Stephen Kariuki Mugo VS PAULINE MUGO AND CHARITY WAMBURA MUGO

1. Before this court for determination is the Preliminary Objection dated 23^rd October 2023  by which the Respondents object to the application filed by SKM (hereafter “the Applicant”) dated 4^th September 2023. In the said application, the applicant sought the following orders;-
2. Spent.
3. THAT this Honourable Court be pleased to order that the Respondents and or their agents be restrained from removing the child I.W.M from the jurisdiction of this court without leave of the court or written consent of the Applicant, pending the hearing and determination of this application.
4. THAT this Honourable court be pleased to order that the Respondents and or their agents be restrained from removing the child I.W.M from the jurisdiction of this court without leave of the court or written consent of the Applicant, pending the hearing and determination of the appeal.
5. THAT this Honourable Court do issue an order of stay of execution of the order dated 8^th August 2023 as well as the proceedings filed in the Children’s Court in Children’s Case No. E1295 of 2023 pending the hearing and determination of this application.
6. THAT this Honourable Court do issue an order of stay of execution of the order dated 8^th August 2023 as well as the proceedings filed in the Children’s Court in Children’s Case No. E1295 of 2023 pending the hearing and determination of the appeal.
7. THAT the Respondents be ordered forthwith to enable the child IWM to resume and attend his studies at the Oshwal Academy pending the hearing and determination of the appeal.
8. THAT this Honourable Court be pleased to order the immediate restoration of the custody of the minor, IWM to the Applicant pending the hearing and determination of this application.
9. THAT this Honourable Court be pleased to order the immediate restoration of the custody of the minor, IWM to the Applicant pending the hearing and determination of the appeal.
10. THAT the court do make any such other or further orders in the best interests of the minors as it deems fit.
11. THAT costs of this Application be in the cause.
12. The Preliminary Objection is based on the following grounds;
13. THAT the appeal as filled is incompetent, defective, bad in law and an abuse of judicial time and resources.
14. THAT the appeal as filled offends the mandatory doctrine of ripeness. The subject matter is yet to crystalize thus there is no substantive decision on the merits.
15. THAT the Honourable court lacks jurisdiction to grant the orders sought in the Memorandum of Appeal, the jurisdiction residing within the purview of the children’s court.

BACKGROUND

1. The Applicant and the 1^st Respondent are the biological parents of  L.M.K and  I.W.M who are 20 years Old and 16 years old , respectively. The 2^nd Respondent is the sister of the 1^st Respondent and is currently in custody of the two children as the 1^st Respondent is resident in Australia.
2. The Respondents filed an application dated 8^th August 2023 in Nairobi Children’s Case Number E1295 of 2023. Hon. F. Terer (Mr.) Senior Resident Magistrate issued the following orders ex parte pending inter partes hearing of the Application;
3. That the Plaintiffs have actual custody of the minors;
4. That the Defendant or persons acting at his behest are restrained from interfering with the plaintiff’s possession of the minors;
5. That the OCS nearest police station to facilitate compliance;
6. That a children officer’s report to be prepared and filed within 14 days herein as well;
7. That the application be served for inter parties hearing on 12^th September 2023.
8. Being aggrieved by the above orders, the applicant filed an appeal challenging the ruling and a notice of motion dated 4^th September 2023 seeking interim orders pending the determination of the Appeal.
9. The preliminary objection was canvassed by way of written submissions. The Applicant did not file written submissions. The Respondents submissions are dated 15^th November 2022(sic).

RESPONDENTS’  SUBMISSIONS.

1. The Respondents submit that this court lacks jurisdiction to determine  questions raised in the appeal which are within the purview of the children’s court. They further submit that since the suit has not been fully determined by the children’s court, the Respondents have an alternative remedy which is to seek for a review.
2. It was the Respondents submission that the appeal before this court is premature because the orders appealed against were issued in the interim. Counsel relied on the following decisions: SC Application No. E029 of 2023 Okiya OMtatah Okoiti & 3 others v The Cabinet Secretary for the National Treasury and Planning & 10 others; Denis Njue Itumbi v Law Society of Kenya & 55 others, Civil Application No. E126 of 2023 and Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 others [2016] eKLR.
3. Lastly, the Respondents submitted that the appeal is incompetent, defective, bad in law and an abuse of judicial time and resources having invoked the wrong jurisdiction.

