REPUBLIC OF KENYA
1. The Applicant filed a Notice of Motion Application dated 10 th February, 2026 supported by the affidavit of the Applicant, J.M.M sworn on even date seeking the following orders:
i) spent
ii) THAT the Honourable Court be pleased to exercise its supervisory jurisdiction call and or order for the transfer of Ruiru Chief Magistrate's Children Case No. E040 of 2024 to the Chief Magistrates Children's Court in Nairobi.
iii) THAT the Court do make such order or further orders as it may deem fair and just in the interest of justice and in the best interest of the child.
Applicant’s case
2. The Applicant deposed that the Respondent herein resides in Kitengela yet has filed Children Case No. E040 of 2024 at the Ruiru Law Courts where the Respondent is the plaintiff. The Applicant exhibited the plaint in the instant Application marked JMO1 .
3. The Applicant who is the defendant in the Children case deposed that since separating with the Respondent, she has been residing in Lavington, Nairobi with the minor who is now the subject of the children case at Ruiru Law Courts. The Applicant further discloses that the minor schools at Nairobi where the Applicant and her husband, without discrimination, have been providing for all his basic needs.
4. The Applicant deponed that on 23rd January 2026, the Magistrate’s Court at Ruiru issued an order directing the medical Superintendent, Ruiru Level 4 Hospital to assign the minor a Child Psychologist to be attending to the minor and the relevant parent on Saturdays per the Court order exhibited and marked JMM2.
5. The Applicant deposes that in compliance with the said order, she attempted to book an appointment with the Child Psychologist at the Ruiru Level 4 as directed by the Court. She was directed to the Counselling Department. However, she was informed that the hospital does not have a Child Psychologist counsellor. Furthermore, she was informed that even if such a specialist were available, it was not possible to provide the service on a Saturday as directed by the Court.
6. In addition, the Applicant deposes that Ruiru Law Courts lacks the requisite geographical jurisdiction to adjudicate the instant children's matter based on the following reasons:
a) The child resides with the Applicant in Lavington within Nairobi County .
b) The plaintiff (the Respondent in this Application) resides in Kitengela, Kajiado County.
c) Ruiru Level 4 Hospital, where the court referred the child for Child psychological Counselling does not offer the service.
d) the Applicant is apprehensive that the Respondent forum shopped the Ruiru court which is within Kiambu County.
e) Nairobi Milimani Children court is central and will serve the convenience required by the child, the respondent and the Applicant.
f) That the court without sufficient reasons dismissed a preliminary objection which raised the issue of geographical jurisdiction.
Respondent’s Case
7. In response, the Respondent filed a Replying Affidavit sworn by STEPHEN MULI KIMONDU on 26 th February, 2026.
8. The Respondent confirmed that he filed Ruiru Children Case Number E040 0f 2024 on 28 th May, 2024 at the Ruiru Magistrate’s Court which the Applicant responded to by filing a Preliminary Objection dated 20 th June, 2024 founded on Section 15 of the Civil Procedure Act ( annexure SMK 1 ).
9. After a hearing, the Preliminary Objection was dismissed on 16 th September, 2024.
10. Subsequently, the matters proceeded with the hearing of the Main Application which was also heard and a Ruling delivered on 27 th January, 2025.
11. That prior to the hearing of the main suit, the Applicant then filed an application in which she sought orders that the Respondent attends mandatory counselling by a Child Counsellor based in Nairobi and that the access rights to the child be suspended pending counselling and appropriate guidance and a comprehensive children report be filed as the first one contained factually incorrect information. The Court heard the matter and delivered its decision on 12 th September, 2025 in which it directed the child will continue visiting the Therapist based in Nairobi and would be introduced to the Respondent through the said Therapist ( Court Ruling annexure SKM 4 ).
12. The matter was then set for hearing but the Respondent complained to the Court the order of 12 th September was not complied with. Further that, the Therapist who had allegedly authored the report presented by the Applicant in Court had denied it and informed the Respondent’s Advocate that she had only attended to the minor once. It is for this reason that the Court ordered that the child be produced by the Applicant before a Therapist based at Ruiru Level 4 Hospital (per the Court order of 28 th January, 2026 annexure SMK 6).
