Lnn v Ecm

process. He explains that he filed an earlier application on 9th May 2025 for review of the judgment of 31st March 2022, which granted custody to the Applicant. He states that the Applicant has neglected the minor by failing to ensure school attendance despite the fact that he pays his paying school fees. He claims that the Applicant suffers from depression which undermines her parenting capacity, that she physically assaults the minor, and lives in deplorable conditions that expose the child to an unhealthy environment. He further states that the Applicant has refused to comply with a consent order recorded on 29th May 2025 granting him actual custody of the minor, and has instead hidden the child thereby violating his parental rights. 5. The Respondent avers that the Applicant has neglected to take the minor to school thus prompting him to report the matter to Syokimau Police Station and the Children’s Officer at Athi-River. He emphasizes that the order granting him custody was a consent order, not a judicial exercise of discretion, and therefore cannot be appealed unless fraud, coercion, misrepresentation, or other exceptional circumstances are proved which grounds the Applicant has not demonstrated. He argues that the claim that the trial court lacked jurisdiction is misguided as it should have been raised before the lower court. He urges this Court to order the Applicant to comply with the custody order of 29th May 2025 so as to ensure that the minor attends school pending appeal, and direct the Children’s Officer in Mavoko to provide a detailed report on the minor’s welfare and living conditions. 6. The application was canvassed by way of written submissions which I have considered. 7. The Applicant submitted that the lower court erred in removing custody of the minor from her without justification, particularly without requiring or considering a Children’s Officer’s report, which is crucial in custody matters. She contended that the magistrate misdirected himself by reviewing the earlier judgment of 31st March 2022 that had granted her custody, despite lacking jurisdiction in view of the fact that judgment had been delivered. 8. It was submitted that the Respondent’s reliance on the consent is misplaced since the Applicant neither gave authority to her previous advocates to enter into such consent nor consented herself thus making the order a product of misrepresentation and therefore fraudulent. The Applicant annexed a supporting affidavit and a letter from her former advocate to show that she did not approve or authorize the consent. 9. The Applicant further argued that since the trial court lacked the jurisdiction to review the final judgment, any orders issued by the said court are null and void. Citing constitutional principles, she maintained that the best interests of the child, who is six years old, autistic, and in need of a mother’s love and close maternal care, were not considered by the court. She invoked Article 53(2) of the Constitution, which states that the best interests of the child are paramount in all decisions concerning minors. 10. The Applicant submitted that no form of consent or legal technicality can override this constitutional threshold. She emphasized that the trial court failed to consider the welfare needs of the child, who requires maternal care and protection, while the Respondent retains unlimited visitation rights. She argued that the lack of consultation and absence of factual reports renders the order detrimental to the child’s wellbeing. 11. The Respondent, on the other hand, cited decisions in several cases including Brooke Bond Liebig Ltd vs. Mallya (1975) E.A. 266 and Kenya Commercial Bank Ltd vs. Specialised Engineering Co. Ltd (1982 KLR 485 for the argument that consent judgments are binding and can only be set aside if obtained through fraud, misrepresentation, collusion, or without sufficient material facts. The Respondent noted that the Appellant was represented by Nyamwange & Co. Advocates at the time the consent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19369/eng@2025-10-16 2

