MOHAMMED NOOR KIMANI VS SUSAN WANJIKU MURIUKI MOHAMMED NOOR KIMANI VS SUSAN WANJIKU MURIUKI

INTRODUCTION

The applicant in this matter has approached this court by way of a Notice of Motion dated 19^th September 2024 for the following orders;-
THAT this Application be certified urgent and the same may be heard ex-parte in the first instance for interim orders.
THAT this Honourable Court be pleased to issue an order for the arrest of the Respondent, and the arrest to be executed by the Officer Commanding Station at Capitol Hill Police Station.
THAT the Respondent be ordered to immediately surrender her passport in this Honourable Court.
THAT the Respondent be prohibited from leaving the jurisdiction of this Court until this matter is conclusively resolved.
THAT the Officer Commanding Station at Capitol Hill Police Station be directed to search the Respondent's premises for the passport.
THAT the Officer Commanding Station at Capitol Hill Police Station be authorized to forcibly enter the Respondent's premises, if necessary, in order to execute the search for the passport.
THAT an order be issued to the United States Embassy, forbidding the approval of any visa application for the Respondent or her departure from the jurisdiction of this Court until this matter is determined.
THAT this Court declares that the minor involved in this application is in urgent need of care and protection.
THAT the costs of this application be provided for.
THAT the Honourable Court to be pleased to make any other appropriate orders or relief as it deems fit, in order to protect the Applicants' rights and the rights of the minor.
In response to the application the respondent filed an affidavit in which she deposed;-
She is the biological mother of the child/minor hence competent to swear this affidavit.
THAT the Application is frivolous, vexatious and an abuse of the court process
THAT the Applicant herein has not disclosed to this court that there is a pending and/or an ongoing case that he has filed against me in the Milimani Magistrate Court case No. 953 OF 2024 NOOR MOHAMMED KIMANI VERSUS SUSAN WANJIKU MURIUKI in relation to the minor NOOR MUCHAI KIMANI .
In that subordinate court case, the Applicant has filed a similar application seeking almost similar orders from the court.
That her advocates on record also filed an application dated 30/8/2024 seeking the production of the minor who had been hiden by the Applicant herein and/or his relatives and/or agents from me.
The Court upon perusing her Application dated 30/8/2024 before Hon Dr. Alice Macharia, the court issued an order that the said Application be heard on 9/9/2024.
When the matter came up for hearing in court on 9/9/2024 before Hon Elizabeth Muiru and upon hearing my application in the presence of the Applicant's advocates for the production of the minor in physical court, the court ordered that the minor be produced in court on 10/9/2024 and subsequently gave her temporary custody of the minor among other orders.
THAT in response to paragraph 2 of the Supporting Affidavit, it is true that the Applicant is the father of the minor Noor Muchai Kimani
THAT it is not true that she has planned and/or have intentions of taking the minor out of the jurisdiction of the Court and/or Kenya with an intention of hiding the minor from the Applicant.
The Applicant is an absent parent and last saw and/or was in physical contact of the minor when he was about one year old.
The Applicant left Kenya for the USA and has stayed there since then to date.
THAT the minor is currently enrolled at Moi Educational Centre pursuant to a court order issued on 10/9/2024 and which was the original school that the Applicant and I had agreed to take minor, we also agreed that the minor temporarily stays at the Applicant's Relative one Zainabu Wambui Mwangi while I was out of the country for a short -term job assignment. The Court further ordered that she pays school fees for the minor for his remaining term.
The Applicant herein had secretly sneaked the minor to Josna Primary and Junior Secondary without her knowledge after the Applicant realized that she was looking for the minor, the applicant organized to have the minor be sneaked from Zainabu's residence, then to Kawangware at the Applicant's ancestral home and then to the Applicant's friend by the name Rebecca Wamboi, a stranger to the minor.
Further, the said Rebbecca Wamboi enrolled the child to Josna Primary and Junior Secondary school.
She engaged the Police to help her know the where abouts of her child after she returned to Kenya from work and her efforts to contact a relative of the applicant one Zainabu Wambui Mwangi, who by consent with the Applicant, she had left the minor in her temporary custody before she left the country was unreachable having blocked all her calls and messages.
That she was apprehensive of the whereabouts of the child/ the minor having been blocked by Zainabu whom she had left the child with before she left Kenya.
