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KLR WEEKLY e-NEWSLETTER |
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| Issue 083 | Newsletter Archive | Friday 27th November 2009 | |
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WOMAN FAILS TO GAIN EQUAL VISITATION RIGHTS, 14 YEAR OLD SON By Njeri Githang’a P.K.A vs. M.S.A [2009] eKLR (www.kenyalaw.org) “In an application for stay under rule 5(2)(b) of the Court of appeal Rules, the applicant has to show that he/she has an arguable appeal and secondly that refusal to grant an order of stay will render the appeal, if it eventually succeeds, nugatory.” Court of Appeal has declined to issue an order to a woman seeking equal access as her former husband to their 14 year old son. In a unanimous ruling, Judges of Appeal Samuel Bosire and Daniel Aganyanya held that granting of the stay orders would have amounted to varying the order to which the court had no jurisdiction at that stage. However in a dissenting judgement Judge Nyamu was of the opinion that both parties should have access because should the applicant ultimately succeed in the intended appeal her right to parental care would have been lost, never to be recovered again. The High Court had July 1 this year granted sole custody of the child to M.S.A (the husband and respondent) and visitation rights to the wife for two hours on Wednesdays and Fridays. The court had also on July 3rd, allowed a petition to dissolve their marriage and dismissed the applicant’s cross-petition. P.K.A, the wife and applicant in this case aggrieved by the first judgment sought the Court of Appeal for orders to stay the High Court’s decision pending the hearing and final determination of the intended appeal and to be allowed to enjoy equal access to the child. Ahmed Nasir, counsel for the applicant complained about the short visitation rights accorded to the applicant. He further submitted that in the intended appeal the applicant shall contend that the superior court did take the evidence of a child of tender years in a manner contrary to law and in particular contrary to the rules of natural justice. He pointed out that in the appeal he intended to highlight situations in which the High Court made findings not based on evidence to demonstrate bias in favour of the respondent. He cited favour of the respondent on the basis of his superior financial position and inclusion of the nationality and alleged criminal proceedings against the applicant. He concluded his submissions by stating that all in all the limited access given to the applicant was not in the interest of the child and that the revelation in the judgment that the court felt bound by the lower court’s order on the right of access was highly contentious. According to Ochieng Oduol counsel for the respondent, the applicant had applied for a total reversal of the superior court judgment to which the Court of Appeal had no jurisdiction to do at that stage. He submitted that the court did not have the power to reverse visitation rights while dealing with the application for stay of orders. He stated that if the applicant was dissatisfied with the visitation order she should have gone back to the superior court for a variation of that order. Relating to the evidence given by the child in camera, counsel stated that this been agreed upon by counsel for both parties. Since it was important to consider the capacity to provide for the child, looking into the means of the husband and wife was crucial. He stated that the quality of his life of the child in terms of his education and health could not be gambled with. His rights were guaranteed as the respondent was a responsible parent. On visitation rights, he submitted that any contrary order of access could be disruptive and not in the best interest of the child. Judge Bosire noted that under that rule the views expressed by the court are on a prima facie basis and it is only in clear and exceptional cases that a concluded view may be expressed. Judges of Appeal Bosire and Aganyanya held that most of the contents, if not all, were interrelated and geared towards the determination of the appeal which the court was unable to deal with at that stage. It was a legal requirement that the twin principles stated must both be demonstrated before an order of stay could be granted. It was their view that in the application only one of them, the arguability of the appeal, had been demonstrated but not the nugatory aspect. An order of stay was intended to maintain the position as it was before the order against which the stay was intended was made or in other words to maintain the status quo as it existed then. But from the record of the superior court, the said child previously lived with the respondent and it seemed that the order of stay sought, if granted would not be of any benefit to the applicant as it would still restore the child to the custody of the respondent. They said that the appeal can only be heard on priority basis so that the appeal can be expedited. In Justice Nyamu’s dissented judgment he held that applicant had in