RULING
The application
1. The applicant herein MNM through her application dated 5th February 2026 prays for an order that Kwale Children’s Case No. E010 of 2025 between herself MNM and the respondent herein PMM be transferred to Nairobi Milimani Law Courts for hearing and determination and costs of the application be provided for.
2. The grounds in support of the application are set out on the face thereof and expounded in the applicant’s affidavit sworn on 6th February 2026. I will consider the grounds in the analysis below because they are largely not disputed by the respondent in his reply.
3. The respondent has opposed the application through his replying affidavit, sworn on 17th February 2026. The replying affidavit largely sets out the proceedings before the Children’s Court. What I consider arising from the affidavit, to be the main reason for objection to the transfer of the case is that the case at Kwale Children’s Court is at an advanced stage of the hearing and having it transferred at this stage will occasion a delay in the determination thereof.
Analysis
4. It is common ground as ascertained from the affidavits of the parties that the applicant is the mother and the respondent is the father of the two minors N.M. and M.M. Both parties have conceded in their respective affidavits that the applicant was previously resident and working in Kwale County where she was running her own business. The two minors were enrolled and schooling at FOT school within Kwale County.
5. The respondent deposes that through interim orders of Kwale Children court MCCHC E010/2025, the applicant has the interim custody of the minors, while he was granted access on each alternate weekend of the month during the open school period, pending the hearing and determination of the matter. That the court further directed the applicant to take care of minors’ rent and subsistence expenses while he takes care of medical, school and school related expenses. He deposes that in spite of that order, the applicant has denied him access to the minors since the start of year 2026 in spite of him satisfactorily performing his part of the court order.
6. The applicant deposes that she has now relocated to Nairobi, where she has secured a source of income to meet the minors’ basic needs. She has enrolled the minors, and they are now attending school at HGS, Mukuru.
7. The respondent deposes that he was informed of the applicant’s relocation from Kwale to Nairobi through her advocates. He deposes further that the respondent had unilaterally enrolled the minors at a different school without consultation with him or leave of the court and was seeking his commitment to pay the school tuition fees, school entry fees and other school-related costs.
8. The respondent deposes that the case before the Children’s Court at Kwale MCCHC E010/2025 is part-heard, with the applicant having closed her case, and the matter is at the defense hearing stage. The defence has already called one of its four witnesses. Further, a voir dire examination of the minors was conducted in the physical courtroom and their responses recorded by the magistrate. The court has recorded their testimony and demeanor, and thus, the minors may not be required to testify again. He deposes that the transfer of the matter may cause unnecessary delay and possible reopening of issues already settled. Further, transferring a part-heard matter when evidence has already been taken may cause prejudice and necessitate a de-novo hearing, contrary to the interests of justice.
9. Further, the children’s court at Milimani, Nairobi, is known to have a substantially heavier case load than the Children's court at Kwale, and transferring a part -heard matter there is likely to delay its expeditious conclusion, contrary to the constitutional imperative that children’s matters be determined without undue delay.
10. Further, that modern court infrastructure allows the matter to proceed virtually, he is willing to participate in online proceedings should logistical inconvenience arise.
11. The applicant’s take on the issue is that the pending matter is yet to be determined to its logical conclusion, and the same will proceed from the point it has reached.
12. She deposes that owing to her relocation, current residence and schooling of the minors, it is in their best interests that the matter be heard and determined at the Children’s Court in Nairobi.
13. The applicant deposes further that transfer of the matter will not cause any prejudice to the respondent.
14. Learned counsels for the parties agreed that the application could be determined on the affidavits filed by the parties.
Determination
15. I have considered the grounds in support of the application and the response thereto. The single issue for determination is whether the transfer of the matter pending before the Children’s Court at Kwale would be in the best interests of the minors.
16. The jurisdiction of the High Court to transfer suits from one Court to another is provided under Section 18 (1) of the Civil Procedure Act (Cap. 21) Laws of Kenya, which states as follows-
“(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.”
17. As stated above, the overriding consideration is what would be in the best interests of the minors in the determination of this application. According to the applicant, the current residence and schooling of the minors would require that the matter be heard and determined at the Nairobi Children’s Court and the transfer will not occasion any prejudice to the respondent.
18. The respondent does not dispute the above depositions. From his replying affidavit, it is apparent that he is also based in Nairobi and his initial wish was that the case be heard and determined at the Nairobi Milimani Children’s Court. He had filed at Nairobi, Milimani Children's Court Case No. MCCHCC E763 of 2025, but the applicant opposed the application, and the court decided that the case be filed in the Kwale Magistrate’s Court. The applicant went ahead of him and filed the case now pending before the Kwale Magistrate's Court, No. MCCHC E010/2025, which she again wants transferred back to Nairobi.
