REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC CAUSE NO. 53 OF 2017
IN THE MATTER OF F. B. E. V.B. (MINOR)
IAVB…………………………….………………………………..APPLICANT
VERSUS
FBHVB…………………………………………………..……RESPONDENT
RULING
BACKGROUND
1. The Applicant and Respondent herein are the Parents of the minor herein. Following an application by the Respondent the Court on 3rd August 2017 issued orders requiring that the child remain within the jurisdiction of the Court till further orders and that the Department of immigration services would enforce the order by notifying all entry and exit points.
2. The Applicant now moves the court vide Notice of Motion dated 28th February 2023, seeking to have those orders reviewed and the travel ban be lifted. The Respondent also prays that the Respondent be barred from interfering with her travel arrangements.
3. The Application is supported by the Affidavit of the Applicant sworn on 28th February 2023.
4. The Applicant avers that the Respondent secured orders that limit the movement of the minor.
5. That these orders were obtained in a custody dispute case between the respondent and the Applicant. That upon securing the orders the Applicant left the County and has not been in touch with either the Applicant or the minor.
6. The Applicant filed a suit in the Children’s Court at Kisii, Children’s Case No. 20 of 2020 in which she was granted sole custody of the minor on 24th February 2021. The Respondent did not participate in that case.
7. The Applicant has now secured admission at the University of Gottingen, Germany in a residential programme. Her studies are set to commence on 11th January 2023.
8. She has also secured admission for the minor at Grundschule Dramfeld ( Dramfeld Elementary School, where he is required to report on 12th April 2023.
9. The Applicant contends that she has been the sole caregiver for the child ever since they parted ways with the biological further and that she has the means to provide for the needs of the child.
10. She avers that it is in the best interests of the child if she is allowed to travel with the child and for this reason the travel restriction ought to be lifted.
11. The Court examined the minor. He appears not to have a recollection of his biological father. He is happy to travel to Europe.
ANALYSIS AND DETERMINATION
12. The issue for determination is; whether the court should lift the travel restrictions imposed on the minor.
13. Article 53(2) of the Constitution of Kenya provides: A child's best interests are of paramount importance in every matter concerning the child.
14. The minor in this application is aged 9 years. His mother has secured an opportunity to go study in Germany. She is keen to proceed for her studies.
15. With the ban in force it would mean that the mother would proceed to Germany and live the Child in Kenya. This is clearly not in the child’ s interests.
16. The Biological Father of the Child was served with the application he has not challenged it.
17. It is not in the interests of the Child to be separated from both parents. Especially in the instant case where the Father of the Child has not communicated with the chid for close to 5 years.
18. Although the applicant seeks for orders barring the Respondent from interfering with her travel plans no basis has been laid on which the court can grant the orders. I therefore decline to issue that order.
19. The Applicant has persuaded the court that earlier orders of the Court should be revised give the change in circumstances and the best interests of the child.
20. Accordingly, it is ordered;
a. THAT the orders of the Court issued on 12th July 2019 are vacated
b. THAT the travel restriction imposed on the minor F.B.E.V.B Holder of Kenyan passport number AK 0498946 and holder of Danish Passport Number 213805224 is hereby lifted.
c. THAT this order be served on the Director of Immigration services to facilitate the travel of the Minor outside of the Country on condition that all other legal requirements are met.
21. No order as to costs
It is so ordered.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this 10th day of March 2023.
…………………………
P M NYAUNDI
JUDGE
In the presence of:
Ms. Masaki for Applicant Advocates for the Petitioner/ Applicant
Karani Court Assistant
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC CAUSE NO. 53 OF 2017
IN THE MATTER OF F. B. E. V.B. (MINOR)
IAVB…………………………….………………………………..APPLICANT
VERSUS
FBHVB…………………………………………………..……RESPONDENT
RULING
BACKGROUND
1. The Applicant and Respondent herein are the Parents of the minor herein. Following an application by the Respondent the Court on 3rd August 2017 issued orders requiring that the child remain within the jurisdiction of the Court till further orders and that the Department of immigration services would enforce the order by notifying all entry and exit points.
2. The Applicant now moves the court vide Notice of Motion dated 28th February 2023, seeking to have those orders reviewed and the travel ban be lifted. The Respondent also prays that the Respondent be barred from interfering with her travel arrangements.
3. The Application is supported by the Affidavit of the Applicant sworn on 28th February 2023.
4. The Applicant avers that the Respondent secured orders that limit the movement of the minor.
5. That these orders were obtained in a custody dispute case between the respondent and the Applicant. That upon securing the orders the Applicant left the County and has not been in touch with either the Applicant or the minor.
6. The Applicant filed a suit in the Children’s Court at Kisii, Children’s Case No. 20 of 2020 in which she was granted sole custody of the minor on 24th February 2021. The Respondent did not participate in that case.
7. The Applicant has now secured admission at the University of Gottingen, Germany in a residential programme. Her studies are set to commence on 11th January 2023.
8. She has also secured admission for the minor at Grundschule Dramfeld ( Dramfeld Elementary School, where he is required to report on 12th April 2023.
9. The Applicant contends that she has been the sole caregiver for the child ever since they parted ways with the biological further and that she has the means to provide for the needs of the child.
10. She avers that it is in the best interests of the child if she is allowed to travel with the child and for this reason the travel restriction ought to be lifted.
11. The Court examined the minor. He appears not to have a recollection of his biological father. He is happy to travel to Europe.
ANALYSIS AND DETERMINATION
12. The issue for determination is; whether the court should lift the travel restrictions imposed on the minor.
13. Article 53(2) of the Constitution of Kenya provides: A child's best interests are of paramount importance in every matter concerning the child.
14. The minor in this application is aged 9 years. His mother has secured an opportunity to go study in Germany. She is keen to proceed for her studies.
15. With the ban in force it would mean that the mother would proceed to Germany and live the Child in Kenya. This is clearly not in the child’ s interests.
16. The Biological Father of the Child was served with the application he has not challenged it.
17. It is not in the interests of the Child to be separated from both parents. Especially in the instant case where the Father of the Child has not communicated with the chid for close to 5 years.
18. Although the applicant seeks for orders barring the Respondent from interfering with her travel plans no basis has been laid on which the court can grant the orders. I therefore decline to issue that order.
19. The Applicant has persuaded the court that earlier orders of the Court should be revised give the change in circumstances and the best interests of the child.
20. Accordingly, it is ordered;
a. THAT the orders of the Court issued on 12th July 2019 are vacated
b. THAT the travel restriction imposed on the minor F.B.E.V.B Holder of Kenyan passport number AK 0498946 and holder of Danish Passport Number 213805224 is hereby lifted.
c. THAT this order be served on the Director of Immigration services to facilitate the travel of the Minor outside of the Country on condition that all other legal requirements are met.
21. No order as to costs
It is so ordered.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this 10th day of March 2023.
…………………………
P M NYAUNDI
JUDGE
In the presence of:
Ms. Masaki for Applicant Advocates for the Petitioner/ Applicant
Karani Court Assistant