C D M v N P M [2013] KEHC 1225 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO: 28 OF 2006

C D M...........................PETITIONER

VERSUS

N P M.......................RESPONDENT

RULING

The Motion dated 7th June 2013 sought orders that the respondent be granted reasonable access to the children of the dissolved marriage for the period between 16th June 2013 and 22nd June 2013.

The background is that this court had on 1st March 2007 made orders granting the respondent reasonable access to the children on terms to be agreed between the parties.  The respondent's contention is that the petitioner has declined to grant him access to the children.  The children are abroad the respondent would like them to come to Kenya at his cost while the petitioner insists that the respondent  travels to access the children where they are.  At the time the application was filed the children were in Denmark, and due to be relocated to the United States of America where the petitioner was due to take up permanent residence.  The respondent is asking the court to order that he be allowed to access the children before they move to the United States of America.

The application was placed before me on 10th June 2013 under certificate of urgency.  I certified it urgent and directed that the same be served for inter partes hearing on 13th June 2013.  Come 13th June 2013, Mrs. Mbugua appeared for the petitioner and indicated to the court that her client was based at Denmark and she needed time to take instructions and if possible file an affidavit in reply.  As the parties indicated to me they would try to resolve the matter, I stood the application over to 18th June 2013 for the purpose of recording settlement.

By 18th June 2013, the parties had not reached settlement and the mention stated for that date was converted into a full hearing.  Counsel for both sides, Miss Kemunto and Mrs. Mbugua, addressed me on the application dated 7th June 2013.

I have taken note of the submissions made by counsel. I noted that the children in question are citizens of the United States of America and that at the time the application was being heard they were based in Denmark.  I have also noted from the record that the parties contracted marriage in Kenya and the same was dissolved by a decree of this court  dated 1st March 2007.  In that decree the parties were granted joint custody of the children of the dissolved marriage, with the mother having care and custody.  There was an order that the parties agree on the issue of access and if they failed to agree to involve a mediator.  It would appear that agreement on access has not been reached to date, neither has any progress been made on the appointment of a mediator to resolve the matter.

The circumstances have however changed.  The mother has moved out of the jurisdiction with the children.  It is my view, and I am in agreement with Mrs. Mbugua, that the applicant is better of pursuing the issue of access in the courts of the country where the children are now resident or of the country of their domicile.  Asking this court to issue orders whose enforcement it cannot supervise is to invite it to make orders in vain.

The decree by Dulu J. on the issue of access can only be followed up by further orders of this court if the children the subject of the decree are within the jurisdiction of the court.  It transpires that they are not.  I will disallow the application dated 7th June 2013 for the reasons that I have given above.  There shall be no orders as to costs.

DATED, SIGNED and DELIVERED at NAIROBI this 8th DAY OF November,  2013.

W.M. MUSYOKA

JUDGE