A Canadian citizen has lost his bid to have a family court enforce orders of the High Court in Canada that granted him permanent custody of his child, who is living in Mombasa.
The High Court in Mombasa dismissed a petition filed by the man, referred to as MAK, saying the court has no jurisdiction to enforce a foreign judgment in proceedings related to custody or guardianship of a child.
Justice Mugure Thande said the order from the Canadian court must be made by a court in a reciprocating country as provided under Section 13 of the Foreign Judgment (Reciprocal Enforcement) Act, and it must be one that applies to the law.
MAK said in court papers that he married SNMM under Islamic law and the two were blessed with a child. He said he and the child are Canadian citizens.
He argued that his wife visited her parents in Kenya with the child and failed to return to Canada before she cut off all communication.
ENFORCEMENT
MAK then moved to the High Court in Canada and obtained orders of permanent custody and immediate return of the child.
In her response, SNMM confirmed that she was married to the petitioner and they were blessed with the child.
But she accused MAK of dishonesty, stating that the family came to Mombasa in January 2015 for a family reunion but he returned to Canada after four days.
She denied that she had kept the child from MAK and said that she always ensures that the child communicates with him.
She also argued that the Canadian court’s order cannot be enforced as the Foreign Judgment (Reciprocal Enforcement) Act does not apply to proceedings about the custody of children and that the child is of tender age and should, in her best interests, remain with her mother.
Justice Thande argued that “the objective of the Act is to make provision for the enforcement in Kenya of judgments given in other countries which accord reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith”.
CHLDREN’S ACT
Under Section 13 of the Act, the country giving the judgment must be a reciprocating country as declared by the line minister (Cabinet Secretary).
According to the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, 1984, the reciprocating countries are Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda.
“The order of the enforcement which the petitioner seeks gave permanent custody of the child to him. Even if Canada were a reciprocating country, he would still run into headwinds as he would have to contend with the provisions of Section 3(3)(e) of the Act,” noted the judge.
The section provides that the Act does not apply to a judgment or order of proceedings in connection with the custody or guardianship of children.
WELFARE
The court further noted that the child was born in 2012 and was below 10 years and thus under the Children’s Act, she is a child of tender age.
Justice Thande observed that the best interests of the child will be best served if she remains in the physical custody of her mother.
But the court was quick to say that it is necessary that her father play an active role in her life, notwithstanding that he lives in another country.