13. Ruiru Level 4 Hospital however responded vide letter dated 9 th February, 2026 (annexure SMK 7) indicating that it does not have a designated Child Psychologist.
14. The Respondent deponed that the Applicant raised the issue of jurisdiction in the Preliminary Objection which the Court determined and dismissed in its Ruling of 16 th September, 2024, consequently, the Respondent depones that the matter is res-judicata and is thus incapable of being reopened.
15. The Respondent depones that transferring the matter would only occasion unnecessary delay as it has advanced substantively and Ruiru Court is almost concluding the same. The Respondent contends that Ruiru Law Courts is a duly constituted Magistrate’s Court with proper jurisdiction and competence to hear and determine the matter.
16. The Applicant affirms that He has always been open and flexible regarding the appointment of a Therapist hence there is no need to transfer the matter to Milimani Law Courts and thus, the transfer is intended to delay the matter and would not serve the best interest of the child, which according to the Respondent would best be served if the matter remains at Ruiru Law Courts for hearing and determination.
Applicant’s Submissions
17. The Applicant filed her written submissions dated 1 st April, 2026 through R.W. MBANYA & Company Advocates.
18. Counsel submitted that the Applicant and the Respondent are biological parents of the minor, L.W, born on 12 th November, 2018 but the parents have not been living together. Counsel submitted that in January, 2019, barely two months after the minor was born, the Applicant left the matrimonial due to irreconcilable differences. The Applicant now resides in Lavington with the minor while the Respondent lives in Kitengela.
19. The Applicant submitted that the Respondent filed Ruiru Children Case No. E40 of 2024. He granted supervised access on alternate Saturdays vide the orders of 24 th January, 2025 but the minor did not respond well to the said access arrangements as it caused the child to have adverse effects that included bed wetting, repeated crying, night mares and intense anxiety. The Applicant further submitted that the Respondent further failed to show up on several occasions leaving the child confused thereby necessitating the involvement of a Counsellor to protect the minor’s emotional well-being.
20. According to the Applicant, on 23/1/2026, the Court directed the Medical Superintendent at Ruiru Level 4 was directed to assign the minor a Child Psychologist who will be attending to the Child and relevant parent on Saturdays but a follow up by the Applicant confirmed that such professional services were not available at the facility.
21. Submitting on the issue of need to transfer this matter from Ruiru Law Courts to Nairobi Milimani Children Court, the Applicant reiterated that the Respondent resides in Kitengela, while the Applicant and the minor have since separation been residing in Lavington Nairobi. The minor, L.W attends school in Nairobi. She urged the Court to invoke and apply Section 18 of the Civil Procedure Act in the best interests of the minor as required by Section 8 (2) of the Children Act, 2022 arguing that
“the subject minor being in Nairobi, his rights and welfare would be best safeguarded, conserved and promoted by the exercise of judicial power by children’s court within the minor’s territorial jurisdiction, that is the Children’s Court in Nairobi.’
22. Counsel relied on the decision of JM vs AN JN [2017] eKLR where the Court held that the interests of the child are paramount and supersede the rights and interests of the parties in the suit.
23. Responding to the submission by the Respondent that the present Application is a delay tactic in view of the fact that the Preliminary Objection had been previously raised on the grounds of jurisdiction and dismissed, the Applicant submitted that this Application is not an Appeal or re-litigation , but an application brought on basis of the overriding consideration of the minor and practical realities that have since emerged in the course of the proceedings such as the orders issued by the Court directed at Ruiru Level 4 Hospital which could not be implemented for lack of a specialist to provide the service, which was/is prejudicial to the minor.
24. Counsel further cited the case of re HJO (minor) [2017] KEHC 956 (KLR) where the Court held the best interests of the child that could inform the best forum for the child included considering where the minor lives, where he goes to school and who has the physical custody of the child. Further reliance was placed on LNW v COO (Miscellaneous Application E258 of 2024] (2025) KEHC 624 (KLR).
