L.W.K v B.P.K [2015] KEHC 8047 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI  LAW COURTS

FAMILY DIVISION

MISCELLANEOUS APPLICATION NO. 158 OF 2015

IN THE MATTER OF:   FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT )ACT

AND

IN THE MATTER OF:   AN APPLICATION FOR REGISTRATION OF AN ORDER OF THE FAMILY COURT OF ENGLAND AND WALES OF 8TH JANUARY 2015 OBTAINED IN CASE NUMBER OX14P000454

AND

IN THE MATTER OF : R.M.K (A MINOR)

AND

IN THE MATTER OF: ARTICLE 53 OF THE CONSTITUTION OF KENYA  2010

AND

IN THE MATTER OF: SECTIONS 4,22 AND 113 OF THE CHILDREN ACT 2001

BETWEEN

L.W.K…………………………………………..APPLICANT

AND

B.P.K…………………………………….…..RESPONDENT

RULING

The application before this court has been brought under rules 2 and 3 of the Foreign Judgments ( Reciprocal Enforcement ) Rules , Section 5 of the Foreign Judgments ( Reciprocal Enforcement ) Act Cap. 43 Laws of Kenya , the Inherent Power of the Court.  The applicant is seeking the following orders that;

The order given in Case Number OX14P00245 by the Family Court at Oxford on the 8th day of January 2015 be registered pursuant to the Foreign Judgment ( Reciprocal Enforcement) Act.

The applicant be permitted to remove R.M.K (the minor) temporarily from England and Wales for the purposes of a holiday in Kenya between 18th December 2015 and December 27th  2015  both dates inclusive, after which the minor shall return and live in England and Wales on or before the 27th of December 2015.

There be no order as to costs.

The application is supported by the affidavit of L.W. K dated the 21st of October 2015. She deposes that she is the biological mother of R.M.K. (a minor) and that the Respondent is the biological father and all of them are residents of England and Wales. That there are proceedings filed in the Family Court at Oxford in England and Wales being Case Number OX14P00245 involving the Respondent and herself. That one of the issues for determination in the said case is which parent will retain custody of R.M.K (a minor). That in the course of the proceedings she made an application to remove the minor from England and Wales for two weeks holiday in Kenya. That by Child Arrangement Orders issued on the 8th January 2015 the Court directed the temporary removal of the minor from England and Wales to Kenya for holiday. The terms of the orders issued by the court are as follows:

The Respondent herein was permitted to remove the minor temporarily from England and Wales for purposes of holiday in Egypt between 3rd April, 2015 and 11th April 2015 both dates inclusive.

The Respondent herein was permitted to remove the minor temporarily from England and Wales for purposes of a holiday in Spain between 13th August 2015 and 28th August 2015 both dates inclusive.

The Respondent to remove the minor temporarily from England and Wales for purposes of holiday in Kenya between 18th December 2015 to 27th December 2015 both dates inclusive.

That the removal of the minor from England and Wales was subject to the condition that she obtains an order from the Kenyan Family Court reflecting the terms of the said order. She avers that it was not possible to obtain the order by the 18th September 2015 as the preparation of the paper work took a lengthy time, thus she seeks the orders as prayed.

I have seen the order the applicant refers to made in the Family Court at Oxford on the 8th of January 2015 in relation to R.M.K.  The  Family Court at Oxford  has specifically   permitted the mother to remove R.M.K temporarily from England and Wales for purposes of a holiday in Kenya between 18. 12. 2015 and 27. 12. 2015 inclusive provided that on or before the 18. 09. 2015 she obtained at her own expense an order from the Kenyan Family Court reflecting the terms of the said order and the child arrangements for Rosh, in particular that he shall live in England and Wales and be returned to England and Wales from Kenya at the conclusion of the holiday on or before the 27th of December 2015.

The applicant has cited a matter Misc. Application No. 109 of 2013 that was dealt with by Justice Musyoka where a similar application was made.  I note that the applicant has approached this Court under the Foreign Judgment (Reciprocal Enforcement) Act Cap. 43 of the Laws of Kenya, which makes provision for enforcement of judgments given by courts in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya. I note that the orders that are the subject of this application were made by the Family Court at Oxford in England. The United Kingdom is a reciprocal country under the Schedule to the Foreign Judgment (Reciprocal Enforcement) Act.

The applicant is the mother of the minor and she has attached the relevant order from the Family Court at Oxford authorizing her to remove the minor from England and Wales for the period indicated. She has explained why she could not make this application earlier and why she could not obtain the order by the 18th of September 2015. She has indicated that she intends to make an application to the Family Court at Oxford with a view of extending the time within which an order of this court should be presented. I have seen the annexed certificate dated the 12th of August 2015  as required by section 5 (4) of the Kenyan Foreign (Reciprocal Enforcement) Act. I also note that the Respondent did participate in the proceedings in the Family Court at Oxford through his counsel Damian Garrido.

This court is satisfied that the applicant is entitled to  the orders sought the application is merited and is allowed as prayed. The order given in Case Number OX14P00245 by the Family Court at Oxford on the 8th of January 2015 shall be registered pursuant to the Foreign Judgment (Reciprocal Enforcement) Act. The applicant is permitted to remove R.M.K (the minor) temporarily from England and Wales for the purposes of a holiday in Kenya between the 18th December 2015 and 27th December 2015 both dates inclusive, after which the minor shall return and live in England and Wales on or before 27th December 2015. No order as to costs. It is so ordered.

Dated signed and delivered this  11th day of  December 2015.

R.E.OUGO

JUDGE

In the presence of:

…………………………………………………………………For the Applicant

…………………………………………………….…………..……..Court Clerk