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JudgmentTRACY MUGURE KEBATTA VS CLAUDE ALLEN DARY16 min read

TRACY MUGURE KEBATTA VS CLAUDE ALLEN DARY

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


  1. Before this court for determination is the Notice of Motion dated 13th November 2024, presented under Section 1A, 3, 3A of the Civil Procedure Act, Order 42 of the Civil procedure Rules; Sections 4, 8, 24, 103 and 104 of the Children’s Act. The Applicant seeks the following orders;
    1. Spent
    2. Spent
    3. THAT an Order do issue stopping the removal of the Child namely Rowan Jomo- Legend Dary from Kenya pending the hearing and determination of this Appeal.
    4. Spent
    5. THAT an Order do issue vesting interim custody of the Child namely Rowan Jomo- Legend Dary in the Applicant/ Appellant pending the hearing and determination of this Appeal
    6. Spent
    7. THAT pending the hearing and determination of the Appeal, this Honourable Court be pleased to stay the Ruling and Order of Hon. E M Muiru (Principal Magistrate) in Children’s Case No. E694 of 2024 made on 8th November 2024.
    8. THAT this honourable Court be pleased to grant any such or further orders that it may deem fit and just to grant in the best interests of the child.
    9. THAT costs of this application be provided for.
  2. The Application is supported by the Affidavit of the Applicant sworn on 12th November 2024. The Applicant is aggrieved by the ruling of the Hon. E M Muiru (Principal Magistrate) dismissing the Appellant’s Application dated 17th April 2024 and striking out the entire suit on the basis that it is Res Judicata the issues having been canvassed in High Court CC No. E789 of 2022.
  3. She challenges the finding that this matter is sub judice on account that there are custody proceedings pending in New York Court between the Appellant and the Respondent.
  4. It is averred that if the Court had referred to the Children’s Officers report, it would have arrived at a different conclusion. She avers that she is the primary care giver for the minor as she now has a job that allows her to work remotely and spends more time in Kenya than New York, which was the situation obtaining when her mother applied for guardianship.
  5. It is further averred, that the Applicant has laid the basis for the grant of the orders sought, namely;
    1. That substantial loss might occur if the stay is not granted. It is submitted that the child will suffer greatly if he is removed from her care and that his mental, emotional and overall wellbeing would be jeopardized.
    2. That the application was made without inordinate delay and;
    3. That the applicant is willing to give any security required by the Court.
  6. It is submitted that the Court in New York, has deferred to the Kenyan Courts and further the Attorney for the Child in New York and the Children’s officer in Nairobi, have both recommended that the Child remain in Kenya, pending the conclusion of the litigation so as to ‘maintain the emotional stability’ of the minor.
  7. It is submitted that in arriving at the decision, the Magistrate’s Court failed to factor in the Child’s best interests.
  8. Vide replying affidavit sworn on 5th February 2025, the respondent opposes the application. He labels the application as, frivolous and an abuse of Court process and an attempt by the applicant to circumvent the judicial process.
  9. It is submitted that the appellant is not based in Kenya. The respondent has been providing support to the minor. There have been multiple suits initiated by the mother of the applicant and the Courts have repeatedly found that the child should be taken back to the USA.
  10. It is submitted that the opinions of the Children Attorney and the Children Officer are simply that, an opinion and that the decision of the Court delivered on 8th November 2024 stands.
  11. The Applicant swore a further affidavit on 28th February 2025. She reiterates that the judge erred in finding that the matter was res judicata as whereas her mother sought guardianship in the current matter the issue is one of custody between the Appellant and the respondent. Her mother is not a party in the present matter.
  12. She avers that the multiple applications are an endeavour to secure justice for the minor. The child is a citizen of Kenya and is deserving of the protection of the Court. She is now stable financially has a job that allows her to stay in Kenya and is the primary care giver for the minor. The Court should consider that the minor left the USA when he was one and a half years and has never gone back there.
  13. It is submitted that the most recent decision of the New York Court has granted interim custody to the grandmother.
  14. The respondent filed supplementary affidavit sworn on 12th March 2025, in which he provides ruling of the Court in New York dated 28th February 2025, requiring that the Appellant take the minor to New York at her own expense.
  15. The Respondent further avers that the mother of the Applicant continues to litigate the matter and an appeal she has filed against the denial of stay by the Court in High Court Civil Appeal No. E063 of 2024 is scheduled for ruling by the Court of Appeal on 23rd May 2025.
  16. The Respondent has in addition filed both grounds of opposition and preliminary objection to the Application. The Preliminary Objection is dated 5th February 2025 and is framed as hereunder-
    1. The application is frivolous, vexatious and an outright abuse of the Court process.
    2. The Application is res judicata on account of the rulings delivered by Justice H. Chemitei on 30th May 2024 and 20th January 2025 as well as the judgment of Hon. F. Terer dated 12th April 2024.
    3. The Application is also sub judice on account of the pending application dated 30th January 2025 and filed before this same Court by Millicent Wambui Mugh the grandmother of the child, in Milimani High Court Appeal No.  E063 of 2024- Millicent Wambui Mugh V Claude Allen Dary where she has sought similar orders.
  17. The grounds of opposition are also dated 5th February 2025 and in addition to the issues raised in the preliminary objection argue that the Court is functus officio following the rulings delivers on 30th May 2024 and 30th January 2025 in HCFA E035 of 2024 and HCFA E063 of 2024 respectively; in both matters the Court declined to issue similar orders.
  18. Pursuant to the Court’s directions the matter was canvassed via written submissions, with parties highlighting Submissions on 26th March 2025.