Respondent’s Submissions
25. The Respondent filed submissions dated 13 th March, 2026 through Parsena Sornet & Company Advocates.
26. Counsel reiterated the jurisdiction of the Children Court as stipulated in Section 91 of the Children Act, 2022, the general principles that should guide proceedings under Section 95 of the Act and also, Article 53 (1) (c ) & (2) of the Constitution. On behalf of the Respondent, Counsel argued that in children matters, jurisdiction is not determined by the convenience of a litigant but the statutory mandate. In the instant case, the Applicant submitted that the Magistrate Court at Ruiru has jurisdiction to hear and determine the matter. To buttress the Respondent’s submissions; Counsel relied On the re Estate of RNM (minor) (2020) eKLR the Court held that the Magistrate’s Court Act Cap 10 Laws of Kenya Section 3 (2) gives the Court countrywide jurisdiction notwithstanding where the defendant resides or where the cause of action arose and in the event of conflict with the Civil Procedure Act, the Magistrate’s Court Act would be applicable legislation giving the Children Court country wide jurisdiction.
27. Further cited was the case of GKK V ANK & Anor (2021) where the Court held, citing the Ugandan Case of David Kabungu vs Zikarenga HCCC No. 36 of 1995 that Section 18 of the Civil Procedure Act gives the general power of transfer and the power may be exercised even suo muto but as a general rule, the Court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice.
28. On whether the transfer serves the best interest of the child, the Respondent contended that the Court ought to consider that the has been actively been managed by Ruiru Children Court and the issue of Therapy sessions has been addressed through various court orders hence transferring the matter would cause delay and disrupt the sessions ordered by Ruiru Children’s Court. That transferring the matter could stall the implementation of the orders which will negate the child’s best interests.
29. Other authorities relied upon by the Applicant include FSL v FNK, Civil Appeal E060 of 2021 [2022] eKLR and BOO v JAO [2021] KEHC 4581 eKLR.
Analysis and Determination
30. The core issue for determination in this Application is whether this Court should transfer Ruiru Chief Magistrate's Children Case No. E040 of 2024 to the Nairobi Chief Magistrates Children's Court in Nairobi.
31. The instant Application is anchored on Section 18 (b) of the Civil Procedure Act which states:
18. Power of High Court to withdraw and transfer case instituted in subordinate court
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter —
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn .
32. Despite the extensive powers conferred upon the High Court to transfer cases, the power is not to be exercised whimsically or capriciously. It must be exercised judiciously and only on sound legal principles to serve the ends of justice. Some of the instances where a transfer may be ordered include; to avoid multiplicity of suits or conflicting decisions such as where the same subject matter is common in cases that are pending before different courts, where it can be demonstrated a party is facing extreme hardships such as long distances or expense, health, or work related schedule that genuinely impede his or right of access to justice but not mere inconveniences or personal preferences and where it can be demonstrated there is reasonable apprehension of bias that justice may not be done to a party before a particular court. The burden lies on the Party seeking the transfer to persuade the Court to make an order for transfer. The foregoing principles were summed up by the Court in S.P.K v A.W.K [2017] KEHC 4426 (KLR) which cited with approval the case of MARY MUENI MUTISYA ALIAS MARY MUTISYA vs. YUDICK MREMU & ANOTHER [2017 ] that had relied on DAVID KABUNGU vs. ZIKARENGA & 4 OTHERS KAMPALA HIGH COURT NO 36 OF 1995 where it was held thus:
1. That the burden is on the applicant to establish reasonable and sufficient ground for transfer of case.
2. The court should not interfere unless expense and difficulties of the trial would be so great to lead to injustice and work injustice.
3. The principle matters to be taken into consideration are a balance of convenience, question of expenses, and interest of justice and possibilities of undue hardship.
33. The fundamental question before the Court is not which Court has territorial jurisdiction to adjudicate the dispute. Rather, the core issue is which forum- between Ruiru Children Court and Nairobi, Milimani Children Court, would be more appropriate for the minor’s effective participation in the proceedings as and when required. In determining this question, the Court must have regard to the totality of relevant factors, with the paramount consideration being the best interests of the minor. The Court is required to weigh all the circumstances holistically so as to identify the forum where the minor best interests would be served as opposed to merely accommodating the convenience of either of the parties. This emphasis is rooted in Article 53 (2) of the Constitution which provides that ‘A child’s best interests are of paramount consideration in every matter concerning a child.’
