1.This dispute regarding the custody and well-being of the five children between the appellant/respondent AS and the respondent/ applicant MM was in the Kadhi’s Court at Nairobi from 2017. Eventually, the appellant, being aggrieved by the ruling delivered on 18th December 2020, appealed to this court in a memorandum dated 4th February 2021 whose grounds were as follows:-1.The learned trial Deputy Chief Kadhi erred in law and exercised his discretion wrongly when he dismissed the appellant’s notice of motion dated 27th August 2020 without considering any or all of the appellant’s grounds which implicate the minor’s welfare and rights;2.The learned trial Deputy Chief Kadhi erred and misdirected himself in law and in fact when he failed to consider that the said application of 27th August 2020 by the appellants contained sufficient grounds warranting a review and varying of the ruling and orders of 5th April 2019 issued in the said Divorce Cause No. 159 of 2017;3.The learned trial Deputy Chief Kadhi erred and misdirected himself in law when he failed to consider that such a course would subject the minors to deplorable living conditions and therefore a breach of Article 53 of the constitution;4.The learned Deputy Chief Kadhi failed to exercise his discretion properly in considering the appellant’s application and ignored all applicable principles of law and precedent in similar cases;5.The learned Deputy Chief Kadhi erred in law and seriously misdirected himself in law and in fact he failed to look into the proper merits of the said application, hence arrived at a wrong conclusion;6.The learned Deputy Chief Kadhi (with respect) exercised his discretion wrongly in dismissing the appellant’s application dated 27th August 2020 yet the respondent had not contested the said motion and failed to provide contrary set of facts. He thereby (with respect) disregarded evidence and arrived at a decision that is not in the best interests of the minors;7.The learned Deputy Chief Kadhi erred in fact and in finding unfairly and dismissing the appellant’s application dated 27th August 2020 without any evidence by the respondent challenging the grounds and facts deponed to by the applicant. The learned Deputy Chief Kadhi thus expressed bias and in exercising his discretion, leaned to the respondent, arguing her case, and took up an imaginary position (with respect) never articulated by the respondent at all, to the detriment of the minors.a.This is unjust and a violation of the principle of fairness espoused in Article 10 (2) (b) of the constitution.b.No evidence was tendered by the respondent to prove even on a balance of probabilities that she and or the minors stood to be prejudiced in the granting of the appellant’s application dated 27th August 2020.”
2.With the appeal was a motion dated 4th February 2021 seeking stay and status quo order. On 24th June 2021 Justice M.A. Odero gave some orders on the application, and on 29th July 2021 Justice S.N. Mutuku gave further orders.
3.The present application is dated 16th December 2021 by the applicant who essentially seeks that the orders issued by this court on 24th June 2021 be set aside and/or vacated and that the orders of the Kadhi issued on 18th December 2020 be maintained. The application has been opposed.
4.In N.K. (suing through her mother and next friend V.A.) –v- P.K.W. eKLR, the learned Judge A.K. Ndungu had this to say:-
5.The Children Act has entrenched both constitutional and international provisions and principles that ensure that all matters relating to children are sensitively and expeditiously dealt with, and that the best interests of the children are given paramount consideration. The children courts do ensure that the children are protected from the sometimes selfish interests of their parents.
6.So that the children herein will finally benefit from their right to expeditious disposal of this dispute regarding their custody, care and maintenance, I direct that, instead of dealing with this interlocutory application, the appeal herein is admitted to hearing. I direct the Deputy Registrar to immediately call for the original file from the Kadhi’s Court so that there will be no need for the appellant to file and serve the records of appal. Within 7 days from today the appellant shall file and serve written submissions on the appeal. On service the respondent shall file and serve submissions within 7 days. The submissions by either side should address the question whether the Kadhi’s Court had the primary jurisdiction to hear and determine the dispute relating to the five children. The matter shall be mentioned on 28th October 2022 to give the judgment date.
7.Costs of the application shall abide the appeal.