SUMMARY OF THE APPLICANT’S SUBMISSIONS

  1. The Applicant frames the following as the issues for determination;
    1. Whether the matter is res judicata?
    2. Whether the matter is Sub judice?
    3. Whether it is in the Best interests of the Child to remain in Kenya?
  2. On the 1st issue it is submitted that the matter is not res judicata as the well-established principles on res judicata have not been demonstrated. Reference is made to the decision in Judith Gathoni Willie v George Kihara Muchuki & 2 others [2004] eKLR ;  Nairobi HCCC No. 1322 of 1993 Caltex Oil ( Kenya) -versus- Mohamed Yusuf & Others and Kanorero River Farm Ltd and 3 others v National Bank of Kenya Limited
  3. On whether the matter is sub judice. The Applicant cites Section 6 of the Civil Procedure Act and the decisions in MAK V RMAA & 4 Others [ Petition 2 (EOO3) of 2022 [2023] KESC 21 (KLR) and M N v NA [ 2015] eKLR.
  4. On the final issue it is submitted that it is in the Child’s best interest that stay be granted. Reliance is placed on the decisions in MAK v RMAA (Supra); Republic v Senior Resident Magistrate Mombasa ex parte H L & Another [ 2016] eKLR

SUMMARY OF THE RESPONDENT’S SUBMISSIONS

  1. The Respondent on his part frames the following as the issues for determination;
    1. Whether the Application is res Judicata?
    2. Whether the application is sub judice?
    3. Whether an order of stay of execution should issue?
  2. It is submitted that the application is res judicata and reference is made to the decisions in Lotta v Tanaki [2003] EA 556; Uhuru Highway Development Limited v Central Bank of Kenya  & 2 Others [1966] eKLR; Supreme Court decision in John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 others ( Petition 17 of 2015) [2021] KESC 39 ( KLR); Henderson v Henderson ( 1843) 67 ER 313; ET v Attorney General & Another ( 2012) eKLR; Kennedy Mokua Ongiri v Jane Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR;  Benjoh Amalgamated Limited v Halkana Molu & 4 Others [ 2009] KEHC 1695 (KLR); Benson Ngugi vs Francis Kabui Kinyanjui and Others [1989] KLR 146; Pravin Bowry v John Ward & Another [ 2015] eKLR.
  3. On the 2nd issue, reference is made to Section 6 of the Civil procedure Act and the decision in Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya [2020] eKLR.
  4. On the 3rd issue, whether or not there should be a stay of execution, it is submitted that the trial court having struck out the suit there is nothing to stay, the orders issued by the Court are negative in nature. Reference is made to the decision in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [ 2016] eKLR and Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) eKLR.
  5. As to whether or not the appeal will be rendered nugatory, it is submitted that it has not been demonstrated that the order is not reversible. Reference is made to the decision in Ndambuki & Anor (suing as administrators to the late Gregory Ndambuki) v National Land Commission & 2 others (Civil Application E092 of 2024 [2024] KECA 534 (KLR) (9 May 2024) (Ruling). In any event it is submitted that the Court is obligated to consider the rights of all the parties. And in this instance the child’s right to parental care by both parents will be the paramount consideration.
  6. The Respondent relies on the decisions in BMM v PMM (Family Appeal E034 of 2024) [2024] KEHC 5657 (KLR) (6 May 2024) (Ruling); MAK v RMAA & 4 Others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (2 March 2023) (Judgment); OGM v FG & another [2020] eKLR.
  7. Finally, it is submitted that the application is an abuse of the Court process. The Respondent relies on the decision in Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR). It is submitted that the appellant has filed multiple suits and applications on the same subject matter.

