From India to Kenya, tycoon’s quest for son’s custody derailed

The custody of a child belonging to a top Kenyan-British businessman of Indian origin and his estranged Indian wife is in disarray after the High Court in Nairobi declined to adopt a judgment passed by the Supreme Court of India granting the man custody of the minor.

In its judgment delivered in October last year, the Supreme Court of India ordered the man's former wife, who is a lawyer in New Delhi, to hand over the 11-year-old boy to the man.

The court noted that the boy, having completed almost 11 years in the exclusive custody of his mother, was entitled to enjoy the protection and care of his father, for his holistic growth and development.

The businessman, code-named in court papers as P, has investments in Kenya in agribusiness and salt production.

The woman is an Indian citizen, whereas the man and the child have dual citizenship of Kenya and the United Kingdom. The child had been granted Overseas Citizen of India (OCI).

The Indian apex court directed him to obtain a mirror order from the High Court in Kenya reflecting the directions in the judgment. A copy of the mirror order was then to be filed in the Supreme Court of India.

He had also been directed to apply and obtain a fresh Kenyan passport for the child. The mother was to provide full cooperation and not cause any obstruction.

After filing the mirror order from Kenya before the Supreme Court, the mother was to provide the birth certificate and the transfer certificate from Delhi Public School, to enable the man to secure admission of the child in a school in Kenya.

But Justice Mugure Thande has declined to adopt the judgment on grounds that Kenya does not have arrangements of reciprocating judgments with India.

She said the judgment obtained by the man is not registerable in Kenya, since India is not among the countries listed in the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, 1984, that have reciprocal arrangements with Kenya. 

The listed countries include Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda.

"There are currently no reciprocal arrangements in place between Kenya and India pursuant to which either country’s judgment may be enforced or registered by either country’s courts.  As such, the Supreme Court of India is not a “designated court” within the meaning of the Act," said Justice Thande.

She also noted that the order, which the man sought, related to the custody of a child. She said even if India were a reciprocating country, the man's application would still run into headwinds in view of the provisions of Section 3(3)(e) of the Act.

The said section provides that the reciprocal of court decisions does not apply to a judgment or an order in proceedings in connection with the custody or guardianship of children.

"This court has no jurisdiction to enforce or register a foreign judgment in proceedings in connection with the custody or guardianship of a child," stated Justice Thande.

The estranged couple got married in 2007 in New Delhi and separated in 2012.

After marriage, the woman moved to Nairobi and settled in her matrimonial home. In 2009, she returned to India for childbirth, and even though the child was Indian by birth, a decision was taken by his parents that he would hold dual citizenship of Kenya and the UK.

In 2012, during the family’s visit to India and when the man was preparing their travel to Nairobi so that the child could start school, the woman filed a case at the Delhi High Court against the man and his parents.

She sought a permanent injunction restricting the father and his parents from removing the child from her custody.

This was the starting point of litigation between the parties for the custody of the child.

The dispute went all the way to the Supreme Court, with the woman losing throughout.

By majority, the Supreme Court of India held that in selecting the proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child.

When the judgment was delivered, the minor was almost 11 years of age. It had been observed by the Family Court, the child counsellor, and the High Court in their personal interactions with the child at different stages of the proceedings, that he was bright and articulate, and was capable of unequivocally expressing his preferences and aspirations.

The court noted that what emerged from all those interactions of the minor with the courts since 2016 when he was six years old, was a positive attitude towards his father and paternal grandparents, even though he had not lived with them since when he was a toddler and had gone to India on a visit in March 2012.

"In view of the various personal interactions, which the courts had had with the minor at different stages of the proceedings, from the age of six years, till the present when he was now almost 11 years old, it would be in his best interest to transfer the custody to his father. If his preferences were not given due regard to, it could have an adverse psychological impact on the child," said the Supreme Court.

On the welfare of the child, the man told the court that he had secured admission for the minor at the Nairobi International School, which followed the IB curriculum.

The court stated that it was necessary that the minor got greater exposure by overseas travel. It was important for him, they said, to be exposed to different cultures, which would broaden his horizons, and facilitate his all-round development, and would help him in his future life.

"The minor child was the heir apparent of a vast family business established by the family of the respondent in Kenya and UK. Since the businesses of the paternal family were primarily established in Kenya and the UK, it would be necessary for the minor to imbibe and assimilate the culture and traditions of the country where he would live as an adult.

It would also be necessary for him to learn the local language of Kiswahili, and adapt himself to the living conditions and surroundings of the country," ruled the court.