ANALYSIS AND DETERMINATION

1. Having regard to the pleadings filed herein, alongside the submissions and in light of the relevant law, I discern the following as the issues for determination
   1. Whether the preliminary objection is competent
   2. Whether the preliminary objection has merit
   3. Who should pay costs
2. On the 1^st issue whether the preliminary objection is competent, the principles that guide Courts in determining the merits of a preliminary objection are well articulated in the celebrated decision of Mukisa Biscuit Manufacturing Co. Ltd vs Westend Distributors Ltd[1969] EA 696  where at page 700 paragraphs D-F Law JA (as he then was) had this to say:

....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

1. And at page701 paragraph B-C Sir Charles Newbold, P. added the following:

A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion

1. In the instant case the Respondent argues that the Notice of Motion is fatally defective as the Court lacks jurisdiction and that the Appeal on which it is hinged is itself incompetent defective, bad in law and abuse of the judicial time and resources as it offends the mandatory doctrine of ripeness. I find therefore that the Preliminary Objection as framed meets the criteria set out in the Mukisa Biscuit case cited above.
2. On the Second issue as to whether the Preliminary Objection has merit. There are two issues. First is whether the Court has jurisdiction and secondly whether the Appeal is incompetent as it is premature.
3. On jurisdiction it is well established by judicial precedent that the question of jurisdiction is paramount in any adjudication and whenever raised, the Court or Tribunal seized of the matter must as a matter of prudence inquire into it in limine and resolve the issue before doing anything concerning the matter in respect of which it is raised.
4. In the case of The Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd (1989) KLR 1 at page 14-15,Nyarangi J. stated:

“Jurisdiction is everything, without it, a court has no power to make one more step.  Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence.  A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction.”

1.  Recently the Supreme Court of Kenya in the case of Samuel Kamau Macharia vs KCB & 2 Others, Civil Application No.2 of 2011 expressed thus:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in the Matter of the Interim Independent Electoral Commission (Applicant), Const. Appl. No. 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law.”

1.    The jurisdiction of the High Court is as stated in Article 165 (3) of the Constitution which states, inter alia, the High court shall have
   1. Unlimited jurisdiction in criminal and civil matters;
   2. ..
   3. …
   4. …
   5. Any other jurisdiction, original or appellate conferred on it by legislation
2. The proceedings that gave rise to the orders appealed against were commenced and conducted at the Children's Court in accordance with the provisions of the Children Act, Cap 141, Laws of Kenya.  The Children's Court is established and conferred with jurisdiction by Section 73 of the said Act.  Part VI of the Act gives guidelines on conduct of proceedings at the Children's Court.  Decisions of the Children's Court are appealable.  Section 80 of the said Act provides:-

“Unless otherwise provided under this Act, in any civil or criminal proceedings in a Children's Court, an appeal shall lie to the High Court and a further appeal to the Court of Appeal.”

1. This court therefore, has jurisdiction to hear and determine this appeal. I dismiss that limb of the preliminary objection.
2. On the 2^nd limb, touching on the competence of the Appeal, it is argued that the Appeal is premature as it relates to ex parte orders and therefore there is no decision from which an appeal lies. Though the High Court has jurisdiction to interfere with the decision of a lower court I am not persuaded that this is a proper case for the High Court to so interfere. This court is loath to make any orders, which may pre-empt the final decision of the lower court.
3. The Applicant is seeking stay of proceedings, In William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, the Court authoritatively laid out the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court as hereunder
4. First, there must be an appeal pending before the higher Court; Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly
5. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.
6. All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4^th Edition, Vol. 37 at p. 330:

The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.

1. In Summary  a stay of proceedings is a radical remedy which is only granted in very exceptional circumstances, as stated by Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000)

As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.

1. It is evident therefore that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a rare and exceptional remedy.
2. In the case of JMK (suing as father and next friend of the minor)- vs – CWK [2021] eKLR, the Honourable court stated that:-

“ 45. Having given due consideration to this appeal, and noting that the trial court is yet to pronounce itself on the core issues of custody and access, I do not find reason to interfere with the  trial court’s direction that the main suit be heard before  any orders  were made. That  in my view, would enable that court make an informed decision whichever way it goes”.

1. Similarly in the case of AMM (suing as the mother and next friend of the Minor SM) v (Particulars withheld) School and Board of Governors [2016] eKLR the Honourable court held that:-

“………It is my view that the issues that the petitioner herein has raised as regards the proceedings in the said court are issues that this court cannot address without pulling the carpet, so to say, right under the feet of the learned Magistrate. The said issues would be best addressed on appeal in the event that the petitioner will be dissatisfied with the decision of the said Magistrate”.

1. Based on the foregoing, I would concur with the Respondent in this regard. The trial Court has set a date for the inter partes hearing of the Application where both parties will have an opportunity to canvass their respective positions. In Independent Electoral and Boundaries Commission v Jane Cheperenger and others (2015) eKLR, the Supreme Court stated;

[21]…The true preliminary objection serves two purposes of merit: firstly it serves as a shield for the originator of the objection- against the profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…..

1. I therefore consider it in the interests of justice to strike out the Notice of Motion dated 4^th September 2023 and direct that the parties return to the trial court and the matter proceed to hearing of the main suit on a priority basis
2. On costs, having regard to the relationship between the parties and the nature of the matter each party will bear their own costs.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 15^th day of March, 2024.

In the presence of:

…Ms. Tole…………………………. for the Appellant

……………………………. for the Respondent