ANALYSIS AND DETERMINATION.

  1. Having considered the pleadings herein, along with the submission filed, authorities cited and the applicable law, I frame the following as the issues for determination:
    1. Whether the preliminary objection has merit?
    2. Whether there should be a stay of execution pending appeal?
  2. The impugned ruling delivered on 8th November 2024 made the following orders-
    1. THAT the Applicant’s application dated 16th April 2024 is hereby dismissed with no orders as to costs.
    2. THAT the Respondent’s application dated 16th April 2024 is allowed with no order as to costs to the extent that the Plaintiff’s suit is Res Judicata and Sub- Judice
    3. THAT the Applicant’s suit is struck out in its entirety on grounds that it offends the provisions of Section 6 and 7 of the Civil procedure Act as the matter is res judicata and sub judice
    4. THAT further the Applicant is granted leave to appeal, however the prayer to stay the orders of the ruling is declined.
  3. On the 1st issue for determination as to whether or not the matter is res judicata and sub judice, this is at the heart of the appeal. A finding or determination on this issue at this stage will only serve to embarrass the appeal. For this reason, I find that the Preliminary Objection as framed is premature as it does not address the instant application which is an application for stay of execution pending appeal. The Application dated 13th November 2024 is definitely not res judicata or sub judice.
  4. On the 2nd Issue, Order 42 rule 6 of the Civil Procedure Rules provides-

(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under sub rule (1) unless—

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

(3) Notwithstanding anything contained in sub rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.

(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.

(6) Notwithstanding anything contained in sub rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

  1. Thus, the conditions an applicant for stay of execution of decree or order needs to satisfy, as set out in Rule 6(2) of Order 42 aforementioned, are:
  2. that substantial loss may result to the applicant unless the order is made;
  3. that the application has been made without unreasonable delay.
  4. that such security as the Court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
  5. The rationale for the conditions aforementioned was summarised thus in Machira T/A Machira & Co. Advocates vs East African Standard (No. 2) [2002] KLR 63:

The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the Court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in Courts, which is to do justice in accordance with the law and to prevent abuse of the process of the Court.

  1. The Applicant herein seeks that pending the hearing and determination of her application the Court grant her orders, stopping the removal of the Child namely Rowan- Jomo Legend Dary from Kenya; granting her interim and actual custody; staying the ruling and order of Hon E M Muiru made on 8th November 2024. It is submitted that the orders sought are in the best interests of the child.
  2. It is not in dispute that the application was presented expeditiously. The ruling was delivered on 8th November 2024 and the application filed on 13th November 2024. As to whether stay of execution can issue in the current circumstances, it is not disputed that in striking out the suit and dismissing the application, the Courts orders were negative in nature and therefore there is nothing to stay.
  3. The matter ought to rest there, but given the fact that this is a  matter touching on a child, I am obligated to consider whether notwithstanding my finding above it is in the child’s interests to grant orders delaying the imminent departure of the child from Kenya.
  4. It is now well established, in applications for stay in respect of decrees or orders made in matters involving children, the welfare of the children in question be given utmost consideration. In Bhutt vs. Bhutt, Mombasa HCCC NO. 8 of 2014 (O.S.), this principle was expressed thus:

