1. The Applicant and the Respondent are the parents of CM (aged 9) CW(aged 6) and Calvin M (aged 3). The 3 children are presently enrolled in and attend Light Academy, Mombasa.
2. It is a common ground that the Applicant and the Respondent started living together in 2013 and that their relationship broke down in December 2022 whereupon the Respondent left their shared home together her daughter from a previous relationship.
3. Vide a Plaint dated 25th May 2024 the Respondent, as a Plaintiff, sought the following orders against the Applicant, sued as the Defendant:-
(a) A full custody (both physical and actual) order to be made in favour of the Plaintiff;
(b) An order directing the Defendant to surrender the birth certificates/birth notifications of the minors and all other documents relating to the minors including but not limited to medical records and immunization cards;
(c) An order directing the Defendant to cater for the school fees, and all school related expenses, medical expenses and clothing of the minors;
(d) An order directing the Defendant to be making quarterly financial provisions per year to the minors; and
(e) Any other orders/directions the Court may deem fit to give in the best interests of the minors/children.
4. The Applicant avers that he was unaware of the above cause until on or about the 26th March 2024 when he received a text message from the Judiciary Case Management System in respect to MCCHCC E797/2023; HT VS KNCA advising him that directions had been given in the said matter.
5. It is then that the Applicant filed this Miscellaneous Cause vide which he seeks the following orders:-
1. Spent;
2. Spent;
3. That Nairobi Children’s Case No E797 of 2023 be transferred to the Children’s Court at Tononoka, Mombasa for appropriate directions as to hearing and disposal; and
4. That the costs of this application be provided for.
6. The Applicant contends that he has had primary custody of the subject minors since November 2022. He contests the decision of the Respondent to file the children’s cause in Nairobi “despite the fact that Mombasa is the county in which the minors were born and where they have been raised all their lives”. He further contends that the witnesses are likely to be called to give evidence in Mombasa. In the Applicant’s view, the prosecution of the children’s case in Nairobi would not be the best use of judicial time and resources and will place an unnecessary cost burden on him.
7. The Supporting Affidavit raises the same arguments as those stated in the grounds I have referred to above. Therefore, I will not rehash them, save that the Applicant decried how the suit was filed and prosecuted, arguing that it was done to steal a match from him. I was urged to exercise my jurisdiction and cause Nairobi Children case No E797 of 2023 between the parties hereto to be transferred to Tononoka Children’s Court at Mombasa for hearing and determination.
8. The Respondent filed a Replying Affidavit sworn on 11th April 2024. Vide the said affidavit, Ms Thuku stated that the application filed herein was filed with the sole intention of delaying the children’s case that was previously listed for hearing on 15th March 2024. The Respondent argued that she filed the suit in Nairobi Children's Court seeking to be granted access to the children, something she stated the Applicant had denied her and also joint custody of the subject children.
9. The Respondent deposed that the Children's Court is a Court sui generis, not strictly bound by the provisions of sections 11 to 18 of the Civil Procedure Act. In her opinion, the Nairobi Children's Court was the most appropriate Court to hear the children's cause as it has more Magistrates (8) compared to Tononoka (2), and thus, the case would be heard faster. Secondly, the orders she sought wouldn’t require adduction of evidence by witness as it was only about custody. Thirdly most hearings and Court attendances are virtual. Fourthly, the interest of justice called for the minors to be reunited with their elder 13-year-old sibling who resides with the Respondent in Nairobi. Lastly, she argued that the Applicant had not demonstrated any prejudice he would suffer if the matter were heard in Nairobi.
10. Miss Thuku stated that the Court should be bound by sections 8 and 91(2) of the Children Act and, in particular, give paramountcy to the best interest of the minors involved in the instant matter. She averred that the effect of this application was to delay the hearing of the pending children's case contrary to section 95 of the Children Act.
11. The Respondent argued that section 11 of the Civil Procedure Act gave her the latitude to file the suit anywhere if she believed there was a valid point of law and that the Applicant hadn’t given a cogent reason for seeking to transfer the case to Tononoka Children Court.
12. The Applicant filed a Supplementary Affidavit sworn on 14th April 2024, in which he denied the contents of the Replying Affidavit. In particular, he averred that the Respondent had given no cogent reason as to why the children's cause was filed in Nairobi and not at Tononoka Children's Court. He denied that a Plaintiff could elect where to file the suit under section 15 of the Civil Procedure Act. He stated that a hearing in Nairobi would breach his rights under Articles 47 and 50 of the Constitution of Kenya, 2010.
