[2022] KEHC 16275 (KLR)

DK v HKM (Civil Appeal E109 of 2021) [2022] KEHC 16275 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16275 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E109 of 2021

TW Cherere, J

December 15, 2022

Between

DK

Appellant

and

HKM

Respondent

(Being an appeal against the order in Nkubu Children’s case No. 20 of 2020 by Hon. E. Ayuka (SRM) on the 15th July, 2021)

Judgment

1. The appellant herein was involved in a civil dispute with the respondent on maintenance of their 2 children. The respondent filed a case in the lower court seeking for several orders from the court which culminated in the court rendering a judgment on August 13, 2020 and issuing the following orders: -a.The plaintiff shall have actual and legal custody of the minors.b.The plaintiff shall provide shelter, food and clothing for the minors.c.The defendant shall pay school fees for the minors.d.The defendant shall include the minor in his medical cover.e.The defendant shall pay the plaintiff KES 5,000/= per month being his contribution to the maintenance of the minors.f.The defendant shall have visitation rights over the minors.g.Each party shall bear his/her own costs.

2. Respondent moved the court to have the respondent satisfy the decree and upon hearing the parties, the court on July 15, 2021 committed appellant to civil jail for failing to comply with the court decree.

3. Aggrieved by the said order, appellant appeals to this honourable court and sets forth the following grounds: -1. The learned trial magistrate erred in law and in fact by committing the appellant to civil jail without considering the contents of the appellants replying affidavit dated July 14, 2021 in Nkubu Children’s case No 20 of 2020. 2.The learned trial magistrate erred in law and in fact by disregarding the payments by the appellant to the respondent in Nkubu children’s case No 20 of 2020. 3.The learned trial magistrate’s erred in law and fact by committing the appellant to civil jail for a period of 3months for alleged failure to pay the decretal amount whereas the evidence on record showed that the appellant had fully honored his obligation and paid all monies via Mpesa as required in the decree and notice to show cause dated June 21, 2021. 4.The appellant prays for orders that:1. This appeal be allowed2. The ruling and order dated July 15, 2021 be set aside and/or vacated.

Analysis and determination 5. The appeal proceeded by way of written submissions and the appellant in his submissions argues that he adhered to the court’s judgment by paying the minor’s school fees, including them in his NHIF cover and paying a monthly maintenance fee of Kshs 5,000/= to the respondent and sometimes sending extra amounts.

6. The appellant argues that on the June 25, 2021, the appellant was astonished when he was served with a notice to show cause dated June 21, 2021, the allegations therein being that the appellant had failed to pay the sum of Kshs 55,000/= being the monthly maintenance at KES 5,000/= per month for eleven months (August 2020 to June 2021).

7. Appellant states that upon being issued with the notice to show cause, he responded via a replying affidavit dated July 14, 2021 where he attached Safaricom M-pesa statements showing that between August, 2020 and June 2021, he had on diverse dates every month sent a total sum of KES 80,942/= to the respondent in fulfilment of the judgment of the court which documents are before the court.

8. That whereas the respondent was claiming non-payment of KES 55,000/= the appellant demonstrated that he had indeed sent her KES 80,942/= being KES 25,000/= more than the sum claimed in the notice to show cause.

9. The appellant argues that the trial court despite having that evidence on record proceeded and ordered that the appellant be committed to civil jail for failure to pay the respondent Kes 55,000/= yet respondent neither disputed the veracity of the said M-Pesa statements which showed that she had received a total sum of KES 80,942/= between August 2020 and June 2021 nor did the trial court call into question the validity of the Mpesa statements.

10. Appellant further submits that he paid to court KES 55,000/= before his release from the civil jail which amount was released to the respondent, and urges that the said sum should cover payment for 11 months.

11. Respondent opposed the appeal by way of written submissions filed on December 13, 2022.

12. This being a first appeal, the role of this court is to re-evaluate and subject the evidence to afresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. (See Selle vs Associated Motor Boat Co [1986] EA 123 and Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] e KLR).

13. In Peters v Sunday Post Ltd [1958] EA 424, the court held that: -'Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide'

14. I have considered the grounds of appeal, record of appeal as well as the written submissions filed by appellant and the issue for determination is whether the order made on July 15, 2021 committing appellant to civil jail was merited. .

15. Section 38 of the Civil Procedure Act provides for committal to civil jail of a judgement debtor in execution of a money upon giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison. (See Solomon Muriithi Gitandu & Another vs Jared Maingi Mburu [2017] eKLR and Braeburn Limited -v- Gachoka and another (2007);

16. The appellant’s major contention in this case is that he presented enough evidence to show that he had paid the outstanding maintenance by filing affidavit before court and annexing M-pesa statements as prove before court.

17. The court in Grand Creek LLC & Another vs Nathan Chesangmoson [2015] eKLR held that -‘In all cases where order 22 rule 18(1) of theCivil Procedure Rulesapplies, a notice must be served upon the person against whom execution is applied requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. It should be noted, however, that there must have been an application for execution of a decree for payment of money by arrest and detention in prison of a judgment-debtor. And order 22 rule 31 will come into play where the court, instead of issuing a warrant of arrest, decides to issue a notice calling upon the judgment-debtor to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison. But where the judgment-debtor does not appear as directed in the notice, the court will issue a warrant for his arrest. This rule follows after section 38 and 40 of the Civil Procedure Act. The warrant of arrest is to bring the judgment-debtor to court and it is not an automatic committal to prison because the court will still be required to satisfy itself of all the requirements of order 22 rule 33 and rule 34 of the Civil Procedure Rules. The proceedings under order 22 rule 34 act as the safeguard against denial of liberty in execution of a decree without due process.

18. I have perused the record of the lower and note that in response to the notce to show cause, appellant filed a replying affidavit on July 31, 2021 demonstrating that he had paid up. The said affidavit was not challenged and his committal to civil jail was therefore not warranted.

19. As execution by way of arrest and committal to prison deprives the debtor his liberty, it can only be issued in the clearest of cases and thus was not one of them.

20. In the end, the appeal succeeds. Respondent is condemned to pay the costs of this appeal.

DELIVERED THIS 15TH DAY OF DECEMBER,2022. WAMAE TW CHEREREJUDGEAppearancesCourt Assistant - KinotiFor Appellant - Mr Muthomi for Muthomi Gitari & Co AdvocatesFor Respondent - Mr Otieno for Otieno C & Co Advocates