[2023] KEHC 24996 (KLR)

AKM v SWM (Family Appeal E111 of 2023) [2023] KEHC 24996 (KLR) (Family) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24996 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Family Appeal E111 of 2023

HK Chemitei, J

November 8, 2023

Between

AKM

Appellant

and

SWM

Respondent

Ruling

1. The Notice of Motion by the applicant herein dated 12th October 2023 prays for the following orders;“(a)That there be a temporary stay of execution of the order made on 15th September 2023 pending the hearing and determination of the application dated 8th June 2017. (b)That there be stay of execution of the order made on the 15th September 2023 pending directions on the hearing of the substantive appeal herein.(c)That the appellant be allowed to pay school fees and school related expenses to the extent of his financial capability.(d)That the court be pleased to issue further orders as may be just, expeditious and proportionate in the circumstances to meet the overriding objectives.(e)That the court under its inherent powers under Section 118 of the Children’s Act be pleased to make any other interim order or directions as regards the minors as it may deem necessary of fit.

2. The application is based on the grounds on the face of the application and the sworn affidavit of the applicant dated even date.

3. The application was opposed by the respondent vide her replying affidavit sworn on 24th October 2023. The applicant on the other hand filed a further affidavit sworn 30th October 2023.

4. The court directed the parties to file their written submissions which they have complied.

5. The issue herein is not difficult to understand. The applicant and the respondent are husband and wife and their marriage seemed to have faced some difficulties. In between their marriage they were blessed with two minors AMK aged 14 years and MMK aged 12 years.

6. The respondent filed a suit against the applicant for maintenance at the Children’s court in which it directed inter alia that the applicant was to meet 50% of the minor’s school fees beside other maintenance. The applicant it appears was unable to pay the entire fees and according to his evidence he only paid Kshs 617,500. He also purchased the minor’s other items like school kits as well as food and other shopping as directed by the school.

7. The applicant deponed that he has been unable to foot the entire bill as directed by the court because of other financial challenges he was going through. He said that the taking of a notice to show cause (NTSC) by the applicant would greatly cause untold suffering to him as he shall not be able to provide for the minors while in prison.

8. He therefore prayed that because of the economic situation he was in he could not afford what the court ordered and prayed that this court varies the same and that the notice to show cause be halted.

9. The respondent on the other hand deponed that it was not true that the applicant was unable to meet his obligations as directed by the court. She said that the applicant was earning over Kshsh500,000 every month from the rental income and which was capable of paying fees for the minors.

10. The respondent deponed further that the interest and the lifestyle of the minors ought not to be compromised and that their best interest was paramount.

11. The court has perused the entire application, the submissions on record and it is true as submitted that the issue before this court is basically determining whether at the interim level and pending the hearing of the appeal this court could vary the orders by the trial court. Further and in light of what the said court stated execution proceedings against the applicant should be halted or not.

12. It is also not lost to the court that the main suit is still pending before the trial court. What is before me is purely an interim measure by the parties. At the trial court the parties will still have sufficient time to ventilate their issues and the court arrive at a substantive judgement.

13. The purpose of the court in children’s matters is not to impede any progress of the minors. At the same time every issue must be weight independently against all the issues before it. As much as possible the status quo obtaining must be maintained. In other words, despite the changing lifestyles of parties, for life is not static but dynamic, the children must not be disadvantaged.

14. At the same time the parents must not be punished for changing circumstances especially in their economic situations or fiscal position. Essentially therefore in as much as the interest of the children is paramount as envisaged under Section 8 of the Children’s Act, this must be weight against the circumstances faced by the parents. This of course does not mean that the parents must abrogate their parental responsibilities. In essence each situation must be dealt with independently.

15. Having stated as much it appears to me in this matter that the only issue at hand has to do with the school fees of the minors. The issue of clothing’s and other shopping was well tackled by the applicant and there was no complain from the respondent.

16. I have seen the deposition by the respondent that the applicant was earning a sum of Kshs 500,000 per month from rental incomes. The applicant has disputed this and went ahead to state that he has gone back to his maternal home because of the economic challenges he was facing. This may or may not be true but it is an issue that can be brought out during substantial hearing of the suit.

17. At the same time the applicant denied that he received any benefits from Pelican Engineering Company which was owned by his parents. Again this is an issue for trial.

18. What then is the best way forward? How can the interest of the children to be secured in light of the application herein and the interim orders of the trial court.?

19. I think locking the applicant in prison is not efficacious and not in the interest of the children. From what is attached to the supporting affidavits the court is satisfied that he has acquitted himself, at least for now. There is no evidence that the children have been sent away from school or have not been provided as expected.

20. In the premises I think it is only reasonable that the applicant be allowed to pay what he claims to be able to meet as school fees from his part. The respondent shall of course meet the other part as directed. The other requirements of shopping and clothing’s shall remain so.

21. The applicant shall therefore meet the children school fees of up to Kshs 620,000 beside meeting their food, clothing and shopping pending the hearing and determination of the suit at the lower court.

22. Based on the above findings it is the directives of this court that this appeal be held in abeyance to allow the parties determine the matter at the lower court expeditiously and depending on its outcome the parties may thereafter take any necessary steps.

23. There be stay of execution against the applicant only to the extent that he continuous paying the sum of Kshs620,000 being his contribution towards school fees and in default the respondent be at liberty to execute.

Conclusion(a)There be a variation of the trials court order to the extent that the applicant shall pay school fees to a tune of Kshs 620,000 being part of his contribution.(b)The other orders on clothing’s, food and shopping shall remain as directed.(c)This appeal is held in abeyance as the parties are hereby directed to proceed with the matter at the trial court to its logical conclusion.(d)There be stay of execution against the applicant to the extent that he continuous complying with the above orders.(e)costs shall be in the cause.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 8TH DAY OF NOVEMBER 2023. K CHEMITEIJUDGE