[2013] KEHC 6644 (KLR)
The court found that the issues raised in the application for stay were the same as those to be determined in the substantive appeal. Granting a stay at this stage would amount to pre-empting the appeal and interfering with the trial court’s discretion without sufficient cause. The applicant had not demonstrated...
Source-derived case information.
- Citation
- [2013] KEHC 6644 (KLR)
- Parties
- Appellant: D N K; Respondent: C S M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 26 September 2013
- Case Number
- Civil Appeal 4 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Child Custody, Stay of Execution, Best Interests of Child
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
D N K
Appellant
C S M
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of the Children’s Court order awarding custody of the minors to the respondent pending appeal.
- 2 Whether exceptional circumstances exist to justify departing from the general principle that custody of young female children should be granted to their mother.
Ratio Decidendi
The court found that the issues raised in the application for stay were the same as those to be determined in the substantive appeal. Granting a stay at this stage would amount to pre-empting the appeal and interfering with the trial court’s discretion without sufficient cause. The applicant had not demonstrated exceptional circumstances to justify a departure from the general principle that custody of young female children should be with their mother. The court therefore declined to grant a stay of the Children’s Court order and dismissed the application.
Court Disposition
application dismissed
Orders
- The application dated 10th February 2012 is dismissed.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL APPEAL NUMBER 4 OF 2012
D N K………………..APPELLANT
VERSUS
C S M………………RESPONDENT
RULING
The application for determination is dated 13th February 2012. In it the applicant, the father of the children the subject of the dispute, would like stay of an order made by the Children’s Court in Kiambu Children’s Case No. 18 of the 2011 awarding custody of the minor’s to the mother, the respondent herein.
The background is that the parties are married to each other. The respondent is a school teacher. It appears that she had an episode of mental disturbance and this is the reason that the applicant is asking to be allowed to retain custody of the children. The children came to be in his custody in July 2011. Their mother had taken them on a journey to Kitui, her original home, when she ran out of money and was forced together with the children to sleep out in the cold. They were rescued by the police and handed over to the father, the applicant herein.
It would appear that this Kitui incident provoked the filing of the Children’s Case at Kiambu. After hearing both sides on an application for custody, the Children’s Court awarded custody of the children to the mother. The court was guided by the general principle stated in the famous case of GIthunguri vs. Githunguri (1981) KLR 598, where it was held that custody of young female children should be granted to their mother unless there are exceptional circumstances. The minors are of tender years for they were below eight years at the time.
The appeal on record challenges that order of the Children’s Court. The court is accused of failing to appreciate the law and facts on the matter.
I have carefully gone through the papers filed in this matter, the ruling impugned in the appeal and application, as well as the submissions made and authorities cited by counsel. The issues raised in the application are the subject of the appeal. I will not pre-empt the appeal by analysing the facts as this goes to the core of the appeal itself.
I am not prepared to interfere with the decision of the trial court at this stage by staying the orders made on 7th February 2012. Let the applicant speed up the hearing of his appeal so that all these matters can be addressed comprehensively. The application dated 10th February 2012 is hereby dismissed. There will be no orders as costs.
DATED, SIGNED and DELIVERED at NAIROBI this 26th DAY OF September, 2013.
W.M. MUSYOKA
JUDGE