13. The matter proceeded by way of Written Submissions.
14. The Applicant identified 4 issues as coming up for determination to wit:-
1. Whether there was a cogent reason for the suit to be filed in Nairobi;
2. Whether there was a provision in the Children Act that specifically ousted the applicability of Section 15 of the Civil Procedure Act in children matters?
3. Whether an interpretation of law that sanctions an abuse of the Court process and allows the blatant disregard of statutory provisions could be said to be fair and just and within the meaning of Article 47 and 50(1) of the Constitution?
4. What orders should issue?
15. On the first issue, the Applicant submitted that the cause of action arose in Mombasa. The Defendant in the Nairobi cause and the children all reside in Mombasa. Relying on the case of Bud & Bloom Ltd versus Jonathan Balongo Okumu [2021]eKLR I was urged to allow the application.
16. On the second issue, the Applicant submitted that the Court designated as the Children's Court under section 90 of the Children Act exercises a Civil Jurisdiction and that going by the definition of “Court” in section 2 of the Civil Procedure Act, the Children Court was bound by the Civil Procedure Act. It was urged that section 15 of the Civil Procedure Act wasn’t ousted by any provision of the Children Act.
17. The Applicant submitted that allowing the Respondent to file the suit anywhere she deemed fit would infringe on the Applicant’s right to a fair trial under Article 50(4) of the Constitution. It was urged that a hearing in Nairobi would be unreasonable. Therefore, it was urged that I allow the application and not be persuaded by the authorities relied on by the Respondent in her submissions.
18. The Respondent’s submissions are dated 1st May 2024. In the said submissions, she urged that she filed the cause in Milimani Law Courts after her attempt to access the children was denied. She stated that after filing suit, she suffered a mental breakdown and could not proceed with the case until after she recovered. She argued that as she filed the case through the CTS system, the Applicant was automatically alerted and was fully aware of the suit.
19. Upon recovery from her medical challenges, she commenced the prosecution of the matter.
20. Ms. Thuku identified 2 issues as coming up for determination:-
1. Whether this Court should be strictly guided by the Civil Procedure Act in children matters? and
2. Whether the Applicant had provided justification for the transfer of the suit from Milimani Children Court to Tononoka Law Court?
21. The Respondent urged that the jurisdiction of the Children's Court was sub generis. Reliance was placed in the decision of Emukule, J (as he then was) in Republic vs Senior Resident Magistrate exparte HL [2016]eKLR. She urged that I disregard the cases relied on by the Respondent as they were decisions made by the High Court in exercising its “normal jurisdiction” in civil cases.
22. Regarding the choice of location to file the children's case, the Respondent argued that she was a resident of Nairobi. Having filed the suit in Nairobi, it was up to the Applicant to justify his application to have the suit transferred to Tononoka, and the duly could not be shifted to her. In her view, the Applicant had not justified his application. She submitted that hearings nowadays are virtual. She said there would never be a situation where the children would have to be interviewed about which parent they should stay with.
23. The Respondent referred to the number of Magistrates in Nairobi Children's Court and submitted that it could hear the case faster than Tononoka, which has only two magistrates.
24. I was referred to the cases of SMM vs AM [2020]eKLR and MNK vs AOK [2022]eKLR. It was urged that no cogent reason had been given for transferring the cases from Nairobi to Mombasa.
25. Lastly, the Respondent submitted that she lives in Nairobi, and the Nairobi Court has jurisdiction to hear and determine the matter. I was, therefore, urged to dismiss the application as no cogent reason had been preferred to justify the transfer of the cause to Tononoka.
26. I have considered the pleadings of the parties and their submissions. From the Plaint filed in Nairobi Children’s Court, it is clear that the main contestation between the Applicant and the Respondent is over the custody of the 3 children. It is common ground that the children are all of tender age, being nine years old and below and that they have solely lived with the Applicant in Mombasa since the Respondent left.
27. It is trite law that the Court when considering a matter regarding children, must consider the best interests of the children as a paramount consideration. This is what the parties hereto have referred to as the “paramountcy” principle. This principle is set out in Article 53(2) of the Constitution and Section 8(1) and (2) of the Children Act, 2022. This principle, in my view, also governs the parties' conduct. Thus, while filing a suit, the choice of the court station must be one that promotes the best interest of the subject minors and does not hinder their access to justice.
28. As the suit in Nairobi is primarily about custody an enquiry must be made as to what procedural law governs such cases. Section 91(1)(a) of the Children Act, 2022 provides that:-
“(1) Without prejudice to the generality of section 90(1), the children’s Court shall have jurisdiction to—
(a) conduct civil proceedings on matters set out under Parts III, VII, VIII, IX, X, XI, XIII, XIV and XV of this Act…”(emphasis added).
