[2021] KEHC 3511 (KLR)
The High Court declined to grant the applicant's request for an order compelling the respondent to pay Kshs. 147,000 in school fees arrears at the interlocutory stage. The court found that there was no evidence before it that the respondent had breached the trial court's judgment regarding parental responsibility...
Source-derived case information.
- Citation
- [2021] KEHC 3511 (KLR)
- Parties
- Applicant: EN; Respondent: JM
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Children's Appeal Case 1 of 2020
- Procedural Posture
- Children Civil Appeal / Interlocutory Application (notice of Motion) Pending Appeal
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Parental Responsibility, Child Maintenance, School Fees Dispute, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EN
Applicant
JM
Respondent
Procedural Posture
Children Civil Appeal / Interlocutory Application (notice of Motion) Pending Appeal
Legal Issues
- 1 Whether the respondent should be compelled to pay Kshs. 147,000 in school fees arrears for the minors at the interlocutory stage.
- 2 Whether the High Court should entertain the application or defer to the trial court for enforcement of its orders.
- 3 Whether there is evidence of breach of the trial court's judgment by the respondent.
Ratio Decidendi
The High Court declined to grant the applicant's request for an order compelling the respondent to pay Kshs. 147,000 in school fees arrears at the interlocutory stage. The court found that there was no evidence before it that the respondent had breached the trial court's judgment regarding parental responsibility and payment of school fees. The trial court had already clarified the apportionment of parental responsibility and the choice of school based on the respondent's financial capacity. The High Court held that enforcement of the trial court's orders should be sought in the trial court, not through an interlocutory application in the appellate court. The court emphasized that its...
Court Disposition
application dismissed
Orders
- The application dated 19th March 2021 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CHILDREN CIVIL APPEAL NO. 1 OF 2020
EN ....................................................................................................APPLICANT
VERSUS
JM.................................................................................................RESPONDENT
RULING
1. In her Notice of Motion dated 19th March 2021, the applicant prays that the respondent be compelled to pay the minors school fees amounting to Kshs. 147,000 which is in arrears. The other prayer has been overtaken by events.
2. The application is supported by the sworn affidavit of the applicant dated the same date. The said affidavit has given a chronology of the events in this matter. The trial court after hearing both parties apportioned parental responsibility to the applicant as well as the respondent. The respondent was to cater for education and its ancillary expenses as well as medical and monthly upkeep of Kshs. 5000.
3. From the said affidavit it appears that there was an application for contempt against the respondent for failing to comply with the court’s judgement. The court however did not find him in contempt as he had complied.
4. The court went further to clarify that the school which the minors ought to attend should be that which the respondent was able to meet its fees and other related expenses. The applicant it appears was not satisfied with the said ruling and she has filed this appeal.
5. The respondent in his replying affidavit dated 26th April 2021 opposes the application on the grounds that he has always complied with the judgement of the trial court and has paid fees at [Particulars Withheld] primary school in which he is able to meet its expenses and was within his capacity. That he has gone ahead to purchase uniforms and the bags for the minors.
6. The applicant however according to the respondent is not happy with the said school but instead she wants the minors to attend [Particulars Withheld] School which he cannot afford. He proposes that he was willing to pay school fees equivalent to what he has paid at [Particulars Withheld] primary school and the applicant to settle the difference so that the children could go to [Particulars Withheld] School which the applicant desires.
7. The court directed the parties to file written submissions which they have complied. The court has perused the same which are more less consistent with their opposing affidavits and the court shall not wish to reproduce them here.
8. The application in my humble view does not disclose why the court should allow it at this interim stage. If the applicant has not complied with the trials court orders and is in arrears of Kshs. 147,000 why doesn’t the applicant go back to the same court to seek compliance? This is an appeal and this court unless otherwise should concern itself with the appeal and not interlocutory application which the trial court ought to deal with.
9. In any case there is no evidence before me that the respondent has breached the trials court judgement and this court should in some sense intervene. The trial court directive is clear on apportionment of parental responsibility. I presume that the applicant may not be happy with that and that is why she filed this appeal. That then should await the outcome of the appeal.
10. The issue of which school the minor should attend was clarified by the trial court and if the appellant was not happy then it should form I suppose a ground of appeal.
11. For now, this court does not find merit in this application and the same is hereby dismissed with no orders as to costs.
Dated signed and delivered via video link at Nakuru this 4th day of October 2021.
H K CHEMITEI
JUDGE