[2017] KEHC 9528 (KLR)
The court held that the respondent's right of access to his children is not contingent upon whether he has provided maintenance. The children also have a right to access their father. The ongoing proceedings in the lower court are the appropriate forum for resolving any outstanding issues, including maintenance. The...
Source-derived case information.
- Citation
- [2017] KEHC 9528 (KLR)
- Parties
- Appellant: F M K; Respondent: M O A
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 67 of 2017
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Child Access, Parental Responsibility, Maintenance Obligations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
F M K
Appellant
M O A
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the lower court erred in granting the respondent access to the child despite allegations of abandonment and lack of maintenance.
- 2 Whether the applicant is entitled to a stay of proceedings in the lower court pending appeal.
Ratio Decidendi
The court held that the respondent's right of access to his children is not contingent upon whether he has provided maintenance. The children also have a right to access their father. The ongoing proceedings in the lower court are the appropriate forum for resolving any outstanding issues, including maintenance. The application for stay of proceedings and for calling up the lower court file was found to lack merit, as the issues remain live before the lower court and no sufficient cause was shown to warrant the orders sought. Accordingly, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 13th September 2017 is dismissed with costs.
- The lower court file to be returned to that court forthwith.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY AND PROBATE DIVISION
CIVIL APPEAL NO. 67 OF 2017
F M K………….APPELLANT
VERSUS
M O A…………RESPONDENT
(Being an appeal filed against the ruling delivered in Nairobi Children Case No. 1055 of 2016 on 8th September 2017 and 11th September 2017)
RULING
1. The application for determination is a Motion dated 13th September 2017. It seeks stay of the proceedings before the lower court, and that the lower court file be called for to determine the legality of the proceedings being conducted in that matter. The interlocutory application is mounted within an appeal filed herein vide a memorandum of appeal dated 12th September 2017 and lodged herein on even date, which seeks that the decision of the lower court delivered on 6th September 2017 be set aside, or, in the alternative the order be varied with regard to the access hours. The gravamen of the application is that the lower court erred in allowing the respondent access to the child the subject of the proceedings, yet he had literally abandoned them and provided no maintenance to them.
2. In reply to the application, the respondent avers that he never lived with the appellant and therefore the issue of his walking away from the minors and parental responsibility does not arise. He pleads that the appellant has used all manner of machinations to ensure that the respondent was not able to access the child nor to offer or provide any sort of support.
3. The application was urged orally before me on 21st September 2017. The appellant pleaded that paternity was not disputed, but the respondent had never lived with the children, nor even seen them. It was argued that access should be a gradual process. The respondent on his part argued that the appellant had refused to comply with court orders on access.
4. It is not in dispute that the respondent is the biological parent of the children in question. He has a right to access the children, and a duty to be available to them. The children too have a right to have access to their father. The issue as to whether he provides for them or not should be immaterial to the question of access. In any event, the cause at the lower court is still alive, indeed there is a hearing scheduled for 15th November 2017. The issues are still alive for determination by the lower court. I am not persuaded that a cause has been made out for grant of the orders sought. It is my finding that the application dated 13th September 2017 is without merit, and I hereby dismiss the same with costs. The lower court file to be returned to that court forthwith.
DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF NOVEMBER, 2017.
W. MUSYOKA
JUDGE