1. The Court of Appeal in Mbogo & Another Vs. Shah [1968] EA 93, stated that it would only interfere with the exercise of discretion by a lower court where it is satisfied that the decision of the lower court is clearly wrong “… because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
2. Equally the well settled position was reasserted in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR where this Court stated thus: “… this Court will not interfere with the exercise of discretion by the Judge in the court below unless satisfied that the decision of the Judge is clearly wrong because of some misdirection, or because of failure to take into consideration relevant matters or because the Judge considered irrelevant matters and as a result arrived at a wrong conclusion, or where there is a clear abuse by the Judge of his discretion. Whenever a court exercises a discretion, there is always a presumption of correctness of decision which is reversible only upon showing of clear abuse of discretion.”
3. In the Notice of Motion dated 6 th July 2026, the Appellant is seeking that pending the hearing and determination of this application, the appellant be granted leave to temporarily remove the minor Ahmad Eissa Noordin from the Jurisdiction of this Honourable court to travel to London, United Kingdom during his school holidays upon such terms and conditions as this honourable court may deem fit. Additionally, the applicant do return the minor to the jurisdiction immediately upon expiry of the holiday period and in any event before the reopening of school.
4. The reliefs sought herein were sought before the lower court and declined. Consequently, an appeal was proffered against the Judgement of the trial magistrate and the grounds of appeal were set out in the Memorandum of Appeal;
a. The learned Trial Magistrate erred in law and fact by failing to treat the best interests of the minor as first and paramount consideration contrary to section53(2) of the Constitution and section 8 of the children Act, thus elevating the procedural constitution considerations.
b. The learned trial Magistrate erred in law and fact by declining to determine the appellants application on evidence properly before the court and instead deferred the matter to a future report.
c. The learned trial magistrate erred in law and fact by failing to appreciate that the proposed travel was temporary scheduled entirely during the minor’s school holiday.
d. The learned trial magistrate erred in law and fact by failing to accord proper weight to the uncontroverted evidence that the appellant had made comprehensive travel arrangements including obtaining visas confirmed return tickets accommodation and complete itinerary.
e. The learned trial magistrate failed to properly evaluate the expert evidence before the court including the therapeutic reports in respect to the minor.
f. The learned trial magistrate erred in law and fact by failing to appreciate that the appellant is a court appointed primary custodian and has consistently complied with all court Orders and there is no evidence that he intends to remove the minor permanently from the jurisdiction of the court.
g. The learned trail magistrate erred in law and fact to appreciate that the proposed trip will present the minor with unique educational, recreational and developmental opportunity including attendance at Wimbledon Tennis Championships Final.
h. The learned trial magistrate erred in law and fact by taking into account irrelevant and left out relevant considerations consequently arriving at a decision that was plainly wrong and occasioned a miscarriage of Justice.
i. The learned trail magistrate erred in law and fact in dismissing the appellant’s subsequent application for review as the travel was time was time bond.
j. The learned trial magistrate erred in law and fact by allowing procedural timelines to defeat substantive justice contrary to article 48, 50 159(2)(d) of the constitution.
k. The learned trial Magistrates decision was against the weight of the evidence placed before court and was plainly unreasonable, unjust and inconsistence with constitutional and statutory principles governing matters concerning children.
5. Parties agreed to dispose the matter by way of oral submissions and written submissions. I have with singleness of my mind put them into context in this appeal. Additionally, I have decided to deal with the issue of permission to travel out of the country and restrained myself from delving into issues, yet to be determined.
Analysis and Determination:
6. I have carefully considered the grounds as set in the Memorandum of Appeal as well as submissions by counsel and discern one issue for determination; whether or not, it is in the best interest of the minor herein to go for vacation, abroad.
7. Perusal of the Parental Responsibility Agreement signed on 8 th July, 2025 by the parents herein captures key areas that form the welfare of the minor. Curiously, among the issues addressed before-hand, is a provision of travel by a child during holidays and weekend access. Under this sub-heading at page 4 of this agreement, it is recorded; “For avoidance of doubt, the child may travel outside the country with either parent and either parent agrees to provide the other with sufficient notice and consent to travel as required for easy of international travel.”
