P C N v C K K [2014] KEHC 6698 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KAKAMEGA

Civil Cause No:  27  Of  2013

In The Matter Of The Estate Of:-

A M K   ......................Children

A S K

(Suing Through Their Next Friend

Guardian Ad Litem & Mother)

P C N...............................................Appellant

Versus

C K K...........................................Respondent

R U L I N G

The application dated 14/3/2013 seeks to set aside the orders of the subordinate court issued on 16/2/2013.  The applicant is seeking custody of the two minors.  The application is supported by the applicant’s affidavit sworn on 10th April, 2013. Counsel for both parties relied on the respective pleadings.

The background to this matter is that the applicant filed a suit against the respondent before the children’s court at Webuye.  The applicant made an application before the Webuye court dated 7/1/2013 seeking interim orders of custody of the children.  The court made its ruling on 15/2/2013 whereby the application was disallowed.  This led to the filing of the current appeal.  In essence the suit before the trial court has not been heard on merit.

I have gone through the pleadings herein and the ruling of the trial magistrate.  Since the appeal seeks to set aside the decision of the court that disallowed an application for custody, I do find that the application at this stage would be tantamount to allowing the appeal.  This is an appeal against a ruling of the subordinate court.  The ideal situation would be to have the appeal heard and final orders granted.  The proceedings have been typed and the appeal can be heard.

I do find that the application cannot be granted at this moment.  The application lacks merit and is dismissed with no orders as to costs.

Dated, signed and Delivered at Kakamega this 26th day of February 2014.

SAID  J.  CHITEMBWE

JUDGE