[2023] KEHC 24975 (KLR)

DKK v MM (Civil Appeal E016 of 2022) [2023] KEHC 24975 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24975 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Civil Appeal E016 of 2022

JR Karanja, J

November 9, 2023

Between

DKK

Appellant

and

MM

Respondent

Ruling

1. Pursuant to the decree issued on 8th January 2021 in PMCC Children Cause No. 9 of 2020, the Applicant/ Defendant/ Appellant was ordered to be paying a sum of Kshs. 7,500/- for the upkeep of the Minor inclusive of the sum for clothing and food and to also provide medical care for the Minor and in the alternative take out a National Health Insurance Fund (NHIF) card covering the Minor.

2. Being dissatisfied with this order the Appellant filed a Notice of Motion dated 9th February 2022 seeking “interalia” setting aside, annulment and/or variation of the impugned decree/ judgment. To date, the Application remains pending although it was mentioned for hearing on 1st March 2022 but did not proceed. In the meantime, the Plaintiff/ Respondent took out a Notice to Show Cause directed at the Applicant. The hearing thereof was slated for 5th July 2022 when there was indication from the Applicant that his aforementioned Notice of Motion was due for hearing. This was countered by the Respondent who slated that what was actually coming up for hearing on that date was Notice to Show Cause. The Applicant was not present in person but his advocate was in court at the time.

3. Apparently, the Notice to Show Cause was in respect of a sum of either Kshs. 150,000 or Kshs. 120,000/- which the Applicant had allegedly failed to pay. The trial court noted that payment for 14 days had been made by the Plaintiff/Respondent and immediately committed the Applicant to Civil Jail for 14 days.This turn of events prompted the present application dated 7th July, 2022, in which the Applicant essentially seeks a stay of execution of the Committal order made on 5th July, 2022 and/ or stay of further proceedings in the subject cause pending hearing and determination of this appeal vide the memorandum of appeal dated 7th July, 2022. When the application came up for inter-parties hearing on 14th July 2022 it did not proceed. However, the Court ordered for the release of the Applicant on condition that he deposits Kshs. 75,000/- in the subject cause whose dispensation would be determined by the trial court.

4. The grounds in support of the application are set out within the body of the appropriate Notice of Motion and are fortified by the Applicant’s supporting affidavit deponed on 7th July, 2022. The hearing proceeded by way of written submissions with both sides filing their respective submissions through Cheruiyot Melly and Company Advocates for the Applicant and Chemwok and Company Associates for the Respondent.Having considered the application on the basis of the supporting grounds and the rival submissions and with regard to the main prayer four (4) of the Notice of Motion, the duty of this court was to reconsider the matter (afresh) on the basis of the material presented before the trial court and arrive at its own conclusion in determining whether or not the Applicant has established the necessary requirements and/or ingredients for stay of execution and/or proceedings pending the hearing and determination of the appeal.

5. Rule 6 of order 42 of the Civil Procedure Rules is the applicable provision of the Law in such circumstances. Under rule 6(1) no appeal shall operate as a stay of execution or proceedings under decree or order unless an Applicant shows sufficient cause for stay. The ingredients or requirements set out in rule 6(2) have to be demonstrated and established for an applicant to be deemed to have provided sufficient cause for grant of stay of execution or proceedings pending appeal in addition or complementary to any other sufficient cause. The Applicant’s supporting grounds, averments and submissions indicate that the impugned committal order was irregularly issued there having been no valid notice to show cause and there having been an outstanding application dated 9th February 2022 for setting aside of the ex-parte judgment issued by the trial court in the subject cause.

6. There is also indication that the Applicant was denied an opportunity to be heard on the Notice to Show Cause thereby occasioning him a serious miscarriage of justice and violating his constitutional rights of fair hearing and liberty for which he has already suffered or will suffer substantial loss.The Respondent’s objection to the application as may be deciphered from his argument is anchored on his contention that the proceedings leading to the issuance of the impugned order were conducted regularly and being a cause involving a child the trial court’s exercise of discretion could not be faulted as it was in the child’s best interest and in accordance with section 91 of the Children Act which basically provides for a court’s power to make maintenance orders.

7. Indeed, the impugned decree for which the material Notice to Show Cause was issued against the Applicant arose from a maintenance order made for the benefit of the subject child. Such maintenance refers to the supply of the necessaries of life for a child including adequate diet, shelter, health, medical services and education.Any parent or guardian of a child may apply to the children’s court for maintenance orders against a person who has a duty to maintain the child. Herein, the respondent being the guardian of the child moved the court for maintenance orders against the Applicant who being the father of the child has a duty to maintain the child. Such is a shared duty between the mother and father of the child whether married or not. Both have equal parental responsibility for the child as decreed by the constitution.

8. It would therefore follow that the payment of a specified sum of money towards the maintenance and welfare of a child in keeping with parental responsibility cannot possibly occasion an applicant substantial loss respecting what is clearly a money – decree.In any event, in making an order for maintenance or upkeep of the child, a children’s court would invariably consider the financial capabilities and means of either of the responsible parties.The Applicant has clearly failed to demonstrate and establish the element or ingredient of substantial loss for this court to exercise discretion in his favour on that account even if he has demonstrated the will and intention to provide security for the due performance of the impugned decree and/ or order.

9. However, the right to be heard is not only a constitutional tenet but also of natural justice. The proceedings conducted by the trial court with respect to the Notice to Show Cause in the absence of the Applicant amounted to a breach of his right to be heard and/or his right to a fair hearing. His Advocate may have been present during the proceedings, but it was the Applicant who was personally required to show cause as to why he should not be committed to jail in execution of the decree passed against him. He suffered a serious miscarriage of justice when he was imprisoned for a period of two weeks (14 days) without being accorded an opportunity to be heard in defence of his alleged failure to pay the decretal amount. It is for this reason that this court would find that he has established and showed sufficient cause for exercise of discretion in his favour to the extent that an order of stay of execution pending appeal is hereby issued in terms of prayer four(4) of the Notice of Motion.

10. For the avoidance of doubt, the stay order is in respect to the execution of the impugned decree by way of Notice to Show Cause and Committal to prison of the Applicant/ Judgment Debtor. The proceedings in Kapsabet Children’s Case No. 9 of 2020 are not covered by the stay order and may continue to logical conclusion unless otherwise ordered by the trial court.The parties shall bear own costs of the application,Ordered accordingly.

DELIVERED AND DATED THIS 9TH DAY OF NOVEMBER, 2023. J. R. KARANJAH,JUDGEIn the Presence of:1. Mr. Kiprono for the Applicant.