FAM v HSS (Civil Appeal 129 of 2007) [2008] KECA 316 (KLR) (25 April 2008) (Judgment)
- Court
- Court of Appeal
- Case number
- 316
- Citation
- [2008] KECA 316 (KLR)
- Decided
- 25 April 2008
The High Court had no jurisdiction to enforce the orders of the Children's Court through an application for committal for contempt. The order for the return of the child was an independent and severable application.
Facts
The case involved a dispute over the custody and maintenance of a child, with the High Court ordering the mother to return the child to Kenya while her appeal was pending.
Issues
- procedure for committal of a contemnor
- jurisdiction of the High Court to enforce orders of the Children's Court
- severability of applications
- order for return of a child without hearing all parties
Reasoning
The court held that the High Court, sitting as an appellate court, had no jurisdiction to enforce the orders of the subordinate court through an application for committal for contempt. It had no jurisdiction to entertain both the application for leave and the application for committal for contempt.
Outcome
The appeal was partially allowed, and the order for the return of the child to Kenya was dismissed. The appellant's notice of motion for discharge of the ex parte order for return of the child was ordered to be heard on priority basis.
Orders
- Order for the return of the child SS to Kenya dismissed
- Order for the return of the child to Kenya to be enforced after hearing the appellant's notice of motion for discharge of the ex parte order
Remedies
- Hearing of the appellant's notice of motion for discharge of the ex parte order for return of the child on priority basis
Authorities cited
Cases cited (3)
- Gordon v Gordon [1904-1907] All ER Rep 702
- XLtd v Morgan Grampian (Publishers) Ltd [1990] 2 All ER 1
- Rose Detho v Ratila Automobiles Limited and Six Others - Civil Application No Nai 304 of 2006 - majority ruling dated May 25, 2007 (unreported)
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