[2022] KEHC 16340 (KLR)

EOA v JMN (Children's Appeal Case E108 of 2022) [2022] KEHC 16340 (KLR) (Family) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16340 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Children's Appeal Case E108 of 2022

SN Riechi, J

December 15, 2022

Between

EOA

Appellant

and

JMN

Respondent

(An Appeal from the Ruling of Hon . C.C. OLUOCH(CM) of 21. 10. 2022 in Milimani Children's Court Cause No. 1257 of 2022)

Ruling

1. EOA the appellant and JMN the respondent are the biological parents of the minor subject. The respondent herein has lived with the minor from December 2019 when the appella nt left the country for Germany for studies.

2. When schools closed for general elections, the appellant's parents requested to stay with the mirror for a visit at their home in Umoja. When the respondent went to pick the minor after the break, the appellant's parents claimed that they had instructions from the appellant not to release the minor to him.

3. Thereafter the respondent moved to court and filed a plaint and an application dated August 22, 2022 seeking to compel the appellant to return the minor to his actual custody. Upon hearing the application the honourable magistrate delivered a ruling on August 23, 2022, and directed that;i.That pending the inter partes hearing of the application, the minor be returned to the actual custody, care and control of the plaintiff (the respondent herein)ii.That the application be served upon the defendant (the Appellant herein) for inter partes hearing on September 14, 2022. iii.That a comprehensive children's officer's report be prepared and filed.

4. The respondent herein proceeded to effect the above orders of August 23, 2022.

5. The matter came up for hearing on September 14, 2022 but the children's report had not been filed and therefore the matter was stood over to September 22, 2022. On September 22, 2022 the report dated September 5, 2022 had been filed and the court reserved the matter for ruling on the application on October 21, 2022.

6. Before delivery of the ruling scheduled on October 21, 2022, the appellant/defendant herein filed an application dated October 14, 2022 seeking orders;i.That pending the hearing and determination of this application, this honourable court be pleased to stay the present proceedings and defer the ruling scheduled for October 21, 2022. ii.That this honourable court be pleased to direct that a fresh report be prepared by children's officer from children's headquarter preferably in the company of an officer from the Child Welfare Society and/or the area Chief.iii.That this honourable court be pleased to order the attendance of Johnson Ong'ong'a Udoto for cross examination over the attestation of the plaintiff's pleadings.iv.That this honourable court be pleased to make such orders that the end of justice may require.

7. Upon hearing the application the trial court delivered a ruling making orders that:i.That the application be served for directions on October 21, 2022. ii.That delivery of the ruling scheduled for October 21, 2022 is stayed.

8. When the matter came up on October 21, 2022, the trial court delivered a ruling in respect to respondent's/plaintiff application dated August 22, 2022.

9. The appellant being aggrieved by the ruling delivered on October 21, 2022 has filed this instant application dated October 28, 2022 seeking orders that;i.Spentii.That this honourable court be pleased to order stay of proceedings in execution of the ruling rendered on October 21, 2022 in Milimani Children's Case No 1257 of 2022 JMN v EOA pending the hearing and determination of the intended appeal.iii.That this honourable court be pleased to set aside the decision rendered on October 21, 2022 in Milimani Chidren's Case No 1257 of 2022 JMN v EOA pending the hearing and determination of the intended Appeal.iv.That the cost of the application be provided for.

10. The application is premised on grounds on the face of it and supporting affidavit of the appellant sworn on October 26, 2022 by EOA.

11. The appellant briefly states that she is the mother of the minor subject who is 8 years old. She avers that she left Kenya in December 2019 and left the minor in lawful custody of her mother MAA with consent of the respondent.

12. She states that prior to her departure, she agreed with the respondent on a shared custody and access arrangement. She avers that the arrangement worked well until the respondent filed Milimani Children's Case No 1257 of 2022 JMN v EOA on or about August 22, 2022.

13. She states that when the matter came up on October 21, 2022, the honourable magistrate disregarded its own order of October 14, 2022 and proceeded to deliver a ruling based on biased and defective children's report.

14. She states that been aggrieved by the decision of the trial magistrate on October 21, 2022, she has approached this court for review of the orders as it is not in the best interest of the child .