34. This principle is further amplified by Section 8 (1) and (2) of the Children Act, 2022 which provides:
8. Best interests of the child
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration ;
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, 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; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
35. The Applicant urged this Court to to transfer this matter from Ruiru Law Courts to Nairobi Milimani Children Court on grounds that the Applicant resides with the minor in Lavington Nairobi since separating with the Respondent when the minor was only barely two and half months old, to wit, January, 2019 to date. Further, the minor attends school in Nairobi. Furthermore, it had proved difficult to get services of a Child Therapist at Ruiru Level 4 Hospital despite the Court order by Ruiru Court as these services are not available at the facility thereby prejudicing the interests of the child. In any case, the Applicant contended that the Respondent resides in Kitengela which fact, the Respondent did not controvert.
36. The Respondent in response argued that the order of transfer would serve to delay the progress of the case which has substantively proceeded before the Ruiru Children Court hence it would not serve the best interests of the minor. Further, the Respondent stated that he is open and flexible to avail himself in Nairobi where the services of a Child Therapist are available.
37. The Respondent did not controvert the fact that the Applicant lives with the minor in Lavington, Nairobi. Further, apart from residing in Nairobi, the minor also attends school in Nairobi. Furthermore, the services of a Child Therapist which the Ruiru Court had ordered be provided to the minor at Ruiru Level 4 Hospital were not available and the facility confirmed as much in a letter dated 9/2/2026 exhibited in this Court by the Respondent as ‘ SMK 7 .’
38. In addition, not even the Respondent resides in Ruiru, he resides in Kitengela, a fact he did not deny.
39. Given all these factors, why would the Respondent insist that the choice of the venue for the adjudication of the dispute be Ruiru Law Courts. Already, the Respondent is aware that some of the specialised services that the minor requires namely, Child Therapist services, cannot be found within Ruiru where Ruiru Law Courts is situate. These services are however readily available in Nairobi within the jurisdiction of Nairobi, Milimani Children Court where the minor not only lives but also schools.
40. In determining the appropriate forum for adjudicating over this matter, the best interests of the minor must remain the paramount consideration as mandated by Article 53 of the Constitution and Section 8 of the Children Act which I have already cited.
41. This Court has taken into account the totality of all the material factors, which include:
a) the fact that the child’s schooling is within Nairobi County
b) that once in a while the child may be required to attend Court in the course of proceedings
c) the fact that the child requires access to specialised Psychological Services which are not available within the jurisdiction covered by Ruiru Law Courts
d) the fact that the parent who has custody of the minor resides in Nairobi where the child is receiving daily support in terms of residence, education and his healthcare.
42. Having regard to the foregoing factors, this Court is of the considered view that the appropriate forum of the adjudication of this dispute is Nairobi Milimani Children’s Court. This conclusion is premised on the need to preserve the minor’s stability, as the proceedings will take place in an environment the minor is already accustomed. Uprooting the child from the familiar surroundings and introducing him to a different jurisdiction and setting is contrary to his best interests, particularly for the purpose of participating in the proceedings.
43. The argument by the Respondent that the matter has advanced substantially and the transfer will serve to delay the quick disposition of this matter is not convincing in view of Section 18 (2) of the Civil Procedure Act which provides:
“Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn .”
44. It is manifest that the transfer will not invalidate the existing orders and the Court to which the matter is transferred can still choose to proceed from where the matter has reached, subject only to specific directions on transfer. I thus do not think the apprehension by the Respondent that the matter will delay if it is transferred is well founded. It cannot therefore constitute a sufficient reason to reject a well-deserved transfer of the case that upholds, protects and promote the best interests of the minor.
45. I find the instant Application is meritorious, allow the same and issue the following orders:
a) Ruiru Chief Magistrate's Children Case No. E040 of 2024 is hereby transferred to the Chief Magistrate’s Children's Court at Milimani , Nairobi.
b) Each Party shall bear its own costs of this application.
46. Orders accordingly.
Dated, signed and delivered at Thika this 9th July, 2026.
...............................................
