[2017] KEHC 240 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 163 OF 2016

F M K.........................................................APPELLANT

VERSUS

F O..........................................................RESPONDENT

[Being an appeal against the ruling and order of E. Kigen, Resident Magistrate, in Eldoret Children’s Case No. 44 of 2013 delivered on 1st December 2016]

RULING

1. This is an interlocutory appeal. The appeal has not been admitted. The appellant has in the meantime moved the High Court to suspend the committal order issued by the lower court. The appellant and respondent have separated; and, they are in the middle of a rancorous divorce. Their three minor children are caught up in the cross-fire.

2. The appellant is aggrieved by the ruling and order of the children’s court made on 1st December 2016. The tussle in the children’s court is over maintenance. The impugned order was two pronged: on the one hand it gave a “chance” to the judgment debtor (appellant) to make some proposals to settle the issue. On the other hand, it committed the appellant to civil jail for a period of thirty days.

3. The appellant filed a memorandum of appeal on 6th December 2016. Contemporaneously with the appeal, he lodged a notice of motion praying for four reliefs: First for “suspension” of the committal order; secondly for an order to take accounts; thirdly, for an order to furnish a fresh report by the Children’s Officer; and, fourthly, for an order to compel the Children’s Court to finalize the trial to “settle all issues in the case”.

4. The motion is expressed to be brought under Articles 51 and 58 of the Constitution; Section 1A of the Civil Procedure Act; Order 43 of the Civil Procedure Rules 2010; and, Sections 89, 90, and 98 to 101 of the Children Act. It is predicated upon a deposition of the appellant sworn on 6th December 2016.

5. The appellant states that the parties were granted joint custody of the minors on 22nd April 2015. He contends that the respondent has remarried or is cohabiting with another man. He states that the respondent and her new partner are residing in the latter’s house. Accordingly, the appellant’s case is that there is no basis to demand rent from him of Kshs 10,000 per month.

6. He also claims that one of the minors has been molested by the new partner. Another minor, D A, was re-admitted to Jomo Kenyatta University, but has been abandoned by the respondent. The appellant contends that that it is in the interests of justice that a fresh Childrens Report be furnished to the trial court.

7. Those matters are detailed at length in the supporting affidavit. The appellant deposes that he is a Government driver. He claims that he lives in some rented premises. The rent is Kshs 10,000 per month. He claims that he spent a considerable part of his salary to pay medical and burial expenses for his late mother; and, college fees for one of the minors. In the meantime he was served with divorce proceedings. The proceedings are in Divorce Cause 7 of 2016 at Eldoret Chief Magistrates Court. Copies of the pleadings are annexed. The appellant alleges that the respondent is cohabiting with a church pastor, David Sanya.

8. Regarding the committal order, he contends that it is unjust because the respondent has not pursued other means of attachment. He claims that on 29th September 2016, the lower court had listed for hearing his motion for variation of the maintenance orders. Instead, the court “refused” to hear him and issued a notice to show cause.

9. The committal order was lifted on terms and by consent on 3rd November 2016. For instance, the appellant was to pay costs of Kshs 7,000; the second born child was to be retained in a mutually acceptable school at Eldoret ; and, the respondent was granted custody of the last born child. Fundamentally, the appellant was to pay “all school fees and child expenses directly or through his counsel”.

10. The appellant avers that the 2nd and 3rd minors opted to leave Particulars withheld, a school run by the respondent. He claims that the school is neither registered by Uasin Gishu County nor does it comply with the Basic Education Act. A letter to that effect is annexed marked FMK 8. The appellant has not managed to place the minors in other schools. At paragraph 32 of the supporting affidavit, he avers that interviews are ongoing. He says he is willing to meet fees in the new schools.

11. In the final analysis, the appellant’s case is that the order of committal is not in the best interest of the children; that it is a scheme contrived to frustrate him; and, that it is only fair that the respondent and her new flame file affidavits of means.

