[2009] KEHC 2045 (KLR)
The court declined to grant the applicant's prayer for variation of the earlier custody order on an ex parte basis, holding that such a controversial matter required the respondent to be heard. The court emphasized the importance of judicial consistency and the need to avoid sending confusing signals by varying its...
Source-derived case information.
- Citation
- [2009] KEHC 2045 (KLR)
- Parties
- Respondent: Asha Fahiye Farah; Appellant: Hindu Said Ali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 143 of 2009
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay and Variation of Orders
- Outcome
- Application for ex parte variation of custody order declined; directions given for inter partes hearing.
- Legal Topics
- Child Custody, Interlocutory Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Asha Fahiye Farah
Respondent
Hindu Said Ali
Appellant
Procedural Posture
Civil Appeal / Interlocutory Application for Stay and Variation of Orders
Legal Issues
- 1 Whether the court should grant a stay or variation of its earlier order on custody and education of the minor pending hearing of the application.
- 2 Whether the applicant's prayer for variation can be allowed ex parte.
Ratio Decidendi
The court declined to grant the applicant's prayer for variation of the earlier custody order on an ex parte basis, holding that such a controversial matter required the respondent to be heard. The court emphasized the importance of judicial consistency and the need to avoid sending confusing signals by varying its own orders without hearing both parties. The court ordered that the application be served on the respondent and set down for hearing on priority basis, ensuring that both parties would have an opportunity to present their arguments before any substantive orders were made affecting the custody and education of the minor.
Court Disposition
Application for ex parte variation of custody order declined; directions given for inter partes hearing.
Orders
- The applicant's Notice of Motion of 17th August, 2009 shall be served upon the respondent within three days.
- The Registry shall fix the application for hearing within five days of the date hereof.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 143 of 2009
ASHA FAHIYE FARAH……………..…. PLAINTIFF/RESPONDENT
- Versus -
HINDU SAID ALI…………………....……DEFENDANT/APPELLANT
RULING
The applicant’s application dated and filed on 17th August, 2009 came up before the Court on the same date. Learned applicant’s counsel, Mr. Mwakisha, asked the court to certify the matter urgent, and to set it down for hearing on the basis of priority. Counsel had a second prayer, however, which, on account of its contentious nature, necessitated the reserving overnight of this ruling.
Counsel asked for a stay of orders already granted by the Court, i.e prayer No. 2 in the substantive Notice of Motion application of 17th August, 2009, which reads:
“That this Honourable court be pleased to vary and/or set aside the order made herein on5th August, 2009especially as relates to the release of the child to attend school at St. Kevin Hill, Voi”.
On 5th August, 2009 Lady Justice Odero made an order in the following terms:
“That there be a temporary stay of execution of the judgment and order on custody and education of the minor herein issued on 29th July, 2009 in CCT No. 145 of 2009 pending the hearing and determination of this application”.
That order was made in relation to another Notice of Motion application dated 3rd August, 2009.
The applicant, by the earlier application, sought the orders which he, indeed, obtained. It is the applicant, again, who is now seeking a variation of that same order. If this Court were to accede to this request, it would be sending out confusing signals. The Court must always speak reliably, while standing on firm ground, as, out of its pronouncements, the rights of parties are spelt out, and its decisions are precedent – setting.
On this account, the applicant’s second prayer cannot be allowed ex parte as it is sufficiently controversial to require the hearing of both parties.
It is now ordered that the applicant’s Notice of Motion of 17th August, 2009 shall forthwith (and in any case, within three days of the date hereof) be served upon the respondent.
The Registry shall fix the application for hearing within five days of the date hereof.
Orders accordingly.
DATED and DELIVERED at Mombasa this 18th day of August, 2009.
J. B. OJWANG
JUDGE
Coram: Ojwang, J
Court clerk: Ibrahim
For the Applicant: Mr. Mwakisha