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was recorded and cannot therefore turn around and disown or invalidate the actions of her advocates by merely changing legal representation. 12. The Respondent emphasized that the Appellant has neither demonstrated fraud nor misrepresentation nor cited any prejudice suffered by the minor since the issuance of the order. He observed that the Appellant has deliberately disobeyed the consent order, refused to comply, and kept the child away from school, which amounts to contempt of court. 13. It was submitted that questions of jurisdiction or the trial court’s authority post-judgment should be determined by that court itself. It was the Respondent’s case that the present application and appeal are incompetent, frivolous, and an abuse of the court process. B. Issues for Determination 14. From the pleadings and submissions, I find that the following issues arise for determination: 1. Whether the Applicant has met the threshold set for the granting of stay of execution pending appeal under Order 42 rule 6(2) Civil Procedure Rules. 2. Whether a prima facie case has been laid for this Court to set aside or stay the operation of the consent order of 29th May 2025. 3. Whether the Court should transfer Children’s Case No. E17 of 2021 to the Children’s Court at Milimani. 4. What interim arrangements will safeguard the best interests of the child pending the appeal. 5. Costs. C. Applicable Principles and Authorities 15. Order 42 rule 6(2) of the Civil Procedure Rules (CPR) requires an Applicant for orders for stay of execution pending appeal to demonstrate that: i. the application was made without unreasonable delay; ii. she will suffer substantial loss unless stay is granted; and iii. she is willing to give security where appropriate. (See Butt vs. Rent Restriction Tribunal [1982] KLR 417, Halai & Another vs. Thornton & Turpin [1990] KLR 365, and RWW vs. EKW [2019] eKLR. An order for stay preserves the subject matter and the court is required to balance the rights of both parties. 16. On Setting aside a consent, it must be appreciated that a consent judgment or order is binding unless set aside on grounds that would vitiate a contract, to wit, fraud, collusion, misrepresentation, mistake, ignorance of material facts, or lack of authority. (See Brooke Bond Liebig Ltd vs. Mallya [1975] EA 266, Kenya Commercial Bank Ltd vs. Specialized Engineering Co. Ltd [1982] KLR 485, Flora N. Wasike vs. Destimo Wamboko [1988] KLR 429, and Hirani vs. Kassam [1952] 19 EACA 131). 17. It is trite that an advocate has implied general authority to compromise a suit on behalf of a client unless such authority is expressly limited and the limitation brought to the notice of the other party. (See KCB vs. Specialized Engineering (supra). 18. It is also trite that the court that passed a decree may review it under Order 45 CPR upon the prescribed grounds and without unreasonable delay. In this regard, I find that the issue of a court being functus officio does not preclude it from exercising its statutory power of review. This is the position that was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19369/eng@2025-10-16 3

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taken in National Bank of Kenya vs. Ndungu Njau [1997] eKLR and Telkom Kenya Ltd vs. John Ochanda [2014] eKLR where it was held that: “ A review may be granted wherever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.” 19. Article 53(2) of the Constitution requires that a child’s best interests be of paramount consideration in every matter concerning the child. The Children Act (2022) restates this as a guiding principle for all courts exercising jurisdiction in children matters. 20. Turning to transfer of suits, Section 18 of the Civil Procedure Act stipulates that the High Court may, at any stage of the proceedings, withdraw and transfer a suit in order to meet the ends of justice and convenience of parties and witnesses. Transfer of suits is however not granted for the mere convenience of counsel and must be justified by cogent factors. (See David Kabungu v Zikarenga & 4 Others (HCCC No. 36 of 1995). D. Analysis and Determination Stay pending appeal 21. In the present case, the impugned order was made on 29th/30th May 2025 and the Motion filed on 10th June 2025. I find that there was no delay in the filing of the Application. 22. On substantial loss, I note that the dispute concerns actual custody of a minor. I find that altering the subject child’s living arrangements pending appeal has the potential of disrupting the child’s stability, therapy, schooling, and may prejudice either parent–child relationship if the appeal succeeds. Courts have repeatedly recognized that in children matters, preserving the substratum and minimizing disruption are paramount. I am satisfied the Applicant has shown potential substantial loss if the status quo ante the consent is not preserved. 23. As concerns security for the due performance of the decree, I note that the decree is not monetary in nature and find that this being a children’s matter, the court may waive or tailor security. I am therefore satisfied the requirement for security is inapplicable in this case. Whether a prima facie case is made to set aside the consent order 24. The Respondent maintained the impugned order of 29/30 May 2025 was a proper consent, while the Applicant asserted lack of authority and misrepresentation by the counsel who acted for her at the time of the consent. The Applicant exhibited a letter from the former advocates disowning any instructions to cede custody. 25. Looking at the parties’ respective affidavits, it is clear that they raise competing positions that give rise to a bona fide controversy on authority and circumstances under which the consent was recorded. In my humble view, such a contest cannot be conclusively determined at this interlocutory stage based on affidavit evidence alone. 26. My above finding notwithstanding and because the impugned order materially altered custody, and given the constitutional duty to prioritize the child’s best interests, I am of the view that a temporary stay of the consent’s operation pending appeal is justified so that the contested issue can be investigated https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19369/eng@2025-10-16 4