That she went to the Applicant's ancestral home in kawangware to look for the child and that is when she was captured by the alleged CCTV footage.
That her search for the child was in good faith, the Applicant herein having vowed to frustrate me by insulting me and colluding with his relatives and agents to deny me access to the minor.
THAT in response to paragraph 7 of the supporting Affidavit the Applicant has never been in custody of the minor.
The last time the Applicant was in physical/actual custody of the child was when the Child was around one year old.
The Applicant has not disclosed to court that he has been living in the United States of America where he is married and is raising another family and has never bothered to come to Kenya and visit the subject minor herein.
THAT she legally sought the assistance of the Police to help her find the minor son after phone calls and messages to the Applicant's relative that she had left the child with in Kenya was unreachable and the Applicant herein had hailed insults to her and my parents stating that she would never see her child.
THAT the Applicant lives in the United States of America and it is suspicious on how he was able to report the alleged matter at Muthangari Police station and even obtain OB numbers annexed and marked MNK-4 and 5 when most complaints in Kenya are done in person.
THAT it is not true that she wanted to abduct the minor using a third party on allegation of paying him kshs. 3,000/= or any other sum to the party.
That she is the minor's mother and it is not possible that she would abduct her own child, a child she has lived with for over 9 years in the absence of the Applicant herein.
THAT she has never threatened in a football Academy and/or demanded the surrender of the minor to her by allegedly saying that the minor does not have a father and/or that the minor is a stranger to the Applicant
That she has never done anything adverse to prevent the child from training at Insight Football Academy or any other place, there is no evidence that has been placed before this court showing that the minor has been dismissed from the alleged academy and/or that I am the one who caused the minor not to train in the said academy or any other place.
THAT contrary to the averments of the Applicant that he has no intention of keeping the minor away from her, his actions speak to the contrary especially in his recent attempts to hide the minor from her.
That she has never denied the Applicant access to the minor and that she remains willing to settle the matter amicably
THAT she has no plans of fleeing with the minor as alleged by the Applicant. I have single handily raised the minor for over 9 years in the absence of the Applicant herein. The Applicant is now trying to frustrate me by dragging frivolous applications to court against me as earlier promised in his texts to me presented to this court.
THAT she does not intend to leave the country with the minor secretly.
THAT she is not aware of any threats to the applicant by any member of her family.
THAT it would be a miscarriage of justice to be ordered to deposit her passport at Capital hill Police station or have the OCS arrest her and produce her in court having committed no criminal offence.
That the Applicant's application is akin to the institution of a private prosecution against her without the leave of court and that he has overlooked the role of the office of the Director of Public Prosecutions who has the Constitutional power to prosecute criminal cases.
Having allegedly reported her to the police, the procedure used is suspect, and the Applicant should wait for an investigation report from the police and let the law take its cause as provided under article 157 of the Constitution and the National Prosecution policy.
that she is currently in Kenya and the minor is in her custody it will not be in the interest of justice to have her arrested and detained yet she is the only parent in the country taking care of the minor as per the court order.
THAT she has never been unco-operative, never issued threats to the Applicant and I don't have any intention of fleeing with the subject minor.
That she is not at a flight risk and should not be barred from leaving the jurisdiction should she so desire. In addition, it is Zainabu Wambui Mwangi a relative to the Applicant who has the minor's birth certificate and passport having left them with her while the minor was in her temporary custody, there is no way she can leave with the minor as alleged without using the said documents.
THAT in response to paragraph 23 of the Applicant's supporting affidavit, it is in the best interest of the child that the application by the Applicant be disallowed with costs.
The applicant on the other hand maintains in utter disregard of the due process of law the respondent using unidentified police officers attached at Kiambu and Kitengela Police Stations to cause intimidation, instil fears and issue threats on himself and his relatives in a bid to acquire forceful physical custody of the minor in order to execute her master plan to relocate the minor outside the Republic of Kenya.
Further, the applicant asserts that from the onset, the respondent has failed to carry out her motherly responsibilities.
That the minor NMK has suffered harm in the hands of the respondent and her relatives and is likely to suffer again if at all in the unlikely event, the respondent gains or and is granted the actual access and physical custody of the minor.
The application is strenuously opposed by the respondent and the crux of the matter is that the issue at hand is purely a dispute pitting the parents of the minor against each other.
