[2011] KEHC 3577 (KLR)
The court found that the applicant failed to provide sufficient evidence regarding his alleged loss of business and inability to pay the maintenance ordered. The applicant did not disclose the nature of his business, his income, or details of how and when he lost the business. The court emphasized that granting a...
Source-derived case information.
- Citation
- [2011] KEHC 3577 (KLR)
- Parties
- Appellant: Benjamin Tumo; Respondent: Ann Wanjiku
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 187 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application for stay of execution dismissed
- Judges
- SP Ouko
- Legal Topics
- Child Maintenance, Stay of Execution, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Tumo
Appellant
Ann Wanjiku
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the maintenance order pending appeal.
- 2 Whether the applicant demonstrated substantial loss if the stay is not granted.
- 3 Whether granting a stay is in the best interests of the child.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence regarding his alleged loss of business and inability to pay the maintenance ordered. The applicant did not disclose the nature of his business, his income, or details of how and when he lost the business. The court emphasized that granting a stay of execution would not be in the best interests of the child, as maintenance is intended for the child's welfare. Consequently, the application for stay was declined, and the appellant was advised to expedite the appeal process for a determination on merit.
Court Disposition
application for stay of execution dismissed
Orders
- Application for stay of execution is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO.187 OF 2010
BENJAMIN TUMO..................................................................APPLICANT/APPELLANT
VERSUS
ANN WANJIKU..........................................................................................RESPONDENT
RULING
The Children Court at Maralal in the Senior Resident Magistrate Children Case No.5 of 2010 ordered the applicant to pay Kshs.5,000/= per month for the maintenance of the applicant’s child with the respondent.
The matter proceeded exparte and the applicant was aggrieved. He has filed this appeal but in the meantime, he is seeking that the above orders be stayed pending the hearing and determination of the appeal herein. His main ground for seeking a stay of execution is that he is a man of straw who will not be able to honour the terms of the order; that the trial court did not hear him; that before, this application was argued expartewhen the respondent failed to respond to it or attend to oppose it.
In the plaint in the lower court, it was averred by the respondent that the applicant is working for gain in Maralal, which was admitted in the applicant’s defence. As a matter of fact, the applicant deposed that he had been remitting to the respondent Kshs.4,500/= per month for the maintenance of the child. That he continued to do so until February, 2010 when he stopped due to loss of business.
In making a maintenance order, the court is guided by the considerations listed in Section 94(1)(a) to (l) of the Children Act, which includes, income, earning capacity, financial needs and obligations. The applicant who admitted having been making a monthly maitenance contribution of Kshs.4,500/= now claims that he has no capacity due to loss of business.
A stay of execution in civil cases will be granted where the court is satisfied that the applicant will suffer substantial loss if the order of stay is not granted. The applicant has not disclosed what business he was engaged in, the income from that business and how or when he lost the business. Without that evidence and bearing in mind that a stay of execution will not be in the best interest of the child, I decline to grant the orders sought. Instead the appellant is urged to expedite the appeal process with the help of the registry so that it may be heard and determined on merit expeditiously.
I make no orders as to costs.
Dated, Delivered and Signed at Nakuru this 1st day of March, 2011.
W. OUKO
JUDGE