the unique circumstances of the case satisfied the second requirement. According to him, the appeal was likely to be rendered nugatory if a stay order was denied. It was common ground that the applicant had been given limited access to the child should she ultimately succeed in the intended appeal her right to parental care would have been lost, never to be recovered again. Whereas the child was 14 years and obviously at the formation stage at least for another five years and it was not known when the intended appeal would be heard. It had not been conclusively shown that the applicant could not be trusted with the right of equal access. For that reason unless a proper conservatory order was made the entire appeal was likely to be rendered nugatory. According to Judge Nyamu liberty once lost could never be recovered. In his opinion the right to family life was intertwined with the right of access to one’s child and both were basic human rights and were also indivisibly tied to the right to life. Basic rights though often categorized were in fact indivisible. In his view varying the order in order to allow that was what would be in the best interest of the child pending appeal. His inclination to vary the order of access was that under sections 3A and 3B of the Appellate Jurisdiction Act allowed the court to break from the past and boldly free itself from any procedures and precedents likely to hinder the court from attaining the objective by doing what was fair and just in every situation before the Court. In his view any past jurisprudence which purported to suggest that it would be wrong to interfere with the superior court orders or to give or design a suitable interim measure in order to achieve the overriding objective had to be gradually reviewed to accord with the ends of justice in each case. For the above reasons Nyamu’s J.J.A ruled that the applicant was entitled to an appropriate interim order. However in line with majority ruling the judgments by Judges Bosire and Aganyanya carried the day. |
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Gazette Notice Vol CXI-No 101 Dated 27th November, 2009 GAZETTE NOTICE NO. 12637 APPOINTMENT IN EXERCISE of the powers conferred by section 19 (1) of the Science and Technology Act, the Minister for Industrialization appoints- MECHAH CHARLES Z. MOTURI (DR.) to be the Director of the Kenya Industrial Research and Development Institute, for a period of three years, with effect from 30th November, 2009. Dated the 24th November, 2009. H.K. KOSGEY,
GAZETTE NOTICE NO. 12638 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (b) of the State Corporations Act, the Minister for Agriculture appoints- WILLIE KIPKORIR BETT To be the Managing Director of the Kenya Seed Company, for a period of three (3) years, with effect from 27th November, 2009. Dated the 24th November, 2009. WILLIAM ARAP RUTO,
GAZETTE NOTICE NO. 12639 APPOINTMENT OF THE KAJIADO NORTH DISTRICT LIQUOR LICENSING IN EXERCISE of the powers conferred by section 4(2) of the Liquor Licensing Act, the Minister of State for Provincial Administration and Internal Security appoints the persons named under column (b) of the Schedule hereto to be members of the Liquor Licensing Court specified in column (a) of the Schedule.
Dated the 24th November, 2009. GEORGE SAITOTI,
GAZETTE NOTICE NO. 12640 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Water and Irrigation appoints- Faith Karimi Njeru To be members of the Board of Directors of the National Water Conservation and Pipeline Corporation, for a period of three (3) years, with effect from 27th November, 2009. The appointment of Margaret Wairimu Thande*, James A. Aremo*, Paul arap Bwale*, Ngila Kimotho*, as directors are revoked. Dated the 24th November, 2009. C.K. NGILU, *G.N. 3834/2007
GAZETTE NOTICE NO. 12641 APPOINTMENT Reuben Ndolo – (Chairman) Members: to be members of the Board of Directors of Athi Water Services Board, with effect from 27th November, 2009. Dated the 24th November, 2009. C.K. NGILU,
GAZETTE NOTICE NO. 12642 APPOINTMENT IN EXERCISE of the powers conferred by Section 83 of the Water Act, 2002, the Minister for Water and Irrigation appoints- Permanent Secretary, Minister of Water and Irrigation, to be Trustees of the Water Services Trust Fund, for a period of three (3) years, with effect from 27th November, 2009. Dated the 24th November, 2009. C.K. NGILU,
GAZETTE NOTICE No. 12643 APPOINTMENT IN EXERCISE of the powers conferred by Section 51 of the Water Act 2002, the Minister for Water and Irrigation appoints Simon Salaon Pertet, to be members of the Board of Directors of Tanathi Water Services Board, for a period of three (3) years, with effect from 27th November, 2009. Dated the 24th November, 2009. C.K. NGILU,
GAZETTE NOTICE NO. 12644 APPOINTMENT IN EXERCISE of the powers conferred by Section 7 of the Water Act, 2002, the Minister for Water and Irrigation appoints- Francis Nyenze as members of Board of Directors of Water Resources Management Authority, for a period of three (3) years, with effect from 27th November, 2009. Dated the 24th November, 2009.