In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 rule 6 of the Civil Procedure Rules, must be complemented by an overriding consideration of the best interest of the child in accordance with the injunction of Article 53(2) of the Constitution…

  1. The applicant is of the view that removal of the child from her custody is not in his best interest. He will suffer substantial loss as he will be going to New York, a new environment to him, he was last there when he was barely a year old. He will have to change schools and maybe the system of education. The applicant has indeed demonstrated that the move from Kenya will likely change the circumstances of the minor but it has not demonstrated, and, this is important,  that this will occasion substantial harm to the minor.
  2. In her pleadings in the trial Court the Applicant alludes to the various matters that have been initiated in various Courts touching on the matter. It seems that her suit is instigated by orders emananting from some of those matters. That is why she is seeking to ‘ stop the removal of the minor from Kenya’.  The move to New York will mean the father of the child will have access to him. The Children Act pronounces on the ideal situation which is that; Section 7 “Every Child shall have a right to a name and nationality and as far as possible, the right to know and be cared for by his parents” ; Section 11, “ (1) Every Child has a right to parental care and protection. (2) Except as is otherwise provided under this Act, every child has the right to live with his or her parents”
  3. In situtations such as the current case where the relationship between the parents has fallen apart, it will not be possible for the child to live with both parents at the same time. Where therefore, the parents have separated and are unable to agree, it is the role of the Court in safeguarding the interests of the Child to make a decision that provides for the child a situation as close as possible to the ideal, meaming at the very minimum orders that ensure that the child will be cared for, provided for and have access to both parents, albeit separately.
  4. Where as in the instant case one parent states the access by one parent to the child will result in substantial loss to the child, it is upon that parent to demonstrate what that harm is with sufficient detail. In the instant case, this has not been done.
  5. The applicant would have the Court behave as a race horse with blinkers on, ignoring what else is happening in its surroundings and focusing on getting to the finish line. The Court cannot act so. It is evident that other courts have pronounced or are set to pronounce on the travel of the child out of Kenya to join his father.
  6. Whether or not the Applicant is deserving of the orders is hinged on whether this application amounts to an abuse of Court process. The basis of this charge is that the applicant on her own and her mother have deployed into the universe the following matters-
    1. Children’s Case No. E789 of 2022 (consolidated with Misc. App E067 OF 2022)
    2. High Court Misc. Application No. 89 of 2019
    3. High Court FA No. E035 of 2024
    4. High Court Misc. App No E254 of 2019
    5. Court of Appeal Civil Appeal No. E049 of 2025
    6. Docket V04338-19 Tracy Mugure Kebatta vs Claude Allen Dacy.
  7. It is contended that this multiplicity of suits amounts to an abuse of the Court process and that the current application is meant to frustrate the implementation of orders made by the other courts in favour of the respondent. The applicant’s response is that the multiplicity of the suits is an expression of her resolve to protect the best interests of the minor.
  8. It is not lost on me that there are subsisting orders relating to the travel of the Child to the USA issued in these other matters. The invitation to this court to ‘stay’ the orders in those matters is clearly an abuse of the Court process. If the Applicant is aggrieved by those orders, her recourse is to challenge the existing orders. Absent blinkers, it is evident to this Court what the Applicant seeks to achieve via this application. This therefore, is a case of clear abuse of Court process if there ever was one.
  9. She is at liberty to pursue her right to litigate however not so as to circumvent valid court orders. Her available route is therefore to expedite the prosecution of the Appeal. The orders sought are not grantable in light of what the applicant and her mother have already posted in the universe. I will only reiterate that the best interest of the child principle does not give parties a carte blanche to litigate oblivious to the rules of procedure; one of the most sacrosanct being avoiding the abuse of court process.
  10. In Conclusion, these are the final orders of the Court
    1. The Application dated 13th November 2024 is dismissed in its entirety
    2. The Appeal to proceed to hearing
    3. The Appellant to prepare and serve record of Appeal within 45 days
    4. Mention on 24th June 2025 to confirm compliance and take further directions.
    5. Each party to bear their own costs

It is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 28th DAY OF APRIL, 2025.


    TRACY MUGURE KEBATTA VS CLAUDE ALLEN DARY TRACY MUGURE KEBATTA VS CLAUDE ALLEN DARY