29. The Children's Court, when exercising civil jurisdiction in matters such as custody and maintenance, is bound by the Civil Procedure Act. Thus, the choice of the court must be done per the provisions of the said Act, with the rider that the Court so chosen must promote, not impede, the access to justice by the concerned children.
30. The applicable provision of the Civil Procedure Act is Section 15, which provides as follows:-
“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
(b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.”
31. Although I agree that the Children's Court is a court sui generis, I am not persuaded that that very fact justifies a departure from what the Civil Procedure Act prescribes in black and white. In my view, given the provision of the Civil Procedure Act the Respondent had the burden of justifying her choice of the Court station and of showing that her choice was in the best interest of the children. She did not discharge the said burden.
32. I note that as the suit is primarily about custody of children of tender age, the Children's Court will necessarily have to consider the suitability of each parent. That will require the production of evidence. In this matter, it is likely that evidence from a wide selection of people who knew the couple may be necessary. Hearing the cause in Nairobi will, therefore, be very costly. Although the cost element would be partly assuaged by online proceedings, expenses would nevertheless be required.
33. Further Section 95(2)(a) of the Children Act requires the Court to consider the ascertainable wishes of the children, having regard to their ages, when making decisions about them.
34. I agree with the holding of the Court in Bud & Bloom Ltd vs Jonathan Balongo Okumu [2021]eKLR on the choice of the Court. Although the said case was civil in nature it set out the correct test.
35. The Respondent stated, and this Court agrees, that Nairobi Children's Court has more judicial officers than Tononoka to support her argument that the former court was more suitable. Unfortunately, that statistic tells us half the story; although Nairobi has more Magistrates, it has a higher cause load per magistrate than Tononoka. With a higher caseload, it is more likely than not that the matter would take much longer to prosecute in Nairobi than it would if the same was before the Tononoka Children's Court. I do not see how having a case delay in Court would be in the best interest of the children concerned.
36. I have found merit in the application. I order that Nairobi Children Case No E797 of 2023; Hellen Thuku versus Kelvin Njoroge Kamami be transferred forthwith to Tononoka Children Court for hearing and determination.
37. This being a matter about children I make no orders at to costs.
38. Orders accordingly.
Dated and signed this 25th day of June 2024 at Mombasa. Delivered virtually via Microsoft TEAMS.
2. It is a common ground that the Applicant and the Respondent started living together in 2013 and that their relationship broke down in December 2022 whereupon the Respondent left their shared home together her daughter from a previous relationship.
3. Vide a Plaint dated 25th May 2024 the Respondent, as a Plaintiff, sought the following orders against the Applicant, sued as the Defendant:-
(a) A full custody (both physical and actual) order to be made in favour of the Plaintiff;
(b) An order directing the Defendant to surrender the birth certificates/birth notifications of the minors and all other documents relating to the minors including but not limited to medical records and immunization cards;
(c) An order directing the Defendant to cater for the school fees, and all school related expenses, medical expenses and clothing of the minors;
(d) An order directing the Defendant to be making quarterly financial provisions per year to the minors; and
(e) Any other orders/directions the Court may deem fit to give in the best interests of the minors/children.
4. The Applicant avers that he was unaware of the above cause until on or about the 26th March 2024 when he received a text message from the Judiciary Case Management System in respect to MCCHCC E797/2023; HT VS KNCA advising him that directions had been given in the said matter.
5. It is then that the Applicant filed this Miscellaneous Cause vide which he seeks the following orders:-
1. Spent;
2. Spent;
3. That Nairobi Children’s Case No E797 of 2023 be transferred to the Children’s Court at Tononoka, Mombasa for appropriate directions as to hearing and disposal; and
4. That the costs of this application be provided for.
6. The Applicant contends that he has had primary custody of the subject minors since November 2022. He contests the decision of the Respondent to file the children’s cause in Nairobi “despite the fact that Mombasa is the county in which the minors were born and where they have been raised all their lives”. He further contends that the witnesses are likely to be called to give evidence in Mombasa. In the Applicant’s view, the prosecution of the children’s case in Nairobi would not be the best use of judicial time and resources and will place an unnecessary cost burden on him.
7. The Supporting Affidavit raises the same arguments as those stated in the grounds I have referred to above. Therefore, I will not rehash them, save that the Applicant decried how the suit was filed and prosecuted, arguing that it was done to steal a match from him. I was urged to exercise my jurisdiction and cause Nairobi Children case No E797 of 2023 between the parties hereto to be transferred to Tononoka Children’s Court at Mombasa for hearing and determination.
