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Case Name

Shabbir Ali Jusab v. Anaar Osman Gamrai and the Hon. Attorney General, Civil Application No Sup 1 of 2012

INCADAT reference

HC/E/KE 1200





Court of Appeal, Nairobi


Appellate Court

Githinji, Onyango Otieno, Koome, JJ.A.

States involved

Requesting State


Requested State




9 November 2012




Procedural Matters | Non-Convention Issues



HC article(s) Considered


HC article(s) Relied Upon


Other provisions
Constitution of Kenya, 2010, Articles 53(2) and 163 (4) (1); Children's Act, 2001, ss. 4 (3); 22; Supreme Court Act, Article 163 (4) and (3)
Authorities | Cases referred to
Sum Model Industries Ltd v. Industrial & Commercial Development Corporation, SC Civil Application No. 1 of 2011; Dellway Ltd & Others v. National Asset Management Agency, Ireland & The Attorney General, [2010] IEHC 375; Arklow Holidays v. An Bord Plean'ala [2007] 4 IR 112; Peter Oduor Ngoge v. Hon Francis Ole Kaparo & 6 Others, SC No. 2 of 2012; Prosecutor v. William Samoei Ruto & Another, ICC 01/09-01/11; Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Civil Application No. Sup 4 of 2012.
Published in


INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

Non-Convention Child Abduction Cases under National Law
Policy Issues


Summary available in EN


The proceedings concerned a child born in the United Kingdom in May 2005 to a British father and Kenyan mother. The couple had married in Nairobi in April 2005 and thereafter settled in the United Kingdom. On 30 November 2007, the mother travelled with the child to Kenya. The circumstances of the trip were in dispute and had not been resolved by the Kenyan courts.

On 15 January 2009, the Family Division of the High Court in London made the child a ward of court and ordered the mother to return the child to England. Legal proceedings were issued in Kenya, both before the Children's Court and the High Court. On 17 March 2009, the High Court of Kenya, at Nairobi, made an order for the return of the child forthwith to the Family Division of the High Court, the child being a ward of that court.

The mother appealed the return order of the High Court, and on 10 June 2011, her appeal was upheld: Civil Appeal No. 188 of 2009 (O'Kubasu, Aganyanya and Waki, JJ.A). The Court of Appeal ordered that the matter before the Children's Court should proceed for hearing. The father applied to a different panel of the Court of Appeal, under the provisions of Article 163 (4) (1) of the Constitution, for a certificate to appeal to the Supreme Court.


Certificate to appeal to the Supreme Court granted; the issues raised by the applicant father were each deemed to involve a matter of general public importance.


Procedural Matters

The issue for the Court to decide was whether the effect of the judgment of 10 June 2011 raised a matter of general public importance to justify its certification for an appeal before the Supreme Court. The father's case was that it did raise points of law of general public importance regarding international child abduction which indeed necessitated adjudication before the Supreme Court.

The mother opposed this position and argued that the outstanding issues should simply be adjudicated in the pending proceedings before the Children's Court. The Court noted the progressive nature of the Children's Act, 2001, which embodied the fundamental principles of the rights of the child, and had done so even before those rights had been entrenched in the Constitution of Kenya, 2010.

It further noted that the Court of Appeal in its 10 June 2011 ruling had considered the application of the 1980 Hague Child Abduction Convention, or at least its spirit and principles, as well as the principles of international instruments and customary international law vis-à-vis the provisions of the Children Act, 2001. In the judgment of 10 June 2011, the Court concluded:

"It [Children Act] says nothing about the Hague Convention or the principles and it follows therefore that abduction cases if they arise in the country under Section 13 (1) of the Act shall be dealt with on first principles." The Court cited the matters identified by the father which he submitted were of "monumental public interest" arising from the judgment of 10 June 2011:

"(i) The arising deprivation of the child subject of these proceedings of his nationality (UK), which in itself is a constitutional right; (ii) The choice of forum between two competing for the adjudication of the custody issues in international child abduction (in this case Kenya and the United Kingdom); (iii) The time line for the determination of international child abduction cases as presented by this case; (iv) The procedure and manner of determining international abduction cases in Kenya such as this where Kenya is as yet not a signatory to the Convention on the Civil Aspects of International Child Abduction (Hague Convention), 1980; (v) The import and application of international instruments and of the African Charter on the Rights and Welfare of the Child and the United Nations Convention on the Rights of the Child in International Child Abduction cases such as this; (vi) The rights of the "victim" parent of international child abduction in cases such as this."

