1. I have considered the application dated 13 April 2026. The Applicant seeks an order transferring Tononoka Children's Case No. MCCHCC/E500/2025 from the Children's Court at Tononoka to the Principal Magistrate's Court at Kyuso. The respondent did not appear at the hearing of the application despite having been allocated a specific time at the call over of the cause list. The court nonetheless proceeded to determine the application based on its merits having considered the replying affidavit and all documentation on the court record.
2. The application is premised principally on the contention that the minors presently reside in Kyuso and that the welfare agencies presently involved in the matter are located within that jurisdiction. The Applicant contends that transfer would better serve the welfare and best interests of the children.
3. The Respondent opposes the application. He contends that the matter was properly instituted before the Tononoka Children's Court when the minors were residing in Mombasa and under his custody. He further contends that the Applicant unlawfully removed the minors from Mombasa contrary to existing court orders and that there are pending contempt proceedings before the Children's Court arising from those allegations.
4. The jurisdiction of this Court to transfer proceedings from one subordinate court to another is not in dispute. Section 18 of the Civil Procedure Act vests such power in the High Court. The issue is whether the circumstances of this case warrant the exercise of that discretion.
5. Transfer of proceedings is not granted as of right. The Court must consider all relevant circumstances, including the interests of justice, convenience of the parties, avoidance of prejudice and, in matters concerning children, the paramount principle that the best interests of the child shall be the primary consideration under Article 53(2) of the Constitution and section 8 of the Children Act.
6. Having considered the material before the Court, I am unable to agree with the Applicant that the best interests of the children presently favour transfer of the proceedings.
7. First, the evidence before the Court discloses a serious dispute regarding the circumstances under which the minors came to be in Kyuso. The Respondent's case is that the Applicant removed the minors from Mombasa during a period of supervised access and thereafter failed to return them as required by court orders. Those allegations form the basis of pending contempt proceedings before the Tononoka Children's Court.
8. Without making any conclusive findings on the merits of those allegations, this Court cannot ignore the fact that there are subsisting accusations that the present state of affairs was created through unilateral action by one party in disregard of court orders. If indeed the children were removed from the jurisdiction of the trial court contrary to existing orders, it would be inimical to the administration of justice for that party to rely upon the resulting change of residence as a basis for obtaining a transfer.
9. Secondly, the record reveals that the Tononoka Children's Court has actively managed the dispute from its inception. It has issued interim custody and access orders, directed the preparation of social inquiry reports, referred the matter to mediation and continues to supervise compliance with its orders. The same court is also seized of allegations of contempt arising directly from those proceedings.
10. In my view, continuity of judicial supervision is particularly important in disputes involving competing claims of custody and access. The court that has managed the matter from the outset is presently best placed to evaluate compliance with its own orders and determine the issues pending before it.
11. Thirdly, I have considered the Children's Officer's report relied upon by the Applicant. It raises serious concerns about the mental health of the Plaintiff and makes recommendations that the children remain with their farther. The report must therefore be viewed in its entirety. It cannot be selectively relied upon only insofar as it supports transfer while disregarding those aspects that raise concerns regarding the Applicant's own conduct.
12. The best interests principle requires the Court to safeguard the children's welfare and emotional wellbeing, but it equally requires the Court to promote and preserve meaningful relationships with both parents wherever possible.
13. I am not inclined to ordere a transfer in circumstances where there exists a reasonable apprehension that it may have the practical effect of legitimising or rewarding conduct that has allegedly frustrated lawful access and contact arrangements.
14. Finally, the Applicant has not demonstrated that the proceedings cannot effectively continue before the Tononoka Children's Court. Our court processes permit virtual appearances where necessary. Social inquiry reports may be obtained from officers situated in other jurisdictions. Indeed, the Tononoka Children's Court has already engaged officers from outside Mombasa in the implementation of its orders. The Court is therefore not persuaded that the continued hearing of the matter in Tononoka would occasion such prejudice or hardship as would justify transfer.
15. Based on the reasons set out above, I find that the Applicant has not established sufficient grounds to warrant the exercise of this Court's discretion under section 18 of the Civil Procedure Act.