8. The Respondent filed a Replying Affidavit sworn on 11th April 2024. Vide the said affidavit, Ms Thuku stated that the application filed herein was filed with the sole intention of delaying the children’s case that was previously listed for hearing on 15th March 2024. The Respondent argued that she filed the suit in Nairobi Children's Court seeking to be granted access to the children, something she stated the Applicant had denied her and also joint custody of the subject children.
9. The Respondent deposed that the Children's Court is a Court sui generis, not strictly bound by the provisions of sections 11 to 18 of the Civil Procedure Act. In her opinion, the Nairobi Children's Court was the most appropriate Court to hear the children's cause as it has more Magistrates (8) compared to Tononoka (2), and thus, the case would be heard faster. Secondly, the orders she sought wouldn’t require adduction of evidence by witness as it was only about custody. Thirdly most hearings and Court attendances are virtual. Fourthly, the interest of justice called for the minors to be reunited with their elder 13-year-old sibling who resides with the Respondent in Nairobi. Lastly, she argued that the Applicant had not demonstrated any prejudice he would suffer if the matter were heard in Nairobi.
10. Miss Thuku stated that the Court should be bound by sections 8 and 91(2) of the Children Act and, in particular, give paramountcy to the best interest of the minors involved in the instant matter. She averred that the effect of this application was to delay the hearing of the pending children's case contrary to section 95 of the Children Act.
11. The Respondent argued that section 11 of the Civil Procedure Act gave her the latitude to file the suit anywhere if she believed there was a valid point of law and that the Applicant hadn’t given a cogent reason for seeking to transfer the case to Tononoka Children Court.
12. The Applicant filed a Supplementary Affidavit sworn on 14th April 2024, in which he denied the contents of the Replying Affidavit. In particular, he averred that the Respondent had given no cogent reason as to why the children's cause was filed in Nairobi and not at Tononoka Children's Court. He denied that a Plaintiff could elect where to file the suit under section 15 of the Civil Procedure Act. He stated that a hearing in Nairobi would breach his rights under Articles 47 and 50 of the Constitution of Kenya, 2010.
13. The matter proceeded by way of Written Submissions.
14. The Applicant identified 4 issues as coming up for determination to wit:-
1. Whether there was a cogent reason for the suit to be filed in Nairobi;
2. Whether there was a provision in the Children Act that specifically ousted the applicability of Section 15 of the Civil Procedure Act in children matters?
3. Whether an interpretation of law that sanctions an abuse of the Court process and allows the blatant disregard of statutory provisions could be said to be fair and just and within the meaning of Article 47 and 50(1) of the Constitution?
4. What orders should issue?
15. On the first issue, the Applicant submitted that the cause of action arose in Mombasa. The Defendant in the Nairobi cause and the children all reside in Mombasa. Relying on the case of Bud & Bloom Ltd versus Jonathan Balongo Okumu [2021]eKLR I was urged to allow the application.
16. On the second issue, the Applicant submitted that the Court designated as the Children's Court under section 90 of the Children Act exercises a Civil Jurisdiction and that going by the definition of “Court” in section 2 of the Civil Procedure Act, the Children Court was bound by the Civil Procedure Act. It was urged that section 15 of the Civil Procedure Act wasn’t ousted by any provision of the Children Act.
17. The Applicant submitted that allowing the Respondent to file the suit anywhere she deemed fit would infringe on the Applicant’s right to a fair trial under Article 50(4) of the Constitution. It was urged that a hearing in Nairobi would be unreasonable. Therefore, it was urged that I allow the application and not be persuaded by the authorities relied on by the Respondent in her submissions.
18. The Respondent’s submissions are dated 1st May 2024. In the said submissions, she urged that she filed the cause in Milimani Law Courts after her attempt to access the children was denied. She stated that after filing suit, she suffered a mental breakdown and could not proceed with the case until after she recovered. She argued that as she filed the case through the CTS system, the Applicant was automatically alerted and was fully aware of the suit.
19. Upon recovery from her medical challenges, she commenced the prosecution of the matter.
20. Ms. Thuku identified 2 issues as coming up for determination:-
1. Whether this Court should be strictly guided by the Civil Procedure Act in children matters? and
2. Whether the Applicant had provided justification for the transfer of the suit from Milimani Children Court to Tononoka Law Court?
21. The Respondent urged that the jurisdiction of the Children's Court was sub generis. Reliance was placed in the decision of Emukule, J (as he then was) in Republic vs Senior Resident Magistrate exparte HL [2016]eKLR. She urged that I disregard the cases relied on by the Respondent as they were decisions made by the High Court in exercising its “normal jurisdiction” in civil cases.
