C K v T K M [2016] KECA 102 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a child can be allowed to travel abroad in a custody dispute whenever it serves the child's best interest.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in entertaining and determining issues that were not pleaded, in particular the question of taking the child out of jurisdiction
- 2.Whether the High Court took into account irrelevant considerations and misapprehended the issues on custody
- 3.Whether the High Court erred in granting the respondent immediate custody of the child when she already had such custody
- 4.Whether the orders of the High Court were in the best interest of the child
Key legal issues
#Determination of unpleaded issues
The High Court did not err: custody was squarely before it and the removal of the child from jurisdiction was so intertwined with custody that separate pleadings were not required; nor did the appellant's counsel object to the informal application.
The Court accepted the general principle that parties are bound by their pleadings, but held the real question was whether the High Court in fact decided unpleaded issues. Custody was central to the appeal and both parties addressed it at length in written submissions. The question of taking the child out of jurisdiction was intertwined with custody, and evidence and argument were led without objection, satisfying the established exception to the pleading rule.
Removal of a child out of jurisdiction in custody disputes
There is no immutable rule that a child cannot be taken out of jurisdiction except in exceptional circumstances; the paramount consideration is the best interest of the child under Article 53(2) of the Constitution and sections 4(2) and (3) of the Children's Act.
The Court declined to follow the obiter dicta in KWK v JMW, noting they were made in an advocate's application to cease acting. Because the best interest of the child is paramount, the child's best interest may be served by allowing travel out of jurisdiction in ordinary, non-exceptional circumstances. Precedent is of limited assistance in such cases, which hinge on their peculiar facts; M v P illustrated a court permitting removal on a finding that the child would be returned.
Applicability of the Foreign Judgments (Reciprocal Enforcement) Act to custody matters
The Act is inapplicable to custody and guardianship disputes by virtue of section 3(3)(e), so the absence of reciprocity between Kenya and Germany was irrelevant.
The appellant argued that the absence of reciprocal arrangements left him without remedy if the respondent took the child to Germany. The Court found the argument misconceived because the Act expressly excludes judgments or orders in proceedings connected with the custody or guardianship of children, so reciprocity, even if it existed, would be immaterial. The High Court had also made its own determination, distinguishing AOG v SAG.
Order granting custody when the party already had actual custody
Nothing turns on the High Court ordering the respondent to assume actual custody when the appellant had already ceded it; the appellant had not shown that the court was aware of that fact.
The appellant had all along complained of being denied access and had filed several applications for custody; there was no evidence that the court knew the respondent already had actual custody. The Court saw no reason why a court would consciously issue an order in vain, and held that in any event nothing turned on that order. This ground therefore failed alongside the others.
Legal principles established
#- Parties are bound by their pleadings, but where evidence is led and an unpleaded issue appears from the course of trial to have been left to the court, the court may validly determine it; an issue so intertwined with a pleaded issue need not be separately pleaded.
- In all matters concerning a child, the best interest of the child is of paramount importance, and it is conceivable that the child's best interest may be served by allowing the child to travel out of jurisdiction without any exceptional circumstances being shown.
- On a second appeal, the Court considers only matters of law and will not disturb concurrent findings of fact unless no reasonable tribunal could have reached those conclusions.
- The Foreign Judgments (Reciprocal Enforcement) Act does not apply to judgments or orders in proceedings concerning the custody or guardianship of children.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear its own costs, this being a family dispute
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCA No. 1 of 2014
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Constitution and the Civil Procedure Act; the Court expressly confined itself to matters of law as a second appeal
Relief refused
#The appellant's prayer that the appeal be allowed and the High Court's custody orders set aside
The first appellate court attached due primacy to the interest of the child and there was no basis for interference
Costs
Each party shall bear its own costs, this being a family dispute
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where evidence is led and it appears from the course followed at trial that an unpleaded issue has been left to the court to decide, the trial court may validly determine the unpleaded issue.
it is conceivable that there may be situations, without being in any way exceptional, where the best interest of the child is served by allowing him to travel out of jurisdiction.
In the event, we find no merit in the appeal, and the same is hereby dismissed. This being a family dispute, each party shall bear its own costs. It is so ordered.
Issues in the judgment
#The judgment refers to the same Court of Appeal authority as both 'AOG v. SAJ' and 'AOG v. SAG' in different passages; treated as one case.
The citation for Odd Jobs v. Mubea is incomplete in the judgment ('[1970] 476').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C K v T K M [2016] KECA 102 (KLR)", Case Analysis (2016). Civil Appeal No. 41 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/102/eng@2016-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.