Sbk v Family

petition is brought both in his own capacity and on behalf of the three minors, whom he characterizes as consequential victims of the Respondent’s actions. 5. He sets out the factual matrix of the relationship, asserting an undisputed subsisting marriage under customary law, joint custody of three minors and joint ownership and occupation of the matrimonial home. He attributes the dispute to the Respondent’s alleged attempts to unilaterally acquire exclusive ownership of the matrimonial property, supported by references to emails and prior affidavits contained in the annexures. 6. In his supplementary affidavit, the Applicant reiterates allegations of procedural impropriety, contending that the Respondent was duly served yet failed to participate and that her subsequent filings introduce irregular and inadmissible evidence. He further characterizes the Respondent’s conduct as dishonest and asserts that the appeal remains undefended. 7. The application is opposed vide affidavit sworn by Maureen Khambira on 23rd October, 2025. She avers inter alia that the appeal lacks merit and urges this court to uphold the decision of the Chief Magistrate delivered on 6th October, 2023, which dismissed the Appellant’s counterclaim and sustained the protection orders issued in July, 2022. 8. She asserts that the Appellant was duly aware of the lower court proceedings and that his claim of nonservice is untrue. Further, she contends that children’s court orders presently vest her with custody of the three minors, with the Appellant’s access limited to specified weekends and that any orders granting him unrestricted access to the matrimonial home would directly conflict with those subsisting orders and prejudice the welfare of the minors. 9. She further avers that the dispute over access to the matrimonial home has been overtaken by events, as there are pending proceedings on divorce and division of matrimonial property before competent courts. In her view, the present appeal improperly seeks to re-litigate issues that are now subject to those parallel proceedings, thereby rendering the appeal redundant and an abuse of process. 10. She also maintains that the Appellant’s conduct poses a real risk of violence, relying on prior incidents of alleged assault and asserting that reinstatement of access would expose her to further harm. 11. In support of the application, the Applicant has filed written submissions dated 17th June, 2025. 12. The Respondent has not filed written submissions Analysis And Determination 13. I have carefully considered the applications, the response thereto and the rival submissions and the main issue for determination is whether the petition raises a substantial question of law warranting certification under Article 165 (4) of the Constitution for empanelment of a multi-judge bench. 14. The guiding principles are well established for setting such a bench. 15. In Koimburi v Attorney General & 3 others [2025] KEHC 12736 (KLR) the court pronounced itself as follows: “… 7. This court has considered the issues raised by the Applicant both in this application and the main amended petition. While it is true that the issues raised are novel and touches on fundamental rights of an individual and whether there are infringements over the same as envisaged under Article 165(3)(b) of the Constitution, this court finds that the threshold under Article 165(4) of the Constitution has not been met for the following reasons: - a. It is only the 1st Respondent who has responded to the petition vide grounds of opposition dated 7/2/25. There is no response to the amended petition so far as the 1st Respondent has not indicated whether it will file further response to the amended petition or it will rely on the filed grounds. In the absence of the substantive responses https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4930/eng@2026-04-16 2

page 2 of 4

by all the named parties it would be speculative to find that issues raised have met the threshold of Article 165(4) of the Constitution. b. Secondly and more importantly it is not practical to refer any matter touching on fundamental right to the Chief Justice to empanel a bench of 3 or more uneven number of judges. The judiciary’s resources are quite limited. It is not practical or desirable to refer any matter touching on Article 165(4) of the Constitution. 8. In the case of Harrison Kinyanjui –vsAttorney General & Another (20123) eKLR, Majanja J had the following observations with regard to empanelment of a bench of uneven number of judges to adjudicate over a matter. “The meaning of “substantial question” must take into account the provision of the Constitution as a whole and the need to dispense justice without delay particularly given specific situation. In other words, each case must be considered on its merit by the judge certifying the matter. It must also be remembered that each High Court judge has authority under Article 165 of the Constitution to determine any matter that is within the jurisdiction of the High Court. Furthermore, and notwithstanding the provisions of Article 165(4) the decision of a 3-judge bench is of equal force to that if a single judge exercising the same jurisdiction. A single judge deciding a matter is not obligated to follow a decision of the court delivered by 3 judges”. 9. The provisions of Article 165(3) of the Constitution provides as follows:“Subject to clause (5), the High Court shall have— (a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144; (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of— (i) the question whether any law is inconsistent with or in contravention of this Constitution; (ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under Article 191”. 10. The Constitution therefore grants this court even sitting as a single judge the mandate and jurisdiction to determine matters touching the above stipulated rights. 11. While I agree that the issues raised by the petitioner in his amended petition raises substantial questions of law and interesting ones too, I find that the same can be adjudicated by a single judge because after all any party that maybe aggrieved by any determination has liberty to move to the Court of Appeal that is presided over by 3 judges…” 16. While the Applicant has framed the dispute as one involving alleged violations of fundamental rights arising from restriction orders under the Protection Against Domestic Violence Act, the material placed before the court reveals that the dispute is predominantly grounded in a matrimonial and child custody conflict, already subjected to adjudication in competent courts. 17. The constitutional questions raised, though not trivial, are largely intertwined with factual controversies and the exercise of judicial discretion in subordinate courts, rather than presenting novel or complex points of constitutional interpretation of general public importance. 18. Further, the evidence on record demonstrates that there exist subsisting orders from the Children’s Court on custody and access, as well as pending proceedings on divorce and division of matrimonial property. These parallel processes indicate that the issues raised are not only fact-specific but also actively under determination within established legal frameworks. 19. The annexures relied upon by both parties, while extensive, do not elevate the dispute into one of constitutional magnitude rather, they disclose contested factual assertions, untested communications and selective documentation whose probative value remains limited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4930/eng@2026-04-16 3

page 3 of 4

20. In contrast, the judicial decisions annexed by the Respondent carry greater evidentiary weight, reinforcing the principle that the best interests of the child are paramount and must guide any determination. 21. Accordingly, the application risks inviting this court to re-litigate matters already within the jurisdiction of other courts, contrary to the doctrines of judicial hierarchy and avoidance of multiplicity of proceedings. 22. In the circumstances, and guided by persuasive authority above the threshold for certification under Article 165 (4) has not been met. The issues raised, though framed in constitutional language, do not disclose exceptional complexity, novelty or public importance sufficient to warrant departure from the general rule that a single judge of the high court is competent to determine constitutional questions. 23. I, therefore, in the premises find that the application dated 31st October, 2023 lacks merit and that the matter shall proceed before a single judge for hearing and determination on its merits. 24. The same is otherwise dismissed with no order as to costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 16TH DAY OF APRIL 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4930/eng@2026-04-16 4

page 4 of 4