L. N. MUGAMBI
JUDGE
HCF MISC E007/2026 2 | Page
1. The Applicant filed a Notice of Motion Application dated 10 th February, 2026 supported by the affidavit of the Applicant, J.M.M sworn on even date seeking the following orders:
i) spent
ii) THAT the Honourable Court be pleased to exercise its supervisory jurisdiction call and or order for the transfer of Ruiru Chief Magistrate's Children Case No. E040 of 2024 to the Chief Magistrates Children's Court in Nairobi.
iii) THAT the Court do make such order or further orders as it may deem fair and just in the interest of justice and in the best interest of the child.
Applicant’s case
2. The Applicant deposed that the Respondent herein resides in Kitengela yet has filed Children Case No. E040 of 2024 at the Ruiru Law Courts where the Respondent is the plaintiff. The Applicant exhibited the plaint in the instant Application marked JMO1 .
3. The Applicant who is the defendant in the Children case deposed that since separating with the Respondent, she has been residing in Lavington, Nairobi with the minor who is now the subject of the children case at Ruiru Law Courts. The Applicant further discloses that the minor schools at Nairobi where the Applicant and her husband, without discrimination, have been providing for all his basic needs.
4. The Applicant deponed that on 23rd January 2026, the Magistrate’s Court at Ruiru issued an order directing the medical Superintendent, Ruiru Level 4 Hospital to assign the minor a Child Psychologist to be attending to the minor and the relevant parent on Saturdays per the Court order exhibited and marked JMM2.
5. The Applicant deposes that in compliance with the said order, she attempted to book an appointment with the Child Psychologist at the Ruiru Level 4 as directed by the Court. She was directed to the Counselling Department. However, she was informed that the hospital does not have a Child Psychologist counsellor. Furthermore, she was informed that even if such a specialist were available, it was not possible to provide the service on a Saturday as directed by the Court.
6. In addition, the Applicant deposes that Ruiru Law Courts lacks the requisite geographical jurisdiction to adjudicate the instant children's matter based on the following reasons:
a) The child resides with the Applicant in Lavington within Nairobi County .
b) The plaintiff (the Respondent in this Application) resides in Kitengela, Kajiado County.
c) Ruiru Level 4 Hospital, where the court referred the child for Child psychological Counselling does not offer the service.
d) the Applicant is apprehensive that the Respondent forum shopped the Ruiru court which is within Kiambu County.
e) Nairobi Milimani Children court is central and will serve the convenience required by the child, the respondent and the Applicant.
f) That the court without sufficient reasons dismissed a preliminary objection which raised the issue of geographical jurisdiction.
Respondent’s Case
7. In response, the Respondent filed a Replying Affidavit sworn by STEPHEN MULI KIMONDU on 26 th February, 2026.
8. The Respondent confirmed that he filed Ruiru Children Case Number E040 0f 2024 on 28 th May, 2024 at the Ruiru Magistrate’s Court which the Applicant responded to by filing a Preliminary Objection dated 20 th June, 2024 founded on Section 15 of the Civil Procedure Act ( annexure SMK 1 ).
9. After a hearing, the Preliminary Objection was dismissed on 16 th September, 2024.
10. Subsequently, the matters proceeded with the hearing of the Main Application which was also heard and a Ruling delivered on 27 th January, 2025.
11. That prior to the hearing of the main suit, the Applicant then filed an application in which she sought orders that the Respondent attends mandatory counselling by a Child Counsellor based in Nairobi and that the access rights to the child be suspended pending counselling and appropriate guidance and a comprehensive children report be filed as the first one contained factually incorrect information. The Court heard the matter and delivered its decision on 12 th September, 2025 in which it directed the child will continue visiting the Therapist based in Nairobi and would be introduced to the Respondent through the said Therapist ( Court Ruling annexure SKM 4 ).
12. The matter was then set for hearing but the Respondent complained to the Court the order of 12 th September was not complied with. Further that, the Therapist who had allegedly authored the report presented by the Applicant in Court had denied it and informed the Respondent’s Advocate that she had only attended to the minor once. It is for this reason that the Court ordered that the child be produced by the Applicant before a Therapist based at Ruiru Level 4 Hospital (per the Court order of 28 th January, 2026 annexure SMK 6).
