[2009] KEHC 1762 (KLR)
The court found that the appellant had filed an appeal, thus satisfying the first condition for a stay of execution. However, the appellant failed to demonstrate that he would suffer irreparable loss if the stay was not granted, particularly since the maintenance order was not a lump sum payment and any sums paid...
Source-derived case information.
- Citation
- [2009] KEHC 1762 (KLR)
- Parties
- Appellant: Edwin Maina; Respondent: Consolata Murugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Child Maintenance, Stay of Execution, Welfare of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Maina
Appellant
Consolata Murugi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the subordinate court's maintenance order pending appeal.
- 2 Whether the appellant has demonstrated that he will suffer irreparable loss if the stay is not granted.
- 3 Whether the welfare of the children overrides the appellant's claim of irreparable loss.
Ratio Decidendi
The court found that the appellant had filed an appeal, thus satisfying the first condition for a stay of execution. However, the appellant failed to demonstrate that he would suffer irreparable loss if the stay was not granted, particularly since the maintenance order was not a lump sum payment and any sums paid could be set off should the appeal succeed. The court emphasized that the welfare of the children is paramount and that providing for their maintenance does not constitute irreparable loss to the appellant. Consequently, the application for stay of execution lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 33 of 2009
EDWIN MAINA …………………………………….…………… APPELLANT
versus
CONSOLATA MURUGI ……………………………….…… RESPONDENT
RULING
This application is based on an appeal which EDWIN MAINAhas preferred to this court against a decision of the subordinate court in which A. O. A. Aminga, learned Resident Magistrate at Limuru, ordered Maina on 30/4/2009 to pay a monthly sum of Shs. 50,000/= for the maintenance, and also to meet costs of education for his three children who are currently under the custody of his estranged wife, CONSOLATA MURUGI(‘the respondent’).
Maina now seeks an order to stay the execution of the aforementioned order pending the hearing and determination of his appeal. He also prays to be allowed to pay a monthly sum of Shs. 15,000/= instead for maintenance and in addition thereto, to pay the school fees for his three children. Only one child is of school going age.
Maina who claims to have provided medical insurance for the three children and whose offer to pay Shs. 15,000/= was rejected by the respondent relies on the grounds that he stands to suffer irreparable loss should the orders which he seeks not be granted, and also that his appeal stands to be rendered nugatory.
The respondent who opposes the application is of the view that the awarded is reasonable for the children must be provided for.
In an application of this nature, the applicant must satisfy the court that he has an appeal on the record; that unless the order which he seeks is granted, he stands to suffer loss, and also that his appeal will otherwise be rendered nugatory. There is no doubt that he filed his appeal on the 8th of May, and he therefore satisfies the first condition.
I have considered his grounds and deposition as well as the contents of the replying affidavit and it is clear that he has not complied with the contentious order.
Be that as it may, I need no reiterate that the welfare of the children is paramount, and I am unable to see how providing for his children would cause him irreparable loss, or even render the appeal nugatory especially because this is not a one off payment and in the circumstances, should he succeed in his appeal, the amount that he will have paid will be set off against whatever sum he may be ordered by the court to pay.
This application lacks in merit. I dismiss it with costs.
Dated and delivered at Nairobi this 6th day of August 2009.
JEANNE GACHECHE
Judge
Delivered in the presence of:
For the applicant – Miss Machio
For the respondent - Mr. Omulele holding brief for Mrs. Kemunto