19. I do not think there is much to grouse over that issue, seeing that the reasons for the filing of the case at Kwale were evident. Indeed, the applicant was then resident in Kwale with the minors, and the case had not taken off at all. The question is, will the applicant avail herself of the same reasons in the present application? I do not think so.
20. I am persuaded to follow the holding of the High Court in a similar application to this one in SKM v SNI (Suing as the Mother and Next Friend) [2023] KEHC 19932 (KLR), where the court said:
“Ultimately, the interests to be protected as provided under the Constitution and the Children’s Act, are the best interests of the children, not the interests of the parties herein, and the applicant has not disclosed any of the children’s interests that will be adversely affected and in what way, in the Nairobi Court, which would be protected specifically in the Makueni Magistrate’s Court.”
21. Similarly, in this case, other than mentioning without providing any convincing reason that due to the current residence and schooling of the minors, their best interests will be served by transferring the case to Milimani, Nairobi, the applicant has not offered any convincing reason to back up that assertion.
22. On his part, I think the respondent has pitched a strong case against the transfer of the matter from the Kwale Magistrate’s Court to the Milimani Children’s Court, even as it is evident that both parties and the minors are back to Nairobi, where the minors are also schooling.
23. The reasons are several, the first among them being that the case is now substantially heard with the plaintiff’s case closed and the defendant’s case partly heard. Considering that this has been possible in less than twelve months, it is a clear demonstration that the matter has proceeded expeditiously. The applicant has not challenged the respondent’s assertion that if the case were still in Nairobi, it would take longer to reach that stage.
24. Secondly, as stated by the respondent, once the minors' views have been taken, the presiding magistrate is in a better position to evaluate their demeanor. If this has to be done again by a different magistrate, it will obviously not be in the minors' best interests to be subjected to another court appearance and examination over the same issues. It cannot be in the minors' best interests to attend court and be examined on issues they barely understand, which essentially are differences between their parents. For me, the slightest opportunity that would keep them from engaging in such wrangling would serve their best interests.
25. From the foregoing analysis, it follows that the application dated 5th February 2026 lacks merit and is dismissed with costs to the respondent.
26. The matter will continue to be heard and determined before the magistrates' court at Kwale as scheduled.
27. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 22nd day of April 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
Ndirangu (Ms) for the Applicant.
N/A for the Respondent.
Ummu: Court Assistant.
The application
1. The applicant herein MNM through her application dated 5th February 2026 prays for an order that Kwale Children’s Case No. E010 of 2025 between herself MNM and the respondent herein PMM be transferred to Nairobi Milimani Law Courts for hearing and determination and costs of the application be provided for.
2. The grounds in support of the application are set out on the face thereof and expounded in the applicant’s affidavit sworn on 6th February 2026. I will consider the grounds in the analysis below because they are largely not disputed by the respondent in his reply.
3. The respondent has opposed the application through his replying affidavit, sworn on 17th February 2026. The replying affidavit largely sets out the proceedings before the Children’s Court. What I consider arising from the affidavit, to be the main reason for objection to the transfer of the case is that the case at Kwale Children’s Court is at an advanced stage of the hearing and having it transferred at this stage will occasion a delay in the determination thereof.
Analysis
4. It is common ground as ascertained from the affidavits of the parties that the applicant is the mother and the respondent is the father of the two minors N.M. and M.M. Both parties have conceded in their respective affidavits that the applicant was previously resident and working in Kwale County where she was running her own business. The two minors were enrolled and schooling at FOT school within Kwale County.
5. The respondent deposes that through interim orders of Kwale Children court MCCHC E010/2025, the applicant has the interim custody of the minors, while he was granted access on each alternate weekend of the month during the open school period, pending the hearing and determination of the matter. That the court further directed the applicant to take care of minors’ rent and subsistence expenses while he takes care of medical, school and school related expenses. He deposes that in spite of that order, the applicant has denied him access to the minors since the start of year 2026 in spite of him satisfactorily performing his part of the court order.
6. The applicant deposes that she has now relocated to Nairobi, where she has secured a source of income to meet the minors’ basic needs. She has enrolled the minors, and they are now attending school at HGS, Mukuru.
7. The respondent deposes that he was informed of the applicant’s relocation from Kwale to Nairobi through her advocates. He deposes further that the respondent had unilaterally enrolled the minors at a different school without consultation with him or leave of the court and was seeking his commitment to pay the school tuition fees, school entry fees and other school-related costs.
