[2014] KEHC 3135 (KLR)
The court found that the children had been in the custody of the applicant since 2012 without any allegations of abuse, neglect, or ill-treatment. Disrupting their current living arrangements by executing the Kadhi's order before the appeal is determined would not serve their best interests. The court emphasized...
Source-derived case information.
- Citation
- [2014] KEHC 3135 (KLR)
- Parties
- Appellant: A A I; Respondent: H A D
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted; status quo to be maintained pending appeal.
- Judges
- JV Juma
- Legal Topics
- Child Custody, Stay of Execution, Best Interests of Child, Maintenance Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A A I
Appellant
H A D
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the Kadhi's Court judgment should be granted pending appeal.
- 2 Whether maintaining the status quo is in the best interests of the children.
Ratio Decidendi
The court found that the children had been in the custody of the applicant since 2012 without any allegations of abuse, neglect, or ill-treatment. Disrupting their current living arrangements by executing the Kadhi's order before the appeal is determined would not serve their best interests. The court emphasized that children are creatures of habit and comfort, and unnecessary disruption should be avoided, especially when the intended appeal raises pertinent and triable issues. Therefore, the court granted a stay of execution to maintain the status quo until the appeal is heard and determined, with provision for the respondent to have regular access to the children.
Court Disposition
Stay of execution granted; status quo to be maintained pending appeal.
Orders
- Prayer (2) of the Notice of Motion is allowed; stay of execution of the Kadhi's Court judgment is granted pending appeal.
- The respondent is to be allowed regular access to all the children on terms agreeable to both parties.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 4 OF 2014
A A I……………………………………….…….APPELLANT
VERSUS
H A D…….………................….…………..….RESPONDENT
RULING
Before court is a Notice of Motion dated 11th March, 2014 seeking inter alia the following orders:
“2. THAT this Honourable Court be pleased to issue a stay of execution of the Judgment and Decree of the Kadhi’s Court in Civil Suit No. 55 of 2013 H A D Vs. A A I delivered on 20th February, 2014 pending the hearing determination of the appellant/applicant’s appeal.
3. THAT this Honourable Court be pleased to issue such orders as it may deem convenient in the circumstances.
4. THAT costs of this application be provided for.”
The application was supported by the affidavit of the applicant ‘A A I’ sworn on 11th March, 2014. The respondent opposed the application. The application was argued before the court on 23rd July, 2014. MS. OSINO Advocate appeared for the applicant whilst MR. KHALID acted for the respondent.
The parties were married under Islamic Sharia Law of 27th June, 2000 in Nairobi. Their union was blessed with three children all daughters. On 20th February, 2014 the Kadhi’s Court in Mombasa delivered a judgment dissolving the marriage between the two. The Hon. Kadhi went further and vested custody of all three children in the respondent and ordered that the applicant pay maintenance. Being aggrieved by the decision of the Hon. Kadhi the applicant has filed an appeal. He now seeks a stay of execution of the decision of the Kadhi pending the hearing and determination of that appeal.
It is not in dispute that since October, 2012 when the couple separated the children have all along been in the custody and care of the applicant. He has provided for their needs single handedly. Execution of the Kadhi’s order will require that the children move from their current residence to live with their mother the respondent. I have given careful consideration to the submissions made by counsel. In all matters relating to children a court is obliged to give priority to the ‘best interests’ of the child. At this point I would not wish to comment on the merits or otherwise of the intended appeal. All that this court is being required to consider is whether sufficient grounds exist to grant a stay at the present time. The children have lived with the applicant since 2012 when their mother left the matrimonial home. The court is told that they attend a school close to their home. I am fully aware of the general principle that girl children ought to be in the custody of their mother. However the fact is that the three girls have all lived away from their mother for the past two (2) years. There has been no allegation of abuse, neglect or ill-treatment of any of the children whilst in the custody of their father. Children are creatures of habit and comfort. It would be unnecessarily disruptive to have them move at this point only to have the High Court reach a different decision upon appeal. I have perused the intended appeal and I note that it raises pertinent and triable issues. It is my considered opinion that the best interests of the children dictate that the current status quo be maintained. I therefore allow prayer (2) of this Notice of Motion. I further order that the respondent be allowed regular access to all the children on terms agreeable to both parties. Hearing of the appeal to be expedited.
Dated and delivered in Mombasa this 26th day of August, 2014.
M. ODERO
JUDGE
In the presence of:
Ms. Osino for Applicant
Mr. Khalid for Respondent
Court Clerk Mutisya