An (suing As The Mother and Next Friend of Adjj) v Jrj

3. In ruling delivered on 21st May 2025, the trial Court whilst referring to Section 90 of the Children Act and Article 169(a) of the Constitution upheld the preliminary objection and struck out the suit. 4. The appeal herein was canvassed via written submissions. Only the Appellant filed submissions. In her submissions the appellant frames the issues for determination asa. Whether the trial Court lacked jurisdiction to hear and determine the matter (Grounds 1,2,3 and 4) b. Whether the trial Court disregarded the applicable legal principles, the law and the evidence in making its determination? (Grounds 5 and 6) 5. It is submitted the Trial Court erred in determining that the Applicant and the respondent were outside of the jurisdiction of the Court. They are dual citizens and reside in both Kenya and Canada. It is further submitted that in any event the Preliminary Objection did not meet the legal threshold enunciated in the decision of the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 requiring that a preliminary objection be based on a pure point of law as reafirmed in the decision of Nitin Properties Ltd v Singh Kalsi & Anor [1995] eKLR 6. Reference is further made to the decision in Korea Nyamai v Neema Parcels Limited [2021] eKLR and its interpretation of the applicability of Section 12 and 15 of the Civil procedure Act. It is submitted further the Children Court has subject matter jurisdiction on matters relating to children and reference made to the decision in ZN (Suing as mother and next friend of eh minors) v FB KEHC 79 and MTKO v JMR (Civil Appeal E064 of 2023) KEHC 3681 and the decision in Republic v Senior Resident Magistrate Mombasa Ex Parte HL & Another [2016] eKLR 7. It is submitted that in the current case the Court had territorial jurisdiction and subject matter jurisdiction and Article 53 of the Constitution required that it prioritise the best interests of the child. It is submitted that the Court erred in not acknowledging that as a State party to Convention of the International recovery of Child Support and Other Forms of Family Maintenance the Court would have at its disposal a mechanism to enforce its judgment. The applicability of international instruments in Kenya is well settled and was well enunciated in the decision in Re the Matter of Zipporah Wambui Mathara [2010] eKLR It is submitted that in light of several decisions of the superior Court, the Court ought to have been bound by the doctrine of stare decisis and that the court erred in not considering the implication of striking out the plaint vis a vis the best interests of the Child. 8. The respondent was served but did not participate, it is assumed that he does not oppose the appeal, however I am obligated to consider the appeal on its merits. Analysis And Determination. 9. This is a first appeal. The duty of a first appellate Court was succinctly stated by Wendoh J in JWN v MN [2019] eKLR in the following words: It is settled law that the duty of the first appellate court is to re-evaluate the evidence tendered in the subordinate court, both on points of law and facts and come up with its findings and conclusions. 10. I have looked at the Plaint filed by the appellant. At paragraph 1 she states that she is resident in Kenya and Canada. The parties formalised their marriage in Kenya. the Child was born in Kenya. The order dissolving the marriage was issued by a Kenyan Court. The applicant subsequently filed a Summons https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1817/eng@2026-02-20 2

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dated 9th October 2024 seeking interim orders of maintenance against the respondent. The Preliminary Objection is stated to be raised against that application. 11. It seems that in prosecuting the preliminary objection both the parties and the Court went to treat it as a preliminary objection against the main suit. No prejudice was caused by this trajectory. 12. The issue for determination is a. Whether this Court should allow the appeal and vacate the orders of the trial court upholding the preliminary objection? b. Arising from (a) above what are the consequential orders? 13. I remind myself that in all matters touching the welfare of a child, the best interests of a child are the paramount consideration. This edict under Article 53 of Kenyan Constitution is not just a fine spin on the use of words but rather at the core of the duty of a Court when it sets out to make any determination touching on the welfare of the child. The provision is not a suggestion it is a mandatory requirement. 14. Nowhere in the impugned ruling does the Trial Court indicate that it considered what the best interests of the child. I have no doubt that if the Court had considered the best interests of the child, it would have for instance in considering whether or not it had jurisdiction not limited itself to Section 90 of the Children Act that provides for the designation of the Children Court but gone further to consider Article 91 which delineates the jurisdiction of the Children Court. 15. In any event a Preliminary Objection is argued on the assumption that all the facts pleaded by the other side are correct (See Sir Newbold J.A.’s judgment at page 701 in Mukisa Biscuit Manufacturing Company Ltd –V- West End Distributors Ltd (Supra) In the case at hand the location of the the residence of the plaintiff and the child was in dispute. The issue of whether or not the parties were within the jurisdiction of the Court was a contested fact that would need to be settled. 16. A consideration of the best interests of the child may have led to an outcome that would not chisel out an exit for the defendant that Section 12 and 15 of the Civil Procedure Act has not provided. 17. In this instance therefore there was an error in determining with finality that the appellant and child were not resident in Kenya, when from the pleadings it was evident that she was both resident in Kenya and Canada, thereby granting to the defendant a free pass to what was essentially a disputed matter. 18. Finally there is a plethora of decisions that have asserted the authority of the children Court to safeguard the welfare of the child’s best interests. 19. This was well captured in the seminal decision of Hon. Emukule J when he stated thus in Republic v Senior Resident Magistrate Mombasa ex parte HL & another [2016] eKLR The fundamental question here is the rights of the child. Under the Constitution of Kenya, and the relevant legislation, namely the Children Act (Cap 141, Laws of Kenya), which embodies and gives effect to the International Convention on the Rights of the Child, and the African Charter on the Rights of the Child, the Courts of Kenya have the jurisdiction to give effect to the rights of the child, irrespective of the origin of such child. It does not matter that child came from the howling sands and winds of the Sahara Desert, the depth of the Congo forests, the Miombo woodlands of Tanzania, the windswept Drakensberg mountains of the South of the continent, the steppes of outer Mongolia or the fringes of the world’s oceans and seas, the courts of Kenya will give shelter and succour to that child. Under our Constitution, the rights of the child are paramount. It would be unworthy of our Constitution if jurisdiction were denied to our courts. 20. For the foregoing reason. I will allow the appeal and order as follows https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1817/eng@2026-02-20 3

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a. The Order upholding the Preliminary Objection is set aside in its entirety. b. The suit is reinstated and will be placed before another Magistrate at the Chief Magistrate Children Court, Milimani Law Courts for hearing and determination c. Since the respondent did not participate in the appeal there shall be no order as to costs It is so ordered DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH FEBRUARY 2026. P.M NYAUNDI JUDGE In the presence of: Fardosa Court Assistant Ms. Nyaga holding breif for Mr. Muturi for Appellants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1817/eng@2026-02-20 4

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