Custody case opens pandoras box on judicial independence

Judiciary Building, Nairobi. [Elvis Ogina, Standard]

In recent years, a troubling legal saga has unfolded, casting a shadow over the principles of justice and sovereignty between Kenya and other supposedly friendly nations.

The case involving a minor caught in a custody battle between his Kenyan father, a prominent businessman and philanthropist, and his Indian mother has brought to light a concerning disregard for legal protocols and a challenge to Kenya’s judicial autonomy.

The crux of the matter lies in the enforcement of foreign judgments and orders, with the Supreme Court of India seemingly overstepping its bounds and issuing directives that undermine the jurisdiction of Kenyan courts.

The actions of the Indian Supreme Court, as outlined in a letter from the private attorney of the businessman, are not just a matter of legal technicalities but a challenge to Kenya’s sovereignty and the integrity of its legal system.

The background of the case is troubling, with allegations of unauthorised detention of the minor in India for over eight years, attempts to alienate the child from his father, and legal battles spanning multiple jurisdictions. The culmination of these events resulted in a custody order favouring the Kenyan businessman by the Supreme Court of India, contingent upon obtaining a mirror order from Kenyan courts. 

The legal battle subsequently spilled over into the Kenyan courts, with Justice A.C. Mrima issuing a temporary injunction preventing the minor’s mother from taking him out of the jurisdiction. However, the Supreme Court of India has allegedly sought to undermine this by issuing orders preventing the businessman from seeking remedies in the Kenyan courts, accusing him of fraud.

The case involves a minor caught in a custody battle between his Kenyan father and his Indian mother. [iStockphoto]

This situation underscores the need for a harmonised legal approach between jurisdictions. In Kenya, the Foreign Judgments (Reciprocal Enforcement) Act, CAP 43, defines the criteria for recognising foreign judgments, explicitly excluding matters of custody and guardianship of children. The Indian Supreme Court’s actions, therefore, present a direct challenge to Kenyan sovereignty and legal autonomy.

To address this, it is imperative that the Chief Registrar of the Judiciary Anne Amadi intervenes to ensure the proper screening and recognition of foreign orders, judgments, or documents. There is a pressing need to distinguish between civil, commercial, and private law matters, ensuring strict compliance with the Civil Procedure Rules. This intervention will safeguard the integrity of the Kenyan legal system and prevent further injustices.

According to the family’s lawyer, a good friend of mine, the heart of the matter lies in the disconnect between what foreign judgments or orders can be recognised in Kenya and how they are served. However, the Foreign Judgments (Reciprocal Enforcement) Act provides clear guidelines, and Kenya, as a sovereign state, should expect foreign courts to respect its legal processes.

The Kenyan legal system must be safeguarded against external interference, and the integrity of its judgments and orders must be respected. In light of these issues, it is imperative that local authorities take immediate action to address the concerns raised. Here’s where they can start:
1. Review and Verify Orders: Ensure that orders from foreign jurisdictions comply with Kenyan law before allowing their service within the country.
2. Protect Kenyan Sovereignty: Uphold the sanctity of Kenyan court orders and prevent foreign courts from issuing directives that challenge Kenya’s legal autonomy.
3. Withdraw Defective Service Affidavit: In light of the alleged defects in the service process in this particular instance, take immediate steps to withdraw the affidavit of service drawn by a Mr Duncan Muusya.

The Foreign Judgments (Reciprocal Enforcement) Act provides clear guidelines. [iStockphoto]

In my view, this is not just a legal matter but a question of national sovereignty and with weighty implications on Kenya’s ability to administer justice independently. It is also certainly my hope, for the sake of the minor involved, that the Indian High Commission will take notice and take any necessary actions within its remit to rectify the situation promptly. Kenyans are watching, and the principles of justice and national pride are at stake.

Indeed, as this legal battle unfolds, it is crucial for the Kenyan authorities to prioritise the best interests of the minor and uphold his rights as a Kenyan citizen. The international community must also be vigilant, and pressure should be exerted on the Indian High Commission to Kenya to ensure a just resolution that prioritises the welfare of the child over legal technicalities.

In an era where legal systems transcend borders, it is imperative to establish protocols and mechanisms that prioritise the well-being of minors caught in the crossfire of international legal disputes.

To reiterate the crux of my argument in the first column in this series, this particular case highlights the need for a coordinated effort to protect children from potential harm and ensure that their voices are heard and respected in all legal proceedings. It’s an important stress test for our legal system and India’s too. The eyes of the world are watching. Failure is not an option.

The writer is a host on The Situation Room, Spice FM’s popular current affairs morning talk show. This column is the second in a three-part series delving deep into this critical issue. We invite you to share your invaluable experiences and insights on this matter to enrich the upcoming piece.