[2015] KEHC 4575 (KLR)
The court found that the mother, not the respondent father, was responsible for abandoning the child with the grandmother. The applicant grandmother failed to establish that the respondent father had abandoned the child or that the child's best interests required a stay of execution of the judgment granting custody...
Source-derived case information.
- Citation
- [2015] KEHC 4575 (KLR)
- Parties
- Appellant: E W K; Respondent: J K K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 73 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Child Custody, Parental Responsibility, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E W K
Appellant
J K K
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant grandmother has established grounds for stay of execution of the children's court judgment granting custody to the father.
- 2 Whether the respondent father abandoned the child, justifying the grandmother's continued custody.
Ratio Decidendi
The court found that the mother, not the respondent father, was responsible for abandoning the child with the grandmother. The applicant grandmother failed to establish that the respondent father had abandoned the child or that the child's best interests required a stay of execution of the judgment granting custody to the father. The court noted that neither the applicant nor the mother testified in the lower court despite being served. The application for stay was therefore dismissed, as the applicant did not demonstrate sufficient grounds or a prima facie case for the orders sought.
Court Disposition
application dismissed
Orders
- The application dated 4th November 2013 is dismissed.
- The applicant grandmother shall make arrangements to hand over the child to the respondent father in terms of the judgment of 23rd October 2013.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 73 OF 2013
E W K…………………..APPELLANT
VERSUS
J K K……………………RESPONDENT
RULING
1. The matter herein is a Children’s matter putting the biological father of the child against the material grandmother of the child.
2. A judgement was entered in Nairobi Children’s Case No. 1211 of 2012 on 25th October 2013 in favour of the father as against the grandmother and the mother of the child. Custody, care and control of the minor was granted to the father. The mother was restrained from taking the child out of the jurisdiction, but the grandmother was granted unlimited but reasonable supervised access to the child.
3. The child was born when father and mother living together was husband wife. She came into this world on 31st October 2011 during her parent’s cohabitation. The mother left the father in March 2012, taking the child with her. She was later to leave for Switzerland the same year, 2012, leaving the child with the grandmother. It was the abandonment of the infant by the mother that prompted the father to move the children’s court for custody, care and control.
4. The grandmother of the child was dissatisfied with decision of the lower court, and filed the present appeal on 5th November 2013.
5. She simultaneously filed a Motion dated 4th November 2013 seeking stay of execution of the judgement of 25th October 2013. She argues that the respondent father had abandoned the child at the age of 6 months.
6. The respondent father replied to the application vide an affidavit sworn on 14th November 2013. He denies have abandoned the child, stating instead that it was the applicant who left the matrimonial home with the child and later abandoned her with the aging applicant. He asserts that she kept visiting the child at the applicant’s residence, but was subsequently locked out after the applicant grandmother became hostile.
7. I have noted from the record that it is the mother of the child who left the matrimonial home with the child, effectively taking her away from her father. She subsequently abandoned the infant, then days than one year old with the applicant grandmother. It is therefore not accurate to say that the respondent abandoned the child. If anything it is the mother of the child, and the daughter of the applicant who is guilty of abandonment.
8. I note to that the suit in the lower court was against the applicant grandmother and the mother of the child. The appeal herein is by the grandmother. It would appear that the mother of the child is not party to these proceedings, and is not contesting the orders made by the Children’s court. It is noteworthy to that both the applicant and mother of the child did not testify at hearing at the lower court, apparently even after being properly served.
9. I do not wish to say much on the substance given that the appeal is yet to be heard. A cheaper analysis may preempt the appeal and possible prejudice it.
10. In view of everything that I have said above, and especially in paragraphs 7 and 8, my conclusion is to disallow the application dated 4th November 2013. I am not persuaded that the applicant has established a case for grant of the orders that she seeks. The said application is therefore hereby dismissed. The applicant shall have the costs of the application.
11. The effect of the ruling is that the applicant grandmother shall make arrangements to handover the child to the respondent father in terms of the judgement of 23rd October 2013. The temporary orders made herein on 5th November 2013 are hereby discharged.
DATED, SIGNED and DELIVERED at NAIROBI this 29TH DAY OF MAY, 2015.
W. MUSYOKA
JUDGE
In the presence of ………………………. advocate for the applicant.
In the presence of ……………………. advocate for the respondents.