15. The respondent opposed the application and filed a replying affidavit by JMN sworn on November 16, 2022. He briefly states that when the matter came up for ruling on his application dated August 22, 2022, the appellant's application dated October 14, 2022 was not before court and hence the court directed that the same be mentioned on November 23, 2022. He referred to annexed and marked JMN -4 copy of the ruling.

16. He states that the said ·order staying the ruling was a system generated order owing to the e-filing system hence the allegation by the appellant that the court defied its own order is misleading before this court and only aimed at delaying this matter since the court addressed itself on the issue and directed a mention on the November 23, 2022 for directions.

17. By consent of parties this court directed that the application be canvassed by way of written submissions. The parties filed their respective submissions through advocates on record. I have carefully analyzed and considered the submissions and case law in support.

Analysis and Determination. 18. Having analyzed the application, affidavits and submissions the main issues for determination are:i.Whether this court should make an order of stay of proceeding in execution of ruling rendered on October 21, 2022 in Milimani Children's Case No 1257 of 2022 JMN v EOA.ii.Whether this court should set aside the decision rendered on October 21, 2022.

19. This application has been filed pursuant to section 99 of the Children Act. The said section provides as follows:The court shall have power to impose such conditions as it thinks fit to an order made under this section and shall have power to vary, modify or discharge any order made under section 98 with respect to the making of any financial provision, by altering the times of payments or by increasing or diminishing the amount payable or may temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the court thinks fit."

20. To determine this issue I will refer parties to relevant provisions of law. Grant of stay of execution of an order pending appeal is discretionary. Order 42 rule 6 (2) of the Civil Procedure Rules contains the factors that the court must consider in exereising its discretion in determining whether or not to grant a stay of execution. Order 42 rule 6 (2) provides;(2)No order for stay of execution shall be made under subsection (1) unless-a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.such security as the court order for the due performance of such decree or order as may ulti'mately be binding on him has been given by the applicant"

21. Beyond the requirements of order 42, this being a matter concerning a child, the Court is enjoined by the Constitution of Kenya 2010 and the Children Act, to consider the best interests of the Children. TheConstitution of Kenya 2010 provides at article 53(2) that:

22. A child's best interests are of paramount importance in every matter concerning the child.

23. The Children Act elaborates further at section 4(3) that:"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

24. The first issue for consideration is whether application for stay was sought without considerable delay. The order appealed against was delivered on October 21, 2022. Both the memorandum of appeal and the application herein were filed on October 28, 2022. I am therefore satisfied that the application has been made timeously and without unreasonable delay.

25. On the issue of substantial loss, the appellant/applicant, has expressed her concerned that the decision made in the ruling was not in the best interest of the child . She submitted that the trial court ignored all the salient facts before rendering its decision which put the minor's safety and well-being in jeopardy.

26. On his part, respondent argued that the at the date of delivery of the ruling the trial court had not received the application in its file. Respondent submitted that when counsel for the appellant appraised the court on existence of a cross application and existing interim orders, the court noted the same and directed that the matter be mentioned on November 23, 2022 for directions on the application.

27. Respondent's counsel submitted that the trial court did notdisregard its orders since it took note of the submissions of the appellant through her counsel.

28. I will state that theissue of substantial loss cited in the case of Daniel Chebutuk Rotich & 2 others v Emirates AirlinesCivil Case No 368 of 2001. In the case of Adah Nyabok v Uganda Holding Properties Limited [2012] eKLR, Mwera J (as he then was) stated that:"Demonstrating what substantial loss is likely to be suffered, is the core to granting a stay order pending Appeal"

29. The case before court involves the custody of a minor. Reference to substantial loss must be quantified from the point of view of the affected child, who is subject of the orders being appealed against and is the one likely to suffer. I note that appellant herein has submitted that the impugned orders granted on October 12, 2022 are not in the best interest of the child.

30. This court takes note that the minor is already in custody of the respondent since the orders of October 21, 2022 were effected. I am therefore not persuaded that this court should disturb the said orders as the same will not be acting in the best interest of the minor subject who is already in custody of the respondent. It is only fair and just that the status quo be maintained pending appeal.

31. At this stage, this court will not dwell on the grounds on which the trial court granted the orders so as not to prejudice the hearing of the intended appeal. In the premise notice of motion dated October 28, 2022, is hereby dismissed with no order as to costs.

DATED AT NAIROBI THIS 15TH DAY OF DECEMBER 2022. SN RIECHIJUDGE