[2022] KEHC 12852 (KLR)

AW v ST (Civil Appeal 63 of 2019) [2022] KEHC 12852 (KLR) (Family) (8 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12852 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal 63 of 2019

AO Muchelule, J

September 8, 2022

Between

AW

Applicant

and

ST

Respondent

(Being an appeal from the ruling and or decree of the Hon. G.M. Gitonga (SRM) delivered on 17th May 2019 in Nairobi Children’s Court Case No. 309 of 2013)

Ruling

1. The dispute regarding the minor TNW is before the Court of Appeal. The court in Civil Application No E236 of 2021 on March 4, 2022 granted stay of execution of the decree and orders of this court dated June 24, 2021. The stay was for 60 days and on condition that the appeal that the applicant AW had preferred against the respondent ST over the child had been filed and served.

2. The background of the dispute is that the applicant and the respondent are the father and mother, respectively, of the child. The child is about 12 years. The applicant sued the respondent in the Children Court Case No 309 of 2013 at Nairobi seeking joint legal custody and actual custody of the child, care and control and that the respondent be restrained from interfering with access and contact between him and the child. The respondent filed a defence and a counterclaim. She sought legal custody, care and control of the child subject to reasonable access by the applicant. The trial court heard the parties and delivered a judgment on May 17, 2019 granting joint legal custody to the parties; actual custody, care and control to the applicant; unlimited but reasonable access to the respondent; and the respondent to have access on half of all school days which would entail the child visiting the United Kingdom at the respondent’s cost. The respondent had got married and had relocated to the United Kingdom where her husband lives.

3. The respondent was aggrieved by the orders of the trial court and appealed to this court. In a judgment delivered on June 24, 2021 the joint legal custody of the child to both parties was confirmed. The actual, care and control of the child was given to the respondent; with the applicant having unlimited but reasonable access during half of the school holidays with both parties contributing towards travel expenses of the child. The respondent was granted leave to relocate to the United Kingdom with the child, and the applicant was to contribute towards the welfare of the child in terms of maintenance and school expenses. These are the orders that the applicant appealed to the Court of Appeal against, and, following application, obtained the above orders of stay.

4. The present application is dated August 1, 2022 by the applicant seeking that the respondent does produce the child to him for the August 2022 school holidays. What happened was that the respondent had relocated with the child to the United Kingdom. Ideally, the request to have the applicant access to the child during the August 2022 holidays has been overtaken by events.

5. The second prayer was to have the court direct the registry to prioritise the typing and preparation of the proceedings and judgment of this court dated June 24, 2021 to enable the processing of the appeal in the Court of Appeal. That order is purely administrative, but is granted.

6. The question whether or not the record of appeal was filed and served as ordered by the Court of Appeal can only be dealt with by the Court of Appeal. The same is for the question whether or not the respondent complied with the orders of stay that the Court of Appeal issued when she took the child to the United Kingdom.

7. The parties signed an agreement dated June 3, 2022 in which the respondent undertook to comply with the stay order and by which she was to travel to the United Kingdom with the child on July 4, 2022 up to July 27, 2022, and return with the child to Kenya on July 28, 2022. According to the applicant, the respondent had not returned the child. That was what had led to the application for her to produce the child during school holidays in august for him to access him. The problem is that the consent was not filed in court or adopted as order of the court, and therefore the prayer in the application that the respondent be found to be in deliberate breach, and in contempt of the consent, would not hold.

8. The result is that the application dated August 1, 2022 is found not merited and is dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH SEPTEMBER 2022. A.O. MUCHELULEJUDGE