Interests of the child ought to precede civil procedure

An appraisal of the often-misconstrued judicial review process in light of common international approach in children’s rights


By Nur el-Kathiri

Republic vs. Senior Resident Magistrate Mombasa Ex Parte H l & Another [2016] eKLR
The grounds for a Judicial Review application in the High Court have been well established in judicial precedents. Further, the scope of the jurisdiction of the Children’s Court has been, commendably, provided for in the Children Act. The question that arises is whether the High Court suitably applied these pieces of legislation appropriately in the case in review.


This was a Constitutional and Judicial Review Application whose ruling was issued on July 15, 2016 at the High Court of Kenya at Mombasa by the Honourable Justice M. J. Anyara Emukule.

The Applicant is the father of the child in this Application (female) and is working for gain in the Republic of Tanzania; both he and the child are Canadian citizens. The Interested Party herein is a Kenyan Citizen residing in Mombasa (and the mother of the child).

A Settlement Agreement dated December 20, 2010 filed at the High Court at Mombasa, awarded the Interested Party sole primary custody of the child with specific visitation rights awarded to the Applicant. During the July 2015 holidays, the child went to stay with the Applicant, who proceeded to enrol the child at a school in Dar-es-Salaam. A few months later, the child travelled alone to Mombasa from Dar-es-Salam to be with the Interested Party and allegedly expressed her desire not to return to Dar-es-Salaam on account of the verbal abuse that she had suffered at the hands of the Applicant.

Procedural history

The Interested Party was granted orders restricting the child from returning to the Applicant on December 15, 2015 by the Tononoka Children’s Court. The Applicant filed this Judicial Review Application by way of Chamber Summons of January 8, 2016, seeking orders to quash the decision made by the Magistrates court at Tononoka.

The legal issues

The main legal issues in this matter are whether the Children’s Court at Mombasa did, in actual fact, have the relevant jurisdiction to issue orders pertaining to individuals who do not reside in Kenya and; whether the Applicant has fully fulfilled the requirements/and or grounds necessary to successfully make a Judicial Review (JR) Application to quash the decision of the Children’s Court.

The court ruled in the following manner: That the Magistrate at the Children’s Court did, indeed, have the appropriate jurisdiction to hear and give the orders he did; in Children Case; that the Judicial Review orders of Certiorari, Prohibition and Restoration of the status ante in this Application could not be sought against the Respondent and; that the court of Judicial Review was neither the appropriate court within which to hear and determine the evidence of the child, nor is it the appropriate court within which to review issues regarding the merits of the case.

Court’s rationale

On Jurisdiction
The Court relied on the Preamble and Section 76 (1) of the Children Act that confers upon the Children’s Court the jurisdiction to hear all matters pertaining to a child’s welfare, and further gives the court a wide discretion when it comes to such matters. It would further be unconstitutional to find that the Kenyan court did not have the appropriate jurisdiction to protect the rights of the child because the welfare of the child is of paramount importance and must always be the primary concern in any suit as is contemplated in Section 4 of the Children Act, Article 53(2) of the Constitution of Kenya and Article 3(1) of the Convention on the Rights of the Child.

On Judicial Review
The Applicant contended that crucial evidence (Psychological Report on the child by a Canadian Psychiatrist) had not been presented to the court, and that this amounted to non-disclosure of material facts Section 4(4) of the Children Act. The Court stated that JR proceedings are based on disputes of the decision-making process of the Court, and not on disputes of the merits of the case, which the child’s evidence entails. The Judge stated that a dispute regarding a failure of the Court to adhere to this provision should be considered by the same Court and thus precludes this Application in the court of JR from being the appropriate remedy to be sought by the Applicant.

When determining if the Certiorari, Prohibition and Restorative orders sought in this Application were viable, the Court relied on the principles of JR. It established that if there had at all been a dispute in the process by which the court came to that decision regarding the child then, the JR proceedings may have been entertained.

It is the argument of this comment that the honourable High Court was correct to find that the Application had failed to meet the threshold if appropriate and sufficient grounds to make a Judicial Review application as established by Lord Diplock in the case of “Council for Civil Service Unions vs. Minister for Civil Service” (1985) and the Harlsbury’s Laws of England were not met. This is important because it solidifies the notion that the requirements in place create uniformity and give certainty to the procedures involved.

It also argues that the Magistrate at the Tononoka Children’s Court did indeed have the appropriate jurisdiction to grant those orders in favour of the Interested Party under the scope of the Children Act, and other common international laws. This is important as it ensures that the welfare of children is not compromised as result of technicalities in procedure and questions on jurisdiction.

The threshold for Judicial Review applications should be strictly respected. The established requirements are important because they help prevent frivolous and vexatious applications aimed at frustrating and stalling undesirable yet justified and legitimate administrative and judicial decisions.

Judicial Review proceedings are based on the decision-making process, not the merits of the case. The grounds that set the threshold for such applications are: “illegality”, where the decision maker did not understand the law correctly and applied it inappropriately; “irrationality”, referred to as “Wednesbury unreasonableness”, where a decision was made which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it, and; “procedural impropriety”, where the decision maker fails to act with procedural fairness towards the person affected by the decision.

I agree with the court’s decision to dismiss the application in that one of the grounds upon which the Applicant filed the Judicial Review proceedings was the fact that the trial court had failed to consider crucial evidence of the child before granting the restricting orders. This questions the merits and evidence of the case, and not procedural shortcomings in the decision-making process. An appeal to the court of first instance would have been the appropriate remedy to seek.

In relation to alleged procedural issues to justify the Judicial Review proceedings, the applicant argued that the trial court had erred in granting orders in favour of the Interested Party without serving the Applicant with foreign summons as is proper civil procedure for an affected party residing outside the jurisdiction of Kenya, pursuant to Order 5 Rule 21. However, the Constitutional protection of a child contemplated in Article 53(2) and Section 4 of the Children Act both express the paramount importance of the child’s welfare over and above any technical or procedural requirement giving the children’s court a wide discretion on the same.

On the issue of jurisdiction, I agree with the decision of court because I strongly believe that the constitutional and international protection of the rights and interests of children remains of paramount importance, overriding any civil procedure rules. The Children’s Court, and courts of most jurisdictions, are granted a wide discretion on matters regarding children as long as their decisions can be justified as the “best possible decision” for the wellbeing of the child.


In this case, the court refused to compromise on the threshold requirements for the grounds for judicial review proceedings which I believe should be strictly adhered to. Further, the decision enforces the importance of the children’s interests above and beyond any procedural requirements. It has now become a pillarstone decision and has set a new precedent that even the most sacred element of jurisdiction in the judicial forum can be set aside for the best interests of the child. This decision, I believe, will make it easier for the courts to honour the spirit of the constitutional protection of the children despite jurisdictional technicalities.



Please enter your comment!
Please enter your name here