8. The respondent deposes that the case before the Children’s Court at Kwale MCCHC E010/2025 is part-heard, with the applicant having closed her case, and the matter is at the defense hearing stage. The defence has already called one of its four witnesses. Further, a voir dire examination of the minors was conducted in the physical courtroom and their responses recorded by the magistrate. The court has recorded their testimony and demeanor, and thus, the minors may not be required to testify again. He deposes that the transfer of the matter may cause unnecessary delay and possible reopening of issues already settled. Further, transferring a part-heard matter when evidence has already been taken may cause prejudice and necessitate a de-novo hearing, contrary to the interests of justice.
9. Further, the children’s court at Milimani, Nairobi, is known to have a substantially heavier case load than the Children's court at Kwale, and transferring a part -heard matter there is likely to delay its expeditious conclusion, contrary to the constitutional imperative that children’s matters be determined without undue delay.
10. Further, that modern court infrastructure allows the matter to proceed virtually, he is willing to participate in online proceedings should logistical inconvenience arise.
11. The applicant’s take on the issue is that the pending matter is yet to be determined to its logical conclusion, and the same will proceed from the point it has reached.
12. She deposes that owing to her relocation, current residence and schooling of the minors, it is in their best interests that the matter be heard and determined at the Children’s Court in Nairobi.
13. The applicant deposes further that transfer of the matter will not cause any prejudice to the respondent.
14. Learned counsels for the parties agreed that the application could be determined on the affidavits filed by the parties.
Determination
15. I have considered the grounds in support of the application and the response thereto. The single issue for determination is whether the transfer of the matter pending before the Children’s Court at Kwale would be in the best interests of the minors.
16. The jurisdiction of the High Court to transfer suits from one Court to another is provided under Section 18 (1) of the Civil Procedure Act (Cap. 21) Laws of Kenya, which states as follows-
“(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.”
17. As stated above, the overriding consideration is what would be in the best interests of the minors in the determination of this application. According to the applicant, the current residence and schooling of the minors would require that the matter be heard and determined at the Nairobi Children’s Court and the transfer will not occasion any prejudice to the respondent.
18. The respondent does not dispute the above depositions. From his replying affidavit, it is apparent that he is also based in Nairobi and his initial wish was that the case be heard and determined at the Nairobi Milimani Children’s Court. He had filed at Nairobi, Milimani Children's Court Case No. MCCHCC E763 of 2025, but the applicant opposed the application, and the court decided that the case be filed in the Kwale Magistrate’s Court. The applicant went ahead of him and filed the case now pending before the Kwale Magistrate's Court, No. MCCHC E010/2025, which she again wants transferred back to Nairobi.
19. I do not think there is much to grouse over that issue, seeing that the reasons for the filing of the case at Kwale were evident. Indeed, the applicant was then resident in Kwale with the minors, and the case had not taken off at all. The question is, will the applicant avail herself of the same reasons in the present application? I do not think so.
20. I am persuaded to follow the holding of the High Court in a similar application to this one in SKM v SNI (Suing as the Mother and Next Friend) [2023] KEHC 19932 (KLR), where the court said:
“Ultimately, the interests to be protected as provided under the Constitution and the Children’s Act, are the best interests of the children, not the interests of the parties herein, and the applicant has not disclosed any of the children’s interests that will be adversely affected and in what way, in the Nairobi Court, which would be protected specifically in the Makueni Magistrate’s Court.”
21. Similarly, in this case, other than mentioning without providing any convincing reason that due to the current residence and schooling of the minors, their best interests will be served by transferring the case to Milimani, Nairobi, the applicant has not offered any convincing reason to back up that assertion.
22. On his part, I think the respondent has pitched a strong case against the transfer of the matter from the Kwale Magistrate’s Court to the Milimani Children’s Court, even as it is evident that both parties and the minors are back to Nairobi, where the minors are also schooling.
23. The reasons are several, the first among them being that the case is now substantially heard with the plaintiff’s case closed and the defendant’s case partly heard. Considering that this has been possible in less than twelve months, it is a clear demonstration that the matter has proceeded expeditiously. The applicant has not challenged the respondent’s assertion that if the case were still in Nairobi, it would take longer to reach that stage.
24. Secondly, as stated by the respondent, once the minors' views have been taken, the presiding magistrate is in a better position to evaluate their demeanor. If this has to be done again by a different magistrate, it will obviously not be in the minors' best interests to be subjected to another court appearance and examination over the same issues. It cannot be in the minors' best interests to attend court and be examined on issues they barely understand, which essentially are differences between their parents. For me, the slightest opportunity that would keep them from engaging in such wrangling would serve their best interests.
25. From the foregoing analysis, it follows that the application dated 5th February 2026 lacks merit and is dismissed with costs to the respondent.
26. The matter will continue to be heard and determined before the magistrates' court at Kwale as scheduled.
27. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 22nd day of April 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
Ndirangu (Ms) for the Applicant.
N/A for the Respondent.
Ummu: Court Assistant.