[2010] KEHC 3409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

Civil Appeal 52 of 2009

ARH … …………………APPELLANT

VERSUS

R A..…………...……..……RESPONDENT

JUDGMENT

By a Notice of Motion dated 3rd December 2009, the applicant seeks for stay of execution of judgment delivered on 19-11-09 pending hearing and determination of the appeal.

It is based on grounds that:

(a)The applicant has filed an appeal against the said judgment.

(b)If stay of execution is not granted then the appeal will be rendered nugatory.

(c)The said appeal has high chances of success.

(d)There has been no delay in bringing this application.

(e)The respondent is likely to execute the judgment any time.

The background to this is that the respondent filed in the Kadhi’s court civil case No. [.....]and obtained judgment in her favour. The applicant is dissatisfied with the judgment and has appealed – annexed is the memorandum of appeal.

The applicant is working in a hotel as a waiter at a salary of Ksh. 10,000/- and states that in his supporting affidavit that he has other dependants, namely his younger siblings who are in school and he supports them by paying their school fees. He annexed a copy of his payslip as MN3.

He avers that if stay if not issued, the respondent is likely to embark on execution which in turn will render the appeal nugatory. He points out that respondent has already shifted with all property to another place, even before divorce.

The respondent obtained orders for

(1)Dissolution of the marriage which was to take effect immediately and unconditionally.

(2)The applicant to pay her dowry of Khs. 20,000/-

(3)Custody of the child-with-applicant having right to have access and see the child.

(4)The applicant was to provide maintenance for the child at the rate of Kshs. 6,000/- per month and provide her with clothing, education and medication separately.

(5)The matters related to division of matrimonial property was to be dealt with upon fresh application.

The application is opposed, and in the replying affidavit by the respondent she states that applicant is bound by Islamic Sharia to pay the dowry and that he has parental responsibility over the issue of the marriage and raising a dispute over the child’s maintenance means denying the child’s rights.

She urges that the application be dismissed with costs.

At the hearing of the application, the applicant submitted that the entire judgment should be stayed as he has an arguable appeal. He is also contesting custody. He is however willing to pay the child’s school fees and buy her clothes; and even cater for her health needs as he is a NHIF contributor and the child and respondent are listed as his dependants. He expressed willingness to contribute Ksh. 3000/- towards the child’s welfare while waiting the ruling of this case and hearing of the appeal.

In reply the respondent urged the court not to grant stay saying the findings in the Kadhi’s court were fair, taking into account her dialy expenses. She sees no chances of success since the Kadhi’s findings were based on the teachings of the Quran.

She also sees no reason in staying the dissolution of the marriage saying she does not wish to go through the experience again.

There are very clear considerations to be taken into account when dealing with prayers for stay pending appeal. These are under Order XLI Rule 4 which clearly states that:

“No order for stay of execution shall be made unless.

(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without unreasonable delay.

(b)Such security as the court orders for due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

Certainly the application has been brought without unreasonable delay.

What irreparable loss would the applicant be suffering since respondent has custody of the child and he has the right to access of the child?

What irreparable loss would be suffering in contributing towards maintenance of his own child, for health, her school fees?

What irreparable loss would applicant be suffering in not dissolving the union? He does not state what loss he would suffer in these instances.

I have considered the memorandum of appeal – it must be recognized that the child is a human being with feelings and the court cannot allow parties to play pingpong using the child. I will not stay the issue of custody of the child – there must be some sense of order or continuity for her own interest – if the appeal succeeds and applicant ends up with custody of the child, then it should be a one-off event and not a shuttling and re-shuttling of the child from one parent to the other – I will therefore not interrupt the existing status quo by granting stay on the issue of custody – I decline.

The same goes for maintenance of the child – the child’s interest and welfare is paramount – irrespective of whatever other social obligations the applicant may have – he has undertaken to pay her fees and Kshs. 3000/- maintenance pending outcome of the appeal and also cater for her health needs. That must continue until the appeal is heard and determined and so I will not stay the child’s maintenance in total, it is a limited stay.

The other order dealt with dissolution of the marriage – how practical is it for this court to stop the respondent from not living with the applicant – how will court supervise compliance – the court cannot issue orders in vain and so I will not stay the orders on dissolution – there is no irreparable loss – if the parties ever want to get back to living together, then it should be out of their own free choice.

Then there is the issue of payment of dowry in the sum of Ksh 20,000/- which is to be paid to respondent. Applicant argues that the Kadhi reached this decision on unsound principles – respondent says it’s based on what the Sharia provides – I think this is an arguable point worth considering at the hearing of the appeal. It is not clear whether applicant would be able to recover the sum if it was paid out to the respondent since she has not even disclosed that she is engaged in some income generating activity. I am guided by the court of Appeal decision in Benjamin Karuga and Anor v Kenya Shell 1986 KLR pg 410 I will allow stay only on this limb of the orders issued regarding refund of dowry.

The applicant shall bear 2/3 of the costs of this appellant – respondent shall bear 1/3 costs of this application.

Delivered and dated this 1st day of March 2010 at Malindi.

H. A. Omondi

JUDGE