8. However, given the fact that parties are not in talking terms, none sees anything good from the other, hence this matter. Put differently, t his being a Children matter, it ought not be lost, that to an extent that they are now in court, parents normally use children to settle their scores. I am not alone. In HKN Vs LNW [2024] KECA 437 (KLR) the Court of Appeal said “ We need not rehash the paramount consideration in any decision on a matter concerning children-the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly. It is not lost to us that whenever matters relating to children end up before courts, the parents are usually at loggerheads and sometimes using the children to settle their own personal scores. It is therefore incumbent upon the court to become the ultimate protector of the minors in the clouded environment where each parent purports to assert the best interests of the child. In doing so, the court is granted judicial discretion to make certain findings upon hearing the parties. Such are the findings of fact, peculiar to the circumstances of each case that we, as an appellate court and of second instance in this case should exercise restraint in interfering with.
9. Consequently, courts must rise above the personal issues and vendetta between parents of a child and focus on the best interest of the child. It must also be borne in mind that a child welfare encompasses among other parameters; systems, policies, and practices dedicated to ensuring the physical, mental, and social well-being of a child.
10. I note from the records in the file, that travelling abroad, was one of the consensus matter parties reduced into writing. It does not a become a surprise to either party. Instead, thereof, either party is at liberty to travel with the child during holidays and weekend access.
11. In disposal, it will not only be in the interest of the minor to be allowed to travel to UK during the holiday but it will also be an opportunity to change the environment before the school reopens. I consequently make the following orders;
a. This appeal is allowed.
b. The ruling and the orders of the Children Court delivered on 3 rd July 2026 is hereby set aside.
c. Leave is granted to the Appellant to temporarily travel to London for holiday before school reopens.
d. Each party to bear own costs.
Orders accordingly.
Delivered virtually this 21 st July, 2026.
R.K. Ondieki,
Judge.
In the presence of: Mohammed for Respondent.
Christine- C/A Hasham for Applicant.
Mr Mohammed for the Respondent
Mr Hasham for the Appellant.
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2. Equally the well settled position was reasserted in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR where this Court stated thus: “… this Court will not interfere with the exercise of discretion by the Judge in the court below unless satisfied that the decision of the Judge is clearly wrong because of some misdirection, or because of failure to take into consideration relevant matters or because the Judge considered irrelevant matters and as a result arrived at a wrong conclusion, or where there is a clear abuse by the Judge of his discretion. Whenever a court exercises a discretion, there is always a presumption of correctness of decision which is reversible only upon showing of clear abuse of discretion.”
3. In the Notice of Motion dated 6 th July 2026, the Appellant is seeking that pending the hearing and determination of this application, the appellant be granted leave to temporarily remove the minor Ahmad Eissa Noordin from the Jurisdiction of this Honourable court to travel to London, United Kingdom during his school holidays upon such terms and conditions as this honourable court may deem fit. Additionally, the applicant do return the minor to the jurisdiction immediately upon expiry of the holiday period and in any event before the reopening of school.
4. The reliefs sought herein were sought before the lower court and declined. Consequently, an appeal was proffered against the Judgement of the trial magistrate and the grounds of appeal were set out in the Memorandum of Appeal;
a. The learned Trial Magistrate erred in law and fact by failing to treat the best interests of the minor as first and paramount consideration contrary to section53(2) of the Constitution and section 8 of the children Act, thus elevating the procedural constitution considerations.
b. The learned trial Magistrate erred in law and fact by declining to determine the appellants application on evidence properly before the court and instead deferred the matter to a future report.
c. The learned trial magistrate erred in law and fact by failing to appreciate that the proposed travel was temporary scheduled entirely during the minor’s school holiday.
d. The learned trial magistrate erred in law and fact by failing to accord proper weight to the uncontroverted evidence that the appellant had made comprehensive travel arrangements including obtaining visas confirmed return tickets accommodation and complete itinerary.
