete disclosure of parallel proceedings.
43. The interests of justice therefore require that those orders be set aside.
DETERMINATION
44. The Preliminary Objection is dismissed.
45. The application dated 5th May 2026 is allowed.
46. The orders issued on 30th April 2026 are hereby set aside.
47. The custody dispute relating to the minors Y.T. and A.T. is transferred to the Chief Magistrate’s Children’s Court at Nairobi for hearing and determination.
48. The 3 files MCCHCC E197 of 2026 , MSA KDE 190 OF 2025 and this file, ,MSA KD E190 OF 2025 and this file, shall be transmitted forthwith.
49. The matter shall be mentioned before the Chief Magistrate’s Children’s Court at Nairobi on 15th June 2026.
50. The Respondent shall hand over the minors Y.T. and A.T. to the Appellant on or before 13th May 2026.
51. In default, enforcement shall be supervised by the County Children’s Officer, Mombasa County, together with the Officer Commanding Central Police Station, Mombasa and or Nairobi.
52. The Children’s Officers for Mombasa and Nairobi shall jointly file comprehensive welfare and psychological reports prior to the hearing.
53. The minors are to undergo counselling and psychological assessment by a qualified child psychologist under the supervision of the Nairobi County Children’s Office.
54. Each party shall bear its own costs.
CONCLUSION
52. Custody disputes are not adversarial contests across multiple fora but constitutional inquiries governed by the best interests of the child.
53. The welfare, stability, and psychological safety of the minors Y.T. and A.T. remain the paramount consideration of this Court. The parents who are medical personnel ought to know better than let their egos ruin the lives of these innocent lives. I urge sanity to prevail.
D ATED, SIGNED AND DELIVERED AT MOMBASA THIS 11 th DAY OF May 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of
For the Appellant :Mr. ABUBAKAR
For the RESPONDENNNNT: Mr.EGUNZA