16. The Notice of Motion dated 13th April 2026 is hereby dismissed with costs in the cause.
17. For the avoidance of doubt, Tononoka Children's Case No. MCCHCC/E500/2025 shall remain before the Children's Court at Tononoka for hearing and determination, including all pending applications.
2. The application is premised principally on the contention that the minors presently reside in Kyuso and that the welfare agencies presently involved in the matter are located within that jurisdiction. The Applicant contends that transfer would better serve the welfare and best interests of the children.
3. The Respondent opposes the application. He contends that the matter was properly instituted before the Tononoka Children's Court when the minors were residing in Mombasa and under his custody. He further contends that the Applicant unlawfully removed the minors from Mombasa contrary to existing court orders and that there are pending contempt proceedings before the Children's Court arising from those allegations.
4. The jurisdiction of this Court to transfer proceedings from one subordinate court to another is not in dispute. Section 18 of the Civil Procedure Act vests such power in the High Court. The issue is whether the circumstances of this case warrant the exercise of that discretion.
5. Transfer of proceedings is not granted as of right. The Court must consider all relevant circumstances, including the interests of justice, convenience of the parties, avoidance of prejudice and, in matters concerning children, the paramount principle that the best interests of the child shall be the primary consideration under Article 53(2) of the Constitution and section 8 of the Children Act.
6. Having considered the material before the Court, I am unable to agree with the Applicant that the best interests of the children presently favour transfer of the proceedings.
7. First, the evidence before the Court discloses a serious dispute regarding the circumstances under which the minors came to be in Kyuso. The Respondent's case is that the Applicant removed the minors from Mombasa during a period of supervised access and thereafter failed to return them as required by court orders. Those allegations form the basis of pending contempt proceedings before the Tononoka Children's Court.
8. Without making any conclusive findings on the merits of those allegations, this Court cannot ignore the fact that there are subsisting accusations that the present state of affairs was created through unilateral action by one party in disregard of court orders. If indeed the children were removed from the jurisdiction of the trial court contrary to existing orders, it would be inimical to the administration of justice for that party to rely upon the resulting change of residence as a basis for obtaining a transfer.
9. Secondly, the record reveals that the Tononoka Children's Court has actively managed the dispute from its inception. It has issued interim custody and access orders, directed the preparation of social inquiry reports, referred the matter to mediation and continues to supervise compliance with its orders. The same court is also seized of allegations of contempt arising directly from those proceedings.
10. In my view, continuity of judicial supervision is particularly important in disputes involving competing claims of custody and access. The court that has managed the matter from the outset is presently best placed to evaluate compliance with its own orders and determine the issues pending before it.
11. Thirdly, I have considered the Children's Officer's report relied upon by the Applicant. It raises serious concerns about the mental health of the Plaintiff and makes recommendations that the children remain with their farther. The report must therefore be viewed in its entirety. It cannot be selectively relied upon only insofar as it supports transfer while disregarding those aspects that raise concerns regarding the Applicant's own conduct.
12. The best interests principle requires the Court to safeguard the children's welfare and emotional wellbeing, but it equally requires the Court to promote and preserve meaningful relationships with both parents wherever possible.
13. I am not inclined to ordere a transfer in circumstances where there exists a reasonable apprehension that it may have the practical effect of legitimising or rewarding conduct that has allegedly frustrated lawful access and contact arrangements.
14. Finally, the Applicant has not demonstrated that the proceedings cannot effectively continue before the Tononoka Children's Court. Our court processes permit virtual appearances where necessary. Social inquiry reports may be obtained from officers situated in other jurisdictions. Indeed, the Tononoka Children's Court has already engaged officers from outside Mombasa in the implementation of its orders. The Court is therefore not persuaded that the continued hearing of the matter in Tononoka would occasion such prejudice or hardship as would justify transfer.
15. Based on the reasons set out above, I find that the Applicant has not established sufficient grounds to warrant the exercise of this Court's discretion under section 18 of the Civil Procedure Act.
16. The Notice of Motion dated 13th April 2026 is hereby dismissed with costs in the cause.
17. For the avoidance of doubt, Tononoka Children's Case No. MCCHCC/E500/2025 shall remain before the Children's Court at Tononoka for hearing and determination, including all pending applications.