12. The motion is contested. The respondent filed a lengthy replying affidavit on 14th December 2016. She recites the history of the dispute. She claims that the appellant was involved in a nasty road accident. She claims that she footed the medical bills of Kshs 651,072. A fund-raiser netted a paltry Kshs 80,000. She was forced to resign her job as a nurse at Nairobi Hospital and relocated to Kipkarren River. She avers that she financed ¾ of the purchase price; or, the developments on the Kipkarren land.

13. She avers further that the couple established a school, PARTICULARS WITHHELD. It was an “ECD Centre which goes up to class 3”. Due to financial constraints, she and the appellant agreed to admit Pastor Sanya as a partner. She denies having an illicit affair with the pastor.

14. In the divorce proceedings, she accuses the respondent of sexual violence. On 19th December 2012, some goons evicted her from her matrimonial home. She claims that she was only rescued by the OCS Lumakanda Police. She filed a formal complaint. She deposes that the appellant is prone to criminal tendencies.

15. She avers that on 1st December 2016, the appellant informed the trial court that he had Kshs 15,000. He refused to pay the sum and told the lower court to lock him up. The court committed him to civil jail. The respondent avers that her rent is Kshs 10,000. It is for four rooms: two are occupied by her daughters; and, two by her nursing clinic. The clinic used to be housed at her former matrimonial home. He concedes that the respondent had been paying Kshs 87,000 in compliance with the maintenance orders. However, he suddenly stopped doing so.

16. She deposes that the last born is only aged 10, yet the appellant was training her to use guns. She claims the appellant abandoned the minor in Nairobi; and, that she was only rescued by a Good Samaritan.

17. The respondent has annexed a copy of another order dated 21st June 2016 (Annexture FOK 9). The order required the appellant to clear rent arrears of Kshs 180,000; and, to supply the respondent with payment receipts for various school items. She avers that the lower court gave the appellant a number of warnings before it issued the committal order. In her opinion, this court should not accommodate the appellant until he deposits the arrears in court.

18. On 9th November 2017, learned counsel for all the parties made oral submissions. I have paid heed to the records before me, the notice of motion, the depositions and the rival arguments.

19. The matter in the Children’s Court is still pending. And so are the divorce proceedings. Like I stated, the interlocutory appeal has not beenadmitted.Even the record of appeal has not been filed. Granted the circumstances, I cannot make any conclusive findings on the two pending cases in the lower court; or, the pending appeal.

20. I will deal first with the prayers c), d) and e) in the notice of motion. Whether or not the lower court should direct the disputants to take accounts; or, to file affidavits of means is entirely at the discretion of the trial magistrate. I cannot direct the court at this stage on the procedures to adopt. I would be placing the cart before the horse; and, usurping the powers of the trial court. For the same reasons, I cannot direct the learned trial magistrate to call for a fresh report by the Children’s Officer or compel the Children’s Court to finalize the trial to “settle all issues in the case”.

21. I am not saying that there is no merit in the three prayers. I am simply saying that this is an interlocutory appeal that has not even been admitted. The prayers are thus premature. Prayers c), d) and e) in the notice of motion are thus disallowed.

22. That leaves the burning issue of the committal order issued on 1st December 2016. The appellant takes up cudgels on the order because the respondent has not exhausted other modes of execution; and, that the order is unjust.

23. At the heart of this dispute are the interests of the minors. Under Article 53 (2) of the Constitution; and, sections 4 (3) and 83 of the Children Act, the best interests of the child must reign supreme. In addition, the court is now enjoined by Article 159 of the Constitution; and, sections 1A and 1B of the Civil Procedure Act to do substantial justice to the parties. See Winrose Chepng’eno Koske v E.C. (a minor), Eldoret High Court, Civil Appeal 102 of 2016 [2016] eKLR.