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on the merits, either within this appeal or, if parties be so advised, by an application in the trial court that recorded the consent. Transfer to Milimani Court 27. The Applicant urged transfer on the basis that both parties and the child reside in Nairobi. The Respondent however opposed this prayer. 28. While section 18 CPA grants this court broad power to transfer cases, the Court must at the same time be slow to transfer a case where an appeal is already filed in this station and where the record is needed for the appellate process. Moreover, the record shows no sworn material on witness convenience, risk of bias, or other compelling factors beyond residence. 29. I find that in the present circumstances, the overriding priority is to stabilize the child’s care and obtain a professional welfare assessment to guide the appellate court. A transfer at this interlocutory stage may fragment the dispute and delay the appeal. The prayer for transfer is therefore declined for now, but with a rider that the Applicant is at liberty to renew it later by a focused application under section 18 CPA, should circumstances demand, after the welfare report is placed on record. Interim arrangements in the child’s best interests 30. The Applicant raised allegations of the child’s non-attendance at school, special needs, and adverse living conditions. I find that this court cannot, on bare affidavits, adopt either narrative as the factual position. My view is that the prudent course is to preserve stability, ensure schooling, and obtain expert input before any precipitate orders can be made. 31. In line with the provisions of Article 53(2) of the Constitution and the Children Act’s guiding principles, I make the following orders: i. Stay of the operation of the consent order of 29/30 May 2025 pending appeal and revert on an interim basis to the pre-consent position under the judgment of 31st March 2022, subject to safeguards below; ii. Direct the County Children’s Office (Nairobi/Mavoko, as appropriate) to file, within 21 days from the date of this ruling, a social inquiry/welfare report addressing the child’s residence, schooling, special needs, therapy (if any), and each party’s living arrangements and capacity; iii. Require the minor to resume/continue school immediately, with both parents ensuring attendance; the Respondent to continue meeting school fees as averred, and the Applicant to facilitate attendance and release of the minor for school and structured access; iv. Grant the Respondent defined access pending appeal—alternate weekends from Friday 4:00 pm to Sunday 5:00 pm, mid-week access once a week 4:00–6:00 pm, and half of school holidays, or such other schedule as the Children’s Officer may, on interim assessment, recommend. Handover to be at the child’s school (on school days) or a Children’s Office designated point (otherwise); v. Restrain both parties from removing the child from the jurisdiction, changing school, or discussing the litigation with the child, without leave of this Court. Disposition 32. In the end, the Notice of Motion dated 10th June 2025 succeeds in part and I make final orders as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19369/eng@2025-10-16 5

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33. a. A stay of execution of the orders made on 29/30 May 2025 in Children’s Case No. E17 of 2021 is hereby granted pending the hearing and determination of this appeal. b. For the pendency of the appeal, the parties shall revert to the position obtaining under the judgment of 31st March 2022, subject to the interim access and safeguard directives in paragraph 20 above. c. The prayer to set aside the consent order is held in abeyance; the question whether the consent was vitiated by lack of authority, fraud, misrepresentation or other recognized ground shall be determined on the merits at the hearing of the appeal (or by proper application in the trial court that recorded it). d. The prayer to transfer Children’s Case No. E17 of 2021 to the Children’s Court at Milimani is declined at this stage, with liberty to apply after the welfare report is filed should transfer become necessary for the ends of justice. e. The Director/County Children’s Services (Nairobi/Mavoko) shall file the welfare report within 21 days; the parties shall co-operate fully. f. To expedite the appeal, the Record of Appeal and submissions shall be filed and exchanged within strict timelines to be given by the Deputy Registrar on mention for directions. g. Costs of the Motion shall be in the appeal. h. Mention before the Deputy Registrar on 6th November 2025. Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 16TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19369/eng@2025-10-16 6

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