The Court concluded that in the light of the conflict of jurisdiction between the English and Kenya courts, as well as problems surrounding the applicable law, nationality of the child, the best interest of the child, the rights of the respective parents and their parental responsibilities, there was a matter of general public importance involved in each of the six issues framed by the father. The certificate to appeal to the Supreme Court was granted.

Non-Convention Issues

See above.

Author of the summary: Peter McEleavy

INCADAT comment

Policy Issues

When a parent seeks the return of a child outside the scope of the Hague Convention, or another international or regional instrument, the court seised will have to decide how to balance the interests of the child with the general international policy of combating the illicit transfer and non-return of children abroad (Art. 11(1) UNCRC 1990).

Shortridge-Tsuchiya v. Tsuchiya, 2009 BCSC 541, [2009] B.C.W.L.D. 4138, [INCADAT cite: HC/E/CA 1109].

United Kingdom - England & Wales
Appellate courts have struggled to agree on the appropriate balance to be struck.

An internationalist interpretation, favouring an approach mirrored on that of Hague Convention, was adopted by the Court of Appeal in:

Re E. (Abduction: Non-Convention Country) [1999] 2 FLR 642 [INCADAT cite: HC/E/UKe 589];

Re J. (Child Returned Abroad: Human Rights) [2004] EWCA Civ. 417, [2004] 2 FLR 85 [INCADAT cite: HC/E/UKe 586].

However, in the earlier case Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite: HC/E/UKe 588] a return order was not made, there being concerns as to whether the legal system in the foreign jurisdiction would be able to act in the best interests of the child. A factor in that case was that the abducting mother, who was British, would not be entitled to relocate from the child's State of habitual residence unless she had the consent of the father.

In Re J. (A Child) (Return to Foreign Jurisdiction: Convention Rights), [2005] UKHL 40, [2006] 1 AC 80, [INCADAT cite: HC/E/UKe 801] the House of Lords expressly stated that the approach of the Court of Appeal in Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite: HC/E/UKe 588] was the one to be preferred.

The House of Lords held that the rationale of the Hague Convention necessarily meant that the State of refuge might on occasion have to do something which was not in the best interests of the individual child involved. States parties had accepted this disadvantage to some individual children for the sake of the greater advantage to children in general.  However, there was no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which were not parties to it. In a non-Convention case the court must act in accordance with the welfare of the individual child. Whilst there was no ‘strong presumption' in favour of return on the facts of an individual case a summary return may very well be in the best interests of the individual child.

It may be noted that in Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 854, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982] a trial judge who felt compelled to discharge his original order for return in the light, inter alia, of the ruling in Re M. had his judgment overturned. The Court of Appeal did not, however, comment on the ruling of the House of Lords and the case ostensibly turned on the existence of new evidence, pointing to the inevitability of the mother's deportation.

In E.M. (Lebanon) v. Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198 [INCADAT cite: HC/E/UKe 994] an immigration case centred around the wrongful removal of a child from a non-Convention country, the House of Lords ruled that a return would lead to a violation of the child's and his mother's right to family life under Article 8 of the European Convention on Human Rights (ECHR). However, it must be noted that on the facts the child's only ‘family life' was with the mother, the father having had no contact with the child since the day of his birth. A majority of the panel (4:1) held that the discriminatory nature of Lebanese family law, which would have led to the automatic transfer of care for the child being passed from mother to father, upon the child reaching his 7th birthday, would not have led to a breach of the ECHR.