22. Regarding the choice of location to file the children's case, the Respondent argued that she was a resident of Nairobi. Having filed the suit in Nairobi, it was up to the Applicant to justify his application to have the suit transferred to Tononoka, and the duly could not be shifted to her. In her view, the Applicant had not justified his application. She submitted that hearings nowadays are virtual. She said there would never be a situation where the children would have to be interviewed about which parent they should stay with.
23. The Respondent referred to the number of Magistrates in Nairobi Children's Court and submitted that it could hear the case faster than Tononoka, which has only two magistrates.
24. I was referred to the cases of SMM vs AM [2020]eKLR and MNK vs AOK [2022]eKLR. It was urged that no cogent reason had been given for transferring the cases from Nairobi to Mombasa.
25. Lastly, the Respondent submitted that she lives in Nairobi, and the Nairobi Court has jurisdiction to hear and determine the matter. I was, therefore, urged to dismiss the application as no cogent reason had been preferred to justify the transfer of the cause to Tononoka.
26. I have considered the pleadings of the parties and their submissions. From the Plaint filed in Nairobi Children’s Court, it is clear that the main contestation between the Applicant and the Respondent is over the custody of the 3 children. It is common ground that the children are all of tender age, being nine years old and below and that they have solely lived with the Applicant in Mombasa since the Respondent left.
27. It is trite law that the Court when considering a matter regarding children, must consider the best interests of the children as a paramount consideration. This is what the parties hereto have referred to as the “paramountcy” principle. This principle is set out in Article 53(2) of the Constitution and Section 8(1) and (2) of the Children Act, 2022. This principle, in my view, also governs the parties' conduct. Thus, while filing a suit, the choice of the court station must be one that promotes the best interest of the subject minors and does not hinder their access to justice.
28. As the suit in Nairobi is primarily about custody an enquiry must be made as to what procedural law governs such cases. Section 91(1)(a) of the Children Act, 2022 provides that:-
“(1) Without prejudice to the generality of section 90(1), the children’s Court shall have jurisdiction to—
(a) conduct civil proceedings on matters set out under Parts III, VII, VIII, IX, X, XI, XIII, XIV and XV of this Act…”(emphasis added).
29. The Children's Court, when exercising civil jurisdiction in matters such as custody and maintenance, is bound by the Civil Procedure Act. Thus, the choice of the court must be done per the provisions of the said Act, with the rider that the Court so chosen must promote, not impede, the access to justice by the concerned children.
30. The applicable provision of the Civil Procedure Act is Section 15, which provides as follows:-
“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
(b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.”
31. Although I agree that the Children's Court is a court sui generis, I am not persuaded that that very fact justifies a departure from what the Civil Procedure Act prescribes in black and white. In my view, given the provision of the Civil Procedure Act the Respondent had the burden of justifying her choice of the Court station and of showing that her choice was in the best interest of the children. She did not discharge the said burden.
32. I note that as the suit is primarily about custody of children of tender age, the Children's Court will necessarily have to consider the suitability of each parent. That will require the production of evidence. In this matter, it is likely that evidence from a wide selection of people who knew the couple may be necessary. Hearing the cause in Nairobi will, therefore, be very costly. Although the cost element would be partly assuaged by online proceedings, expenses would nevertheless be required.
33. Further Section 95(2)(a) of the Children Act requires the Court to consider the ascertainable wishes of the children, having regard to their ages, when making decisions about them.
34. I agree with the holding of the Court in Bud & Bloom Ltd vs Jonathan Balongo Okumu [2021]eKLR on the choice of the Court. Although the said case was civil in nature it set out the correct test.
35. The Respondent stated, and this Court agrees, that Nairobi Children's Court has more judicial officers than Tononoka to support her argument that the former court was more suitable. Unfortunately, that statistic tells us half the story; although Nairobi has more Magistrates, it has a higher cause load per magistrate than Tononoka. With a higher caseload, it is more likely than not that the matter would take much longer to prosecute in Nairobi than it would if the same was before the Tononoka Children's Court. I do not see how having a case delay in Court would be in the best interest of the children concerned.
36. I have found merit in the application. I order that Nairobi Children Case No E797 of 2023; Hellen Thuku versus Kelvin Njoroge Kamami be transferred forthwith to Tononoka Children Court for hearing and determination.
37. This being a matter about children I make no orders at to costs.
38. Orders accordingly.
Dated and signed this 25th day of June 2024 at Mombasa. Delivered virtually via Microsoft TEAMS.