[2019] KEHC 11212 (KLR)
The court granted the applicant leave to appeal because the request was made timeously and an aggrieved party should be allowed to challenge court orders. However, the court declined to grant a stay of the orders relating to child upkeep and maintenance, noting that the obligation is ongoing, the unpaid amount is...
Source-derived case information.
- Citation
- [2019] KEHC 11212 (KLR)
- Parties
- Applicant: ADC; Respondent: DPN
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 178 of 2014
- Procedural Posture
- Divorce Cause / Ruling on Application for Leave to Appeal and Stay of Orders
- Outcome
- Application for leave to appeal allowed; application for stay of orders declined; costs to the respondent.
- Judges
- AO Muchelule
- Legal Topics
- Child Maintenance, Leave to Appeal, Stay of Orders, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ADC
Applicant
DPN
Respondent
Procedural Posture
Divorce Cause / Ruling on Application for Leave to Appeal and Stay of Orders
Legal Issues
- 1 Whether the applicant should be granted leave to appeal the court's orders.
- 2 Whether a stay of the court's orders relating to child upkeep and maintenance should be granted pending appeal.
Ratio Decidendi
The court granted the applicant leave to appeal because the request was made timeously and an aggrieved party should be allowed to challenge court orders. However, the court declined to grant a stay of the orders relating to child upkeep and maintenance, noting that the obligation is ongoing, the unpaid amount is substantial, and the applicant has not honored the agreement. The court emphasized that the best interests of the children are paramount and that their maintenance is a statutory and constitutional responsibility that cannot be suspended by a stay order.
Court Disposition
Application for leave to appeal allowed; application for stay of orders declined; costs to the respondent.
Orders
- Leave to appeal granted to the applicant within 7 days.
- Application for stay of court orders pending appeal is declined.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
DIVORCE CAUSE NO. 178 Of 2014
ADC.........................................APPLICANT
VERSUS
DPN.....................................RESPONDENT
RULING
1. A party who is aggrieved by the orders of this court and seeks leave to challenge them on appeal has to be allowed to do so, more so when he has made the request timeously. I consequently allow the applicant 7 days leave to file the appeal at the Court of Appeal and to serve.
2. As for the stay of the orders sought to be challenged, I consider that the appeal has not been filed. Secondly, the orders in question relate to the upkeep and maintenance of the children in this cause. The unpaid amount by the applicant is in excess of Kshs.9,000,000/=. It followed agreement which the applicant has not honored. The obligation was monthly, and is a continuing one.
3. Under Article 53(2) of the ConstitutionandSection 4(3) of the Children Act, the Court has to safeguard and promote the rights and welfare of the children. The court has to bear in mind that the best interest of the children is of paramount importance. The provision of the children’s upkeep and maintenance is the applicant’s statutory and constitutional responsibility which the court cannot adjourn by way of a stay order.
4. In conclusion, I allow application for leave to appeal, but decline the request for stay of the court orders pending the appeal.
5. The applicant has been indulged. He will pay the costs of the application.
DATED and DELIVERED at Nairobi this 29TH day of APRIL 2019
A.O. MUCHELULE
JUDGE