24. At the time of hearing this appeal, the appellant had been re-committed to civil jail for 14 days from 30th October 2017. To avoid the ends of justice from being defeated; and, in exercise of powers donated to the court by section 63 of the Civil Procedure Act, I ordered that he be released from custody pending this ruling.

25. The disputants have filed lengthy affidavits and materials before this court. The parties are regurgitating the arguments that are before the lower court. But the notice of motion by the appellant can be determined on a fairly narrow point. I will commence with thepowers of the lower court. The Children’s Court is a creature of section 73 of the Children Act. Section 118 grants the court jurisdiction to “make an order or give a judgment under this Part notwithstanding that any act, matter, thing or circumstances giving rise to such order or judgment did not occur or arise within the area of jurisdiction of the court”.

26. The appellant alleges that the respondent has remarried or is cohabiting with another man. He states that the respondent and her new partner are residing at the latter’s house. Accordingly, the appellant’s case is that there is no basis to demand rent from him of Kshs 10,000 per month. The riposte is that the respondent and Pastor Sanya are only business partners. It is a matter that the lower court will determine on tested evidence. I cannot make a conclusive finding based on conflicting depositions.

27. But it is not contested that the appellant and respondent have parental responsibility over the three minors. See sections 23, 24 and 28 of the Children Act as read with Article 53 (1) (e) of the Constitution of Kenya. Section 98 of the Act empowers the trial magistrate to make orders on maintenance of a child. By dint of section 99, the court has discretion to amend, vary or discharge the maintenance orders.

28. It would not be in the best interests of the minors to suspend the interim maintenance order. See Atwal v Amrit [2011] 2 E. A. 20,Z M O v E I M, Nairobi, High Court Civil Appeal 13 of 2013 [2013] eKLR M N v P A S [2015] eKLR, K W M v R N, High Court, Kisumu, Civil Appeal 16 of 2015 [2015] eKLR M N N v M O K, High Court, Kisumu, Civil Appeal 10 of 2017 [2017] eKLR.

29. Failure to comply with the maintenance order may attract unpleasant consequences. See Hadkinson v Hadkinson [1952] 2 ALL ER 567. The orders may be enforced by attachment or committal to civil jail for example. True, the lower court went for the more draconian method of committing the appellant to civil jail. On the face of it, it is not an illegal order. See B K C v B C S Nairobi, High Court, Civil Appeal 76 of 2012 [2014] eKLR. But I say that very carefully; and, without making a finding because the appeal is still pending.

30. The appellant alleges that he was not heard during the committal proceedings; and, that it is a stratagem contrived to frustrate him. Like I stated, the record of appeal has not been filed. The proceedings that led to the impugned order are not annexed to the notice motion. I cannot thus make an informed finding whether the order was made judiciously. I would be groping in the dark.

31. But I would, gratuitously, advise the trial court to ensure that due process is followed before making far reaching orders. The attention of the lower court is particularly drawn to section 101 (6) and (7) of the Children Act relating to enforcement of the maintenance order. Furthermore, the appellant must be heard because the matter touches on his liberty. The lower court should be guided primarily by the interests of the minors. Like I stated, the divorce proceedings have not been settled; and, the final orders for custody or maintenance have not been made. It is also alleged that the respondent has remarried. The respondent concedes that the appellant has since retired as a Government driver. Has parental responsibility shifted? Is the respondent, for example, to shoulder any financial burden?

32. All those questions and issues can only be determined by the Children’s Court. I thus decline the invitation to interfere with the proceedings at this stage. For all those reasons, prayer b) in the appellant’s notice of motion is also disallowed.

33. The upshot is that the appellant’s notice of motion dated 6th December 2016 is disallowed. In view of the nature of the dispute; and, in the interests of justice, I make no order for costs.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 14th day of December 2017.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Mr. Odhiambo for Mr. Angu for the appellant instructed by Angu Kitigin & Company Advocates.

Ms. Anyango for Mr. Chewok for the respondent instructed by Chemwok & Company Advocates.

Mr. J. Kemboi, Court Clerk.