13. Ruiru Level 4 Hospital however responded vide letter dated 9 th February, 2026 (annexure SMK 7) indicating that it does not have a designated Child Psychologist.
14. The Respondent deponed that the Applicant raised the issue of jurisdiction in the Preliminary Objection which the Court determined and dismissed in its Ruling of 16 th September, 2024, consequently, the Respondent depones that the matter is res-judicata and is thus incapable of being reopened.
15. The Respondent depones that transferring the matter would only occasion unnecessary delay as it has advanced substantively and Ruiru Court is almost concluding the same. The Respondent contends that Ruiru Law Courts is a duly constituted Magistrate’s Court with proper jurisdiction and competence to hear and determine the matter.
16. The Applicant affirms that He has always been open and flexible regarding the appointment of a Therapist hence there is no need to transfer the matter to Milimani Law Courts and thus, the transfer is intended to delay the matter and would not serve the best interest of the child, which according to the Respondent would best be served if the matter remains at Ruiru Law Courts for hearing and determination.
Applicant’s Submissions
17. The Applicant filed her written submissions dated 1 st April, 2026 through R.W. MBANYA & Company Advocates.
18. Counsel submitted that the Applicant and the Respondent are biological parents of the minor, L.W, born on 12 th November, 2018 but the parents have not been living together. Counsel submitted that in January, 2019, barely two months after the minor was born, the Applicant left the matrimonial due to irreconcilable differences. The Applicant now resides in Lavington with the minor while the Respondent lives in Kitengela.
19. The Applicant submitted that the Respondent filed Ruiru Children Case No. E40 of 2024. He granted supervised access on alternate Saturdays vide the orders of 24 th January, 2025 but the minor did not respond well to the said access arrangements as it caused the child to have adverse effects that included bed wetting, repeated crying, night mares and intense anxiety. The Applicant further submitted that the Respondent further failed to show up on several occasions leaving the child confused thereby necessitating the involvement of a Counsellor to protect the minor’s emotional well-being.
20. According to the Applicant, on 23/1/2026, the Court directed the Medical Superintendent at Ruiru Level 4 was directed to assign the minor a Child Psychologist who will be attending to the Child and relevant parent on Saturdays but a follow up by the Applicant confirmed that such professional services were not available at the facility.
21. Submitting on the issue of need to transfer this matter from Ruiru Law Courts to Nairobi Milimani Children Court, the Applicant reiterated that the Respondent resides in Kitengela, while the Applicant and the minor have since separation been residing in Lavington Nairobi. The minor, L.W attends school in Nairobi. She urged the Court to invoke and apply Section 18 of the Civil Procedure Act in the best interests of the minor as required by Section 8 (2) of the Children Act, 2022 arguing that
“the subject minor being in Nairobi, his rights and welfare would be best safeguarded, conserved and promoted by the exercise of judicial power by children’s court within the minor’s territorial jurisdiction, that is the Children’s Court in Nairobi.’
22. Counsel relied on the decision of JM vs AN JN [2017] eKLR where the Court held that the interests of the child are paramount and supersede the rights and interests of the parties in the suit.
23. Responding to the submission by the Respondent that the present Application is a delay tactic in view of the fact that the Preliminary Objection had been previously raised on the grounds of jurisdiction and dismissed, the Applicant submitted that this Application is not an Appeal or re-litigation , but an application brought on basis of the overriding consideration of the minor and practical realities that have since emerged in the course of the proceedings such as the orders issued by the Court directed at Ruiru Level 4 Hospital which could not be implemented for lack of a specialist to provide the service, which was/is prejudicial to the minor.
24. Counsel further cited the case of re HJO (minor) [2017] KEHC 956 (KLR) where the Court held the best interests of the child that could inform the best forum for the child included considering where the minor lives, where he goes to school and who has the physical custody of the child. Further reliance was placed on LNW v COO (Miscellaneous Application E258 of 2024] (2025) KEHC 624 (KLR).