e. The learned trial magistrate failed to properly evaluate the expert evidence before the court including the therapeutic reports in respect to the minor.
f. The learned trial magistrate erred in law and fact by failing to appreciate that the appellant is a court appointed primary custodian and has consistently complied with all court Orders and there is no evidence that he intends to remove the minor permanently from the jurisdiction of the court.
g. The learned trail magistrate erred in law and fact to appreciate that the proposed trip will present the minor with unique educational, recreational and developmental opportunity including attendance at Wimbledon Tennis Championships Final.
h. The learned trial magistrate erred in law and fact by taking into account irrelevant and left out relevant considerations consequently arriving at a decision that was plainly wrong and occasioned a miscarriage of Justice.
i. The learned trail magistrate erred in law and fact in dismissing the appellant’s subsequent application for review as the travel was time was time bond.
j. The learned trial magistrate erred in law and fact by allowing procedural timelines to defeat substantive justice contrary to article 48, 50 159(2)(d) of the constitution.
k. The learned trial Magistrates decision was against the weight of the evidence placed before court and was plainly unreasonable, unjust and inconsistence with constitutional and statutory principles governing matters concerning children.
5. Parties agreed to dispose the matter by way of oral submissions and written submissions. I have with singleness of my mind put them into context in this appeal. Additionally, I have decided to deal with the issue of permission to travel out of the country and restrained myself from delving into issues, yet to be determined.
Analysis and Determination:
6. I have carefully considered the grounds as set in the Memorandum of Appeal as well as submissions by counsel and discern one issue for determination; whether or not, it is in the best interest of the minor herein to go for vacation, abroad.
7. Perusal of the Parental Responsibility Agreement signed on 8 th July, 2025 by the parents herein captures key areas that form the welfare of the minor. Curiously, among the issues addressed before-hand, is a provision of travel by a child during holidays and weekend access. Under this sub-heading at page 4 of this agreement, it is recorded; “For avoidance of doubt, the child may travel outside the country with either parent and either parent agrees to provide the other with sufficient notice and consent to travel as required for easy of international travel.”
8. However, given the fact that parties are not in talking terms, none sees anything good from the other, hence this matter. Put differently, t his being a Children matter, it ought not be lost, that to an extent that they are now in court, parents normally use children to settle their scores. I am not alone. In HKN Vs LNW [2024] KECA 437 (KLR) the Court of Appeal said “ We need not rehash the paramount consideration in any decision on a matter concerning children-the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly. It is not lost to us that whenever matters relating to children end up before courts, the parents are usually at loggerheads and sometimes using the children to settle their own personal scores. It is therefore incumbent upon the court to become the ultimate protector of the minors in the clouded environment where each parent purports to assert the best interests of the child. In doing so, the court is granted judicial discretion to make certain findings upon hearing the parties. Such are the findings of fact, peculiar to the circumstances of each case that we, as an appellate court and of second instance in this case should exercise restraint in interfering with.
9. Consequently, courts must rise above the personal issues and vendetta between parents of a child and focus on the best interest of the child. It must also be borne in mind that a child welfare encompasses among other parameters; systems, policies, and practices dedicated to ensuring the physical, mental, and social well-being of a child.
10. I note from the records in the file, that travelling abroad, was one of the consensus matter parties reduced into writing. It does not a become a surprise to either party. Instead, thereof, either party is at liberty to travel with the child during holidays and weekend access.
11. In disposal, it will not only be in the interest of the minor to be allowed to travel to UK during the holiday but it will also be an opportunity to change the environment before the school reopens. I consequently make the following orders;
a. This appeal is allowed.
b. The ruling and the orders of the Children Court delivered on 3 rd July 2026 is hereby set aside.
c. Leave is granted to the Appellant to temporarily travel to London for holiday before school reopens.
d. Each party to bear own costs.
Orders accordingly.
Delivered virtually this 21 st July, 2026.
R.K. Ondieki,
Judge.
In the presence of: Mohammed for Respondent.
Christine- C/A Hasham for Applicant.
Mr Mohammed for the Respondent
Mr Hasham for the Appellant.
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