C.K. NGILU
GAZETTE NOTICE NO. 12645 APPOINTMENT IN EXERCISE of the powers conferred by Section 84 of the Water Act, 2002, the Minister for Water and Irrigation appoints- Edward Kochung (Dr.), to be members of the Water Appeals Board, for a period of three (3) years, with effect from 27th November, 2009. Dated the 24th November, 2009. C.K. NGILU,
GAZETTE NOTICE NO. 12646 INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of the following magistrates- Stella M. Muketi, Chief Magistrate- 3,000,000, with effect from 1st December, 2009. Dated the 3rd November, 2009. J.E. GICHERU,
GAZETTE NOTICE NO. 12647 APPOINTMENT IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints the Senior Principal Magistrate, Migori,- SUSAN M. SHITUBI to represent the High Court for the purposes of the section with effect from 1st December, 2009. Dated the 3rd November, 2009. J.E. GICHERU,
GAZETTE NOTICE NO. 12648 APPOINTMENT OF A MAGISTRATE IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, the Chief Justice appoints- SUSAN M. SHITUBI Senior Principal Magistrate at Migori, to preside over cases involving children in respect of Nyanza Province with effect from 1st December,, 2009. Dated the 3rd November, 2009. J.E. GICHERU,
GAZETTE NOTICE NO. 12649 SETTING APART OF LAND Notice is given that the land described in the schedule hereto has been duly set apart in accordance with the provisions of part IV of the Trust Land Act, for the purposes specified in the said Schedule. SCHEDULE Place.- Kokotoni, Mariakani, DESCRIPTION OF LAND This land is situated approximately 6.5 kilometres to the northwest of Mazeras township.The boundaries are demarcated on the ground and are described as follows: Starting from a point “A”, which is an iron pin in concrete from which sportheight 171 and spotheight 174 are 2,750 meters and 1,550 meters distant on bearing of 77° 30' 00'' and 214° 0' 00'', respectively. Thence for a distance of 99.403 metres on a bearing of 323°35'28'' to point MB2; thence for 69.857 metres on a bearing of 13° 14' 26'' to point MB3; thence for a distance of 64.203 metres on a bearing of 127° 24' 19''mto point MB4; thence for a distance of 33.015 metres on a bearing fo 178° 15' 51'' to point MB5; thence for a distance of 60.133 meteres on a bearing of 176° 11' 09'' to point MB6; thence for a distance of 20.616 metres on a bearing of 219° 05' 38'' to point MB1; All bearing given above are magnetic. A plan of the area may be inspected at the office of the District Commissioner. Dated the 9th November, 2009. Z.A. MABEA,
GAZETTE NOTICE NO. 12901 IN EXERCISE of the powers conferred by section 41 (A) of the Constitution of Kenya, and pursuant to a Court decree dated 11th November, 2009, issued under section 61 of the Local Government Act, the Interim Independent Electoral Commission gives notice that the election of Faustine Ndwiga Gatumo as councilor has been revoked and in place thereof Njeru Paul Njuki declared the duly elected councilor for Gaturi South Electoral Area. Dated the 20th November, 2009. A.I. HASSAN,
GAZETTE NOTICE NO. 12902 COMPLIANCE PURSUANT to regulation 3 of the Council of Legal Education (Admission) Regulation, it is notified that the following Fifteen (15) persons: Asin, Idah Adhiambo, Have complied with the provisions of section 13 of the Advocates Act as to pupilage and the passing of examination subject to such exemptions as may have been granted under sub section (2) of the section. Dated the 17th November, 2009. W.K. BITONYE,
SUPPLEMENT No. 77 Acts, 2009 The Appropriation Act, 2009 SUPPLEMENT No. 78 LEGAL NOTICE No. 169-The Council of Legal Education (Kenya School of Law) Regulations, 2009
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Kenya Law Weekly Issue 083/2009
27 November 2009
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