Respondent’s Submissions
25. The Respondent filed submissions dated 13 th March, 2026 through Parsena Sornet & Company Advocates.
26. Counsel reiterated the jurisdiction of the Children Court as stipulated in Section 91 of the Children Act, 2022, the general principles that should guide proceedings under Section 95 of the Act and also, Article 53 (1) (c ) & (2) of the Constitution. On behalf of the Respondent, Counsel argued that in children matters, jurisdiction is not determined by the convenience of a litigant but the statutory mandate. In the instant case, the Applicant submitted that the Magistrate Court at Ruiru has jurisdiction to hear and determine the matter. To buttress the Respondent’s submissions; Counsel relied On the re Estate of RNM (minor) (2020) eKLR the Court held that the Magistrate’s Court Act Cap 10 Laws of Kenya Section 3 (2) gives the Court countrywide jurisdiction notwithstanding where the defendant resides or where the cause of action arose and in the event of conflict with the Civil Procedure Act, the Magistrate’s Court Act would be applicable legislation giving the Children Court country wide jurisdiction.
27. Further cited was the case of GKK V ANK & Anor (2021) where the Court held, citing the Ugandan Case of David Kabungu vs Zikarenga HCCC No. 36 of 1995 that Section 18 of the Civil Procedure Act gives the general power of transfer and the power may be exercised even suo muto but as a general rule, the Court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice.
28. On whether the transfer serves the best interest of the child, the Respondent contended that the Court ought to consider that the has been actively been managed by Ruiru Children Court and the issue of Therapy sessions has been addressed through various court orders hence transferring the matter would cause delay and disrupt the sessions ordered by Ruiru Children’s Court. That transferring the matter could stall the implementation of the orders which will negate the child’s best interests.
29. Other authorities relied upon by the Applicant include FSL v FNK, Civil Appeal E060 of 2021 [2022] eKLR and BOO v JAO [2021] KEHC 4581 eKLR.
Analysis and Determination
30. The core issue for determination in this Application is whether this Court should transfer Ruiru Chief Magistrate's Children Case No. E040 of 2024 to the Nairobi Chief Magistrates Children's Court in Nairobi.
31. The instant Application is anchored on Section 18 (b) of the Civil Procedure Act which states:
18. Power of High Court to withdraw and transfer case instituted in subordinate court
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter —
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn .
32. Despite the extensive powers conferred upon the High Court to transfer cases, the power is not to be exercised whimsically or capriciously. It must be exercised judiciously and only on sound legal principles to serve the ends of justice. Some of the instances where a transfer may be ordered include; to avoid multiplicity of suits or conflicting decisions such as where the same subject matter is common in cases that are pending before different courts, where it can be demonstrated a party is facing extreme hardships such as long distances or expense, health, or work related schedule that genuinely impede his or right of access to justice but not mere inconveniences or personal preferences and where it can be demonstrated there is reasonable apprehension of bias that justice may not be done to a party before a particular court. The burden lies on the Party seeking the transfer to persuade the Court to make an order for transfer. The foregoing principles were summed up by the Court in S.P.K v A.W.K [2017] KEHC 4426 (KLR) which cited with approval the case of MARY MUENI MUTISYA ALIAS MARY MUTISYA vs. YUDICK MREMU & ANOTHER [2017 ] that had relied on DAVID KABUNGU vs. ZIKARENGA & 4 OTHERS KAMPALA HIGH COURT NO 36 OF 1995 where it was held thus:
1. That the burden is on the applicant to establish reasonable and sufficient ground for transfer of case.
2. The court should not interfere unless expense and difficulties of the trial would be so great to lead to injustice and work injustice.
3. The principle matters to be taken into consideration are a balance of convenience, question of expenses, and interest of justice and possibilities of undue hardship.
33. The fundamental question before the Court is not which Court has territorial jurisdiction to adjudicate the dispute. Rather, the core issue is which forum- between Ruiru Children Court and Nairobi, Milimani Children Court, would be more appropriate for the minor’s effective participation in the proceedings as and when required. In determining this question, the Court must have regard to the totality of relevant factors, with the paramount consideration being the best interests of the minor. The Court is required to weigh all the circumstances holistically so as to identify the forum where the minor best interests would be served as opposed to merely accommodating the convenience of either of the parties. This emphasis is rooted in Article 53 (2) of the Constitution which provides that ‘A child’s best interests are of paramount consideration in every matter concerning a child.’
