M M M, M N & J K v J G M [2014] KEHC 8446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL APPEAL NO. 61 OF 2014

M M M...................................1ST APPELLANT/APPLICANT

M N.......................................2ND APPELLANT/APPLICANT

J K.........................................3RD APPELLANT/APPLICANT

VERSUS

J G M...................................................................RESPONDENT

RULING

1.                 This appeal was filed on 7th August 2014 to challenge the ruling and directions given by the Children’s Court at Milimani on 24th July 2014 over a 9 year-old girl, H.G. On that day, the Court granted interim custody of the child to the respondent and issued a warrant of arrest against the 1st appellant.   The parties are father and mother, respectively, of the chid.   The 2nd appellant and the 3rd appellant are the parents of the 1st appellant, and, therefore, the grandparents of the child.

2.                 This application was filed seeking the stay, setting side and or variation of the orders, or that a status quo be maintained in respect of the order.  It does appear that subsequent to the filing of the appeal there was an order that the appellant be sent to civil jail.  She seeks the order be stayed, set aside and or varied.  It does appear from the orders subject of the appeal that, while the main suit between the couple was on-going, on 5th January 2011 the 1st appellant was granted interim custody of the child.  On 24th July 2012 the parties were ordered to have holiday access to the child on 50:50% basis.  The 1st appellant did not comply with the order of access.  The court ordered stay of the order of interim custody and issued a warrant of arrest against the 1st appellant.  It would appear that the 1st appellant could not be traced for the execution of the orders, and she has failed to come to court.  This is what led to the orders subject of the appeal.

3.                 The 1st appellant’s case is that she is the mother of the child and therefore the more suitable parent to have custody of the child, who is a girl aged 9.  It is stated that the orders above were made without hearing the wishes of the child; that the orders were issued without  hearing the 1st appellant; that the child is school-going and the orders given would prejudice it; that since 2010 the 1st appellant has had custody of the child and maintained it without any assistance from the respondents; that the respondent had a history  of physically assaulting the child as was evidenced by the interview carried out in court on 20th April 2011; and that the 1st appellant was not aware that the Court was looking for.  The appellant denied that she had disobeyed any court order.

4.                 The respondent opposed the application and stated that the 1st appellant abandoned the child when it was hardly one year old and went to pursue university education.  For 6 years he stayed with the child.  On 22nd December 2010, however, the 1st appellant called to say she wanted to see the child.    She pretended that she wanted to buy the child Christmas gifts only to disappear with it.  That was what led to his filing the suit in the Children’s Court to seek legal custody, care and control of the child.  He denied that he had failed to maintain the child.  He stated that the child had been poisoned by the 1st appellant to say that she had been assaulted by him, but that was not true and the trial court had, despite the interview, granted him access.  He stated that he has a very close relationship with the child.   Further he stated that he has equal rights over the child.  Lastly, he stated that the 1st appellant had been served with process (as shown by the affidavit of service) but had not obeyed orders to allow him access the child.  The court had given her a period to comply with the orders but she had failed to abide, he said.

5.                 The affidavit of the 1st appellant says that on 20th February 2007, when the child was 1 year and 8 months the respondent visited her and pretended that he was going to buy the child sweets but disappeared with it.  She was unable to trace him and the child until December 2010.  It was following the court’s interview with the child that she was granted custody.  The child was born on 4th May 2005.

6.                 I have called for and perused the file at Children’s Court.  It is clear that the orders subject of the appeal followed a long period of non-compliance on the part of the 1st appellant.  The court appeared frustrated to the extent of issuing a warrant of arrest and staying the order of custody.  Further, the orders sought in the application are substantially the same orders sought in this application.  But more important, on 6th August 2014 the 1st appellant filed an application in the subordinate court seeking similar orders.  That application is pending.  The law is that anyone who, knowing of a court order, wilfully does something, or causes others to do something, to break the order or interfere with it, is liable to be committed for contempt (MUTITIKA  V- BAHARINI FARM LTD [1985]KLR 227).  The 1st appellant, when she felt aggrieved by the orders of 24th July 2014 or any previous orders, was obliged to go back to the court for stay, setting aside or variation of the same.  This issue whether or not she was in disobedience of orders is pending in the Children’s Court.

7.                 I am aware that in deciding any case where a child is concerned its best interests have to be considered, bearing in mind the matters under sections 76and83 of the Children Act (No. 8 of 2001).  It is also true that, prima facie, children of tender age should be with their mother, and it  is only in exceptional circumstances that such custody should be given to the father (D.K. V J.K.N, HC CIVIL APPEAL NO. 54 OF 2010 AT NAIROBI).

8.                I consider that the order of custody was an interim one.  The case before the subordinate court is on-going.  Custody had, again on interim basis, been given to the 1st appellant who, as per the record, became disobedient.  The record also shows that for a long time in the past the child was staying with the respondent.  In the peculiar circumstances of this case, I decline to grant the orders prayed in the motion dated 15th August 2014.  The motion is therefore dismissed with costs.  However, I order the Children’s Court to prioritise this case and finally determine the issue of the custody of the child.

DATED and DELIVERED at NAIROBI this 6th day of November, 2014.

A.O. MUCHELULE

JUDGE