1.The applicant EMK and the respondent RNW had a marriage relationship which resulted into the birth of BN on October 27, 2018. The custody, access and maintenance of this child is the subject of a raging dispute between the parties before the Children Court at Nairobi in Cause No. 1677 of 2019. When the instant petition dated June 22, 2022 was filed in the Constitutional and Human Rights Division in Petition No. E262 of 2022, and later transferred to this court, it would appear that the applicant was running away from possible punishment by the Children Court. She had on January 20, 2022 been found guilty of contempt of the orders of access issued by the court, and asked for purge before being granted audience. On June 8, 2022 the respondent had taken out a notice to show cause why the applicant should not be committed to civil jail. There has been no appeal against any of the orders by the Children Court, including the judgment that was delivered against the applicant on April 30, 2020. It is quite clear that all these orders have aggrieved the applicant, and this is the reason that she has approached this court by way of this petition.
2.In the meantime, the applicant reported to the police that the respondent had sexually assaulted the child. The police are investigating the report. Her case is that under those circumstances the respondent should not access the child.
3.The present petition seeks the following orders:-
4.The petition and application were opposed by the respondent who, among other things, questioned the jurisdiction of this court to entertain this dispute while the Children Court was seized of the same and when this court’s appellate jurisdiction had not been invoked.
5.I note that in the notice of motion filed with the petition, there was a prayer that the OCS Pangani Police Station should be directed to complete the investigations concerning the complaint about the minor’s alleged sexual assault in the hands of the respondent. One, the police are an independent service whose work cannot be directed by the court. Article 245(4) of the Constitution provides as follows:-Secondly, the Inspector General of Police or the OCS Pangani Police station were not made parties to these proceedings for them to be heard before any orders are given against them.
6.The Children Act, 2001 has since been amended. The proceedings were commenced under the old Act whose section 73 gave civil and criminal jurisdiction over all matters relating to Children to the Children Court. As was submitted by the counsel for the respondent, this court does not have original jurisdiction to entertain matters relating to children. The High Court has only appellate jurisdiction as provided under section 80 of the Act. Such appellate jurisdiction was not invoked before this court. The dispute over the minor relating to its custody, care, maintenance and sexual assault are still going on in the Children Court.
7.I am aware of the powers of this court under Article 165(3) of the Constitution, but I am also alive to the general restraint attached to the exercise of this jurisdiction where the Children Act has provided to the Children Court sufficient and adequate mechanism to deal with the questions raised in this petition over the minor. The Children Court should be given the necessary space to exhaustively deal with the questions, and the party aggrieved having the liberty to challenge the orders on appeal to this court. I notice that prayer 9 of the petition seeks the setting aside, varying and/or review of the decree of September 17, 2021 and order of January 20, 2022 by the Children Court. The basis for the request is that there is new and important matter or evidence that was not available at the time the orders were made. The power to review an order o decree on account of new and important matter or evidence that was not available at the time of the order or decree is available to the Children Court. Such application and evidence should be placed before that Court.
8.Lastly, this petition is not a challenge on the manner the Children Court is carrying out the proceedings relating to the parties and/or the minor. If that is true, then it would be an abuse of the court for the applicant to have the same dispute and the same issues being litigated both in the Children Court and this court.
9.In conclusion, for want of jurisdiction, I strike out with costs the petition and notice of motion.