[2016] KEHC 7654 (KLR)
The court found that the applicant failed to demonstrate any new or important matter, mistake, or error apparent on the face of the record to justify review of the orders. The applicant's financial means had already been considered in the previous ruling, and no evidence was provided of a change in circumstances....
Source-derived case information.
- Citation
- [2016] KEHC 7654 (KLR)
- Parties
- Applicant: C L O O; Respondent: B O O
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 19 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Interim Orders Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule, MW Muigai
- Legal Topics
- Child Maintenance, Review of Court Orders, Contempt of Court, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C L O O
Applicant
B O O
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Interim Orders Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated grounds for review of the court's orders under section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules.
- 2 Whether the respondent's mother, not being a party to the proceedings, can be compelled to contribute to the respondent's school fees.
- 3 Whether the applicant's financial means constitute a new matter justifying review.
Ratio Decidendi
The court found that the applicant failed to demonstrate any new or important matter, mistake, or error apparent on the face of the record to justify review of the orders. The applicant's financial means had already been considered in the previous ruling, and no evidence was provided of a change in circumstances. The respondent's mother was not a party to the proceedings, and the court could not issue orders against her without her being joined and heard. The applicant was also in contempt of the existing orders. Consequently, the application for review was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
CIVIL APPEAL NO.19 OF 2015
C L O O ...............................................................................................APPLICANT
VERSUS
B O O. ............................................................................................RESPONDENT
RULING NO. 2
This court, in its ruling dated 6th July 2015 dismissed the applicant’s application for stay of execution of the orders of the Children Court directing him to cater for the respondent’s college fees. The court proceeded to adjust the orders issued by the Children Court to the effect that the applicant pays Kshs.500,000/= directly to the flying school on or before the end of July 2015, and thereafter pay Kshs.100,000/= monthly to the said school until this appeal is heard and determined.
The applicant filed Notice of Motion dated 28th July 2015 under certificate of urgency seeking the review of orders issued by this Court on 6th July 2015 as well as allow the applicant to negotiate with the respondent's school on the mode of payment of the balance of the school fees. He also sought orders that the respondent's mother be ordered to contribute to the respondent's fees as well. The application was based on grounds that the applicant's income cannot satisfy the order of the court thus the prayer to allow for negotiation of the mode of payment with the flying school. He further stated that the respondent's mother was in gainful employment and earns rental income from an apartment and should therefore be made to contribute to the respondent's fees.
The application was vehemently opposed by the respondent through his replying affidavit dated 18th September, 2015. He stated that the applicant herein had clearly violated the orders issued by this court by paying Kshs.200,000/= instead of the Kshs.500,000/= as ordered by the Court. He further averred that the applicant had nor raised new matters or shown sufficient cause, nor was his financial means a new matter or mistake or error apparent on the face of the record so as to warrant review order. He stated that his college was not a party to these proceedings and as such the court could not issue orders compelling the said college to negotiate a mode of payment favourable to the applicant. He further averred that his mother was not a party to these proceedings and unless enjoined, cannot be compelled to contribute to his fees. In any case, he stated that the mother had already paid total of Kshs.994,760/= towards his college fees since enrolment and continues to cater for his upkeep and other needs while the applicant has only paid Kshs.200,000/=. He prayed that the motion be dismissed with costs.
Section 80of theCivil Procedure Actandorder 45 of the Civil Procedure Rules allow for review of decree or order where there has been discovery of new and important matter that was not within the applicant's or court’s knowledge, or where there has been demonstrated mistake or error apparent on the face of the court record, or for any other sufficient reason.
No error or mistake apparent on the face of the record has been alleged by the applicant, neither did he table any new or important matter that had been discovered and that was not within his or the court’s knowledge. The issue of the applicant’s means was fully considered by this court in its ruling of 6th July 2015. The applicant’s affidavit of means and pay slips were placed before the court. The applicant has not shown this court that his financial status has changed since the said ruling was issued so as to warrant a review of the court orders. This court also took into consideration the fact that it was the respondent’s mother who had since enrolment at the Flying School catered for his school fees as well as other needs without the applicant’s contribution. Further, the respondent’s mother was not a party to these proceedings, and no order can issue against her without her being afforded a hearing. I have considered that the applicant is, in any case, in contempt of the orders that he now complains about.
In view of all these, the application for review fails and is hereby dismissed with costs.
SIGNED at NAIROBI this 5TH day of April 2016.
A.O. MUCHELULE
JUDGE
DELIVERED at NAIROBI this 6TH day of April 2016.
M. MUIGAI
JUDGE