[2017] KEHC 9593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY AND PROBATE DIVISION

CIVIL APPEAL NO. 66 OF 2017

ALEX MUCHIRA MWANGI.........................................APPELLANT

VERSUS

JADE MUGURE MWAURA......................................RESPONDENT

(Being an appeal filed against the ruling delivered

in NairobiChildren Case No. 560 of 2016on

8th September 2017 and 11th September 2017)

RULING

1. The application for determination is a Motion dated 12th September 2017. It seeks stay of the proceedings before the lower court, and that the lower court file be called for to determine the legality of the proceedings being conducted in that matter. The interlocutory application is mounted within an appeal filed herein vide a memorandum of appeal dated 12th September 2017 and lodged herein on even date, which seeks that the decision of the lower court made on 8th September 2017 be set aside.

2. In the affidavit sworn on 12th September 2017 by the appellant, it is averred that the lower court had ordered that the parties revert to court orders that had been made on 11th November 2016 and 11th September 2017, and had revived a warrant of arrest made against him. He asserts that the making of the order for his arrest was founded on misrepresented facts. He states that he is a university student who is unable to cater for the needs of the child the subject of the proceedings. He pleads that the warrant of arrest would infringe on his constitutional right to liberty. He has attached to that affidavit two annextures. The first is an order that was made by the lower court on 11th November 2017, and which was issued or extracted from the court record on 11th September 2017. It makes three orders –

(a) That affidavits of means be filed within some set period,

(b) That the appellant do pay the decretal sum on the face of the notice to show cause dated 8th July 2016 within fourteen days in default of which warrant of arrest was to issue automatically, and

(c) That the orders made on 19th May 2016 were to be suspended to facilitate filing of the affidavits of means but should there be failure to file the affidavits within the set period the said orders shall stand reinstated.

3. Upon being served with the application, the respondent swore an affidavit in response on 27th September 2017. She pleads that a case has not been made out for stay of the proceedings, saying that the pleadings are unclear to the extent that the appeal is founded on an order made on 8th September 2017 and dated 11th September 2017 that she was unaware of. She gives a chronology of events in the matter, and pleads that this is a simple case where the appellant has neglected to comply with court orders. She has annexed to the affidavits copies of several orders made in the lower court matter and copies of applications filed therein.

4. The application was urged orally before me on 12th September 2017. The appellant pleaded inability to provide for the child on grounds that he was a student, who has had to move to court to compel his parents to pay his own school fees. He cited section 94 of the Children Act, Cap 141, Laws of Kenya, saying that he was also a child in college and his inability to pay was temporal. It was submitted that the mother of the child was a person of means, adding that when she got into the relationship with the appellant she knew that he was a student.

5. In reply, the respondent submitted that no orders were made on 8th September 2017 for the arrest of the appellant, nor for the revival of earlier orders on arrest of the appellant. It was argued that the application seeks stay of proceedings and not of the warrant of arrest. It was submitted that no material has been placed before the court to demonstrate that there was a problem with the proceedings being conducted by the lower court. It was further submitted that the appellant was an adult, and not a minor contrary to what the appellant was claiming, adding that no proof had been provided that he was a student. It was further pointed out that the appellant had previously paid some money in purported compliance with the orders of the lower court. It is pleaded that when the lower court directed him to file an affidavit of means, he did not comply.

6. The order that is sought to be set aside in the appeal was made by the lower court on 8th September 2017. On that date the lower court reiterated that it had made an order for issuance of an arrest warrant against the appellant after he had failed to comply with orders made earlier, and declined to make any further orders in the matter until the appellant had been arrested. As it is, no fresh order was made on 8th September 2017. The court merely reiterated an earlier order. The setting aside of the order of 8th September 2017 would have no effect on the more substantive orders, including those for arrest, made earlier.

7. In the papers lodged herein, the appellant has not disputed paternity. The material in the lower court file shows that a paternity test was carried out, which turned positive. He pleads inability to pay. He alleges to be himself a child. I have stumbled upon his birth certificate, serial number 536763, dated 2nd August 1993. It indicates that he was born on 22nd November 1992, which makes him twenty-four years plus. There can be no debate that he is an adult. The fact that he is in college, which is not even sufficiently proved, for what is on record is a letter offering him a place in college without any proof that he actually enrolled by paying college fees and being allocated an admission number, does not make him a child or a minor. There is no evidence that he ever obtained an order extending his parents’ parental responsibility over him beyond his eighteenth birthday. He is adult for all practical purposes, including siring a child, and he should take up his responsibilities as such.

8. Section 94 of the Children Act was cited to persuade me that the appellant ought not to shoulder parental responsibility for now. The lower court had ordered the parties to file affidavits of means, ostensibly so that the court could look into issue of ability to pay, among others, before it could give final orders on whether the appellant should be compelled to pay, or, if it found that he had to pay, to determine how much and when to pay. The appellant in his wisdom chose not to comply with that order, and it was upon that default that the order that he now seeks to have set aside was made. He is the author of his own misfortune. His move to the High Court on appeal was prompted by the consequences of his default at the lower court. There is no doubt abuse of process.

9. He pleads that the respondent is able to shoulder the responsibility for the maintenance of the child. Well, the law is clear. Parental responsibility is shared, in exactly the same manner that the bringing forth of a child into being is an exercise shared by the man and the woman. The child so brought forth is an innocent being, it is the duty of those jointly responsible for its procreation to make its life comfortable and livable in this world regardless of their ability to maintain him or not. Once a child is born, it is up to its procreators to figure out how to cater for its needs. Failure to provide for the child would amount to neglect of the child, and it’s an offence in law.

10. I agree with the respondent, the application before me is confused. It seeks stay of proceedings, yet no case has been made in the affidavit sworn in support of the application nor in the oral submissions made in open court for grant of that order. No statutory provisions were cited to justify the orders sought, nor was any judicial authority mentioned. In the end, I do not find any merit in the Motion dated 12th September 2017. The same is hereby dismissed with costs. The lower court file shall be released to the said court.

DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF NOVEMBER, 2017.

W. MUSYOKA

JUDGE