It is important for this court to point out that the liberty of any person cannot be curtailed without a proper factual and legal basis. The respondent is not the subject of any criminal proceedings before the courts which would warrant limiting her right to liberty. That can only be done upon proof that she is a flight risk and that she has committed a criminal offence for which she is on trial.
Jean Jacques Rousseau (1712-1778) a famous thinker of the French Enlightenment movement (BERTRAM, 2017) spent his whole life fighting for the freedom and equality of the masses. Rousseau’s The Social Contract was published in 1762 and in it wrote scribbled the important phrase that ‘man is born free and everywhere he is in chains’’. It is the chain that the present applicant wants the court to have placed around the feet of the respondent to tether her in this country to help him prosecute the matter in the Children’s Court while he remains free in the United States where he is said to be residing. This court cannot accede to such an unattractive and obviously unjust invitation.
Humans are born with the right to liberty and equality. Essentially, they are inalienable and unalienable rights in human nature. It can be accepted that the most significant value in Rousseau’s thesis of freedom and equality in the state of nature is the affirmation that liberty and equality are innate: natural human rights that belong to human nature. Since it is a natural and an inherent right, that belongs to human nature, it inevitably has universal, eternal, and immutable values. The modern society has embraced that thinking and immortalized it through specific constitutional provisions such as Article 29 of the constitution of Kenya.
The applicant is thus inviting the court to limit the respondent’s liberty through the application thus invading into her inalienable right to liberty.
The orders sought by the applicant to the extent that they seek to limit the respondents right to freedom of movement, to grant them on the ground advanced by the applicant would be to violate Article 29 of the Constitution on freedom and security of the Person. The manner in which the court has been moved clearly points to the desire by the applicant to have the court arbitrarily allow the limitation of the respondent’s rights.
Article 24 of the Constitution requires that any limitation of a right be granted only if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The fact that parents are tussling over the custody of a minor cannot be a justifiable reason to limit one’s freedom more so considering that the applicant is already out there enjoying his freedom.
The demand by the applicant to have the passport of the respondent surrendered to this court goes against the express provisions of Article 12 of the of the Constitution since the respondent enjoys an unfettered right to hold a passport like every other citizen. To order that the same be held by the court to facilitate the applicant to prosecute his case in the Children’s court would be to limit the respondents right unfairly because she would not be able to travel out of this country until the matter in the Children’s court is done.
The duty of this court is not to assist parties in prosecuting their civil disputes. The applicant should be able to move the Children’s court for whatever orders that he believes would further his case before that court. The application before this court is a classic case of abuse of abuse of the legal process since the parties agree that there are proceedings pending in the children’s court.
Similarly, this court cannot order the arrest of the respondent on account of the material placed before it. The respondent has explained the circumstance that led her to embark on a frantic search of her child.
The applicant does not deny that she is the biological mother of the minor in issue and as such she is entitled to comb everywhere in search of her child if for some reason those that she left with the minor fail to disclose the whereabouts of the minor.
The security of every child is the concern of every rational parent. It would bother any sensible parent if they are unable to gather information on the whereabouts of their minor. The action of the respondent cannot therefore be criminalized in the manner the applicant has invited the court to do.
To arrest a parent for engaging on the search of a child would be a great travesty of justice. The court therefore similarly declines that invitation.
Finally, the applicant has also moved the court to issue an order against the United States Embassy to bar it from approving any visa application for the respondent. The applicant fails to recognize that the Embassy of the United States is immune to orders of this court on matters such as visa approvals. That is an act of state and therefore a matter left to the exclusive discretion of the Visa issuing state. The US is a sovereign State and just like this court cannot injunct the government of Kenya n so is the place of the US embassy.
The Vienna Convention on Diplomatic Relation of 1961 defines a framework of diplomatic relations and is aimed at facilitating the development of friendly relations between Governments. Diplomatic immunity is granted to ensure that diplomatic missions have privileges that enable diplomats to perform their functions without fear or coercion. The convention is almost universally ratified and observed, Kenya having ratified the same cannot entertain applications such as the present one which would result in orders that take away the discretion of the Consular officials of a foreign government on the matter of visas.
The applicant’s application in that regard must therefore fail.
The upshot of the above is this that having considered all the pleadings by the parties as well as the submissions, the instant application lacks merit and is therefore dismissed in its entirety.
It is so ordered.