34. This principle is further amplified by Section 8 (1) and (2) of the Children Act, 2022 which provides:
8. Best interests of the child
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration ;
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, 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; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
35. The Applicant urged this Court to to transfer this matter from Ruiru Law Courts to Nairobi Milimani Children Court on grounds that the Applicant resides with the minor in Lavington Nairobi since separating with the Respondent when the minor was only barely two and half months old, to wit, January, 2019 to date. Further, the minor attends school in Nairobi. Furthermore, it had proved difficult to get services of a Child Therapist at Ruiru Level 4 Hospital despite the Court order by Ruiru Court as these services are not available at the facility thereby prejudicing the interests of the child. In any case, the Applicant contended that the Respondent resides in Kitengela which fact, the Respondent did not controvert.
36. The Respondent in response argued that the order of transfer would serve to delay the progress of the case which has substantively proceeded before the Ruiru Children Court hence it would not serve the best interests of the minor. Further, the Respondent stated that he is open and flexible to avail himself in Nairobi where the services of a Child Therapist are available.
37. The Respondent did not controvert the fact that the Applicant lives with the minor in Lavington, Nairobi. Further, apart from residing in Nairobi, the minor also attends school in Nairobi. Furthermore, the services of a Child Therapist which the Ruiru Court had ordered be provided to the minor at Ruiru Level 4 Hospital were not available and the facility confirmed as much in a letter dated 9/2/2026 exhibited in this Court by the Respondent as ‘ SMK 7 .’
38. In addition, not even the Respondent resides in Ruiru, he resides in Kitengela, a fact he did not deny.
39. Given all these factors, why would the Respondent insist that the choice of the venue for the adjudication of the dispute be Ruiru Law Courts. Already, the Respondent is aware that some of the specialised services that the minor requires namely, Child Therapist services, cannot be found within Ruiru where Ruiru Law Courts is situate. These services are however readily available in Nairobi within the jurisdiction of Nairobi, Milimani Children Court where the minor not only lives but also schools.
40. In determining the appropriate forum for adjudicating over this matter, the best interests of the minor must remain the paramount consideration as mandated by Article 53 of the Constitution and Section 8 of the Children Act which I have already cited.
41. This Court has taken into account the totality of all the material factors, which include:
a) the fact that the child’s schooling is within Nairobi County
b) that once in a while the child may be required to attend Court in the course of proceedings
c) the fact that the child requires access to specialised Psychological Services which are not available within the jurisdiction covered by Ruiru Law Courts
d) the fact that the parent who has custody of the minor resides in Nairobi where the child is receiving daily support in terms of residence, education and his healthcare.
42. Having regard to the foregoing factors, this Court is of the considered view that the appropriate forum of the adjudication of this dispute is Nairobi Milimani Children’s Court. This conclusion is premised on the need to preserve the minor’s stability, as the proceedings will take place in an environment the minor is already accustomed. Uprooting the child from the familiar surroundings and introducing him to a different jurisdiction and setting is contrary to his best interests, particularly for the purpose of participating in the proceedings.
43. The argument by the Respondent that the matter has advanced substantially and the transfer will serve to delay the quick disposition of this matter is not convincing in view of Section 18 (2) of the Civil Procedure Act which provides:
“Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn .”
44. It is manifest that the transfer will not invalidate the existing orders and the Court to which the matter is transferred can still choose to proceed from where the matter has reached, subject only to specific directions on transfer. I thus do not think the apprehension by the Respondent that the matter will delay if it is transferred is well founded. It cannot therefore constitute a sufficient reason to reject a well-deserved transfer of the case that upholds, protects and promote the best interests of the minor.
45. I find the instant Application is meritorious, allow the same and issue the following orders:
a) Ruiru Chief Magistrate's Children Case No. E040 of 2024 is hereby transferred to the Chief Magistrate’s Children's Court at Milimani , Nairobi.
b) Each Party shall bear its own costs of this application.
46. Orders accordingly.
Dated, signed and delivered at Thika this 9th July, 2026.
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L. N. MUGAMBI
JUDGE
HCF MISC E007/2026 2 | Page