[2021] KECA 1081 (KLR)

IN THE COURT OF APPEAL

AT NYERI

CORAM: OUKO (P), NAMBUYE & OKWENGU JJ.A.)

CIVIL APPEAL (APPLICATION) NO. 83 OF 2020

BETWEEN

FG....................................................1STAPPLICANT/RESPONDENT

PGM .............................................2NDAPPLICANT/RESPONDENT

AND

OGM ....................................................RESPONDENT/APPELLANT

(Being an application for stay of execution against the ruling (orders) of the High Court at Kerugoya (Hon. L. W. Gitari, J.) dated 18thMay 2020

in

Kerugoya HCCA No. 40 of 2017)

********************************

RULING OF THE COURT

On 5th November 2020, the Notice of Motion dated 21st August 2020 came before us for hearing and determination. The motion is brought under section 3A of the Appellate Jurisdiction Act and under Rule 5(2)(b) of the Court of Appeal Rules 2010andall other enabling provisions of the law. The motionsubstantively sought orders:

“3. That the Honourable Court be pleased to stay execution of the ruling and or orders made by the High Court at Kerugoya in Civil Appeal No. 40 of 2017 on 14thAugust, 2020 pending the hearing and determination of the appeal.

4. That the Honourable Court be pleased to stay execution of the judgment delivered on 18thMay, 2020 pending the hearing and determination of the appeal lodged by the applicants.

5. The cost of this application be in the appeal.”

The application is supported by grounds on its body and a supporting affidavit sworn by PGM together with annextures thereto; and a supplementary affidavit sworn by the same PGM on 27th October 2020 together with annextures thereto. It has been opposed by the respondents replying affidavit sworn on 23rd October 2020 together with annextures thereto. The application was canvassed virtually through the rival pleadings, written submissions and legal authorities relied upon by the respective parties in support of their opposing position without oral highlighting.

On the 5th November 2020, we considered rival pleadings, written submissions and legal authorities relied upon by the respective parties in support of their opposing positions at the conclusion of which we granted an interim order as follows:

“In the meantime, given that the matter concerns custody of a minor who has been living with the applicants for about 6 years now, we issue an order of temporary stay of execution of the judgment delivered by the High Court on 18thMay, 2020 and the order of 14thAugust, 2020, and direct that the applicants shall have interim custody of the minor pending the delivery of this court’s ruling on 18thDecember 2020. ”

We reserved reasons for the ruling which we now proceed to render as hereunder.

The background to the application albeit in a summary form and which also forms the core of the applicants’ submissions in support of the application is that applicants are natural grandparents of the KGW (the minor). The minor was handed to the applicants after the demise of her mother on the very day that she was born. The applicants quietly and peacefully stayed with the minor until the year 2017, when the respondent who claimed to be her biological father, filed a civil suit no. 16 of 2017 in the Magistrates Court at Kerugoya substantively seeking orders that may be paraphrased that:

1) He be granted the legal and actual custody over KGW, the minor.

2) The applicants do deliver and or surrender the minor to the respondent.

3) The applicants be restricted from denying him access to the minor.

4) He be allowed to reside with the minor at his residence.

The applicants filed a defence to the respondents claim and a counterclaim seeking an order granting them full legal custody of the minor. At the conclusion of the trial, the learned trial magistrate dismissed the respondents claim in favour of the applicants’ counterclaim.

Aggrieved, the respondent appealed to the High Court at Kerugoya in Civil Appeal No. 40 of 2017. The first appellate Judge upon reevaluating and analyzing the record, on 18th May, 2020 reversed the findings of the learned trial magistrate and substituted them with orders that:

(i) The judgment of the trial magistrate is set aside and substituted with an order dismissing the counterclaim with no order as to costs.

(ii) Judgment is entered for the plaintiff as prayed on the plaint dated 5thApril 2017 with no order as to costs.

The applicants were aggrieved and they timeously filed a notice of appeal dated 29th May 2020, intending to appeal against the whole of the said decision. They moved to the same High Court and filed an application seeking an order for stay of execution of the orders of the High Court dated 18th May 2020, but this application was dismissed by the High Court on 14th August, 2020. The applicants were once more aggrieved and filed a notice of appeal dated 15th August 2020 intending to appeal against the entire ruling.

To buttress the above background and submissions, and in support of their argument that they are best suited to have custody, care and control of the minor considering that she is a female child, the applicants rely on two High Court decisions namely E. K. K. vs. K. M. [2012]eKLR and K. M. M. vs J. K. [2016]eKLR, both reechoing the principle of law that in all court proceedings where issues involving a child are in controversy, the “welfare” of the child is of paramount consideration.

In rebuttal, the respondent contends that, he is the biological father of the minor, as he was cohabiting with the mother of the minor and was present when the minor was born on 8th July 2014. He concurs with the applicants’ assertion that the minor’s mother passed on shortly after giving birth to the minor, and explains that the litigation resulting in this appeal was triggered by the applicants’ refusal to hand over the minor to him after he had paid bride price demanded of him by the applicants.

Further, that the application is incompetent as presented as neither the decree of the judgment issued on 18th May, 2020 nor that of the ruling issued on 14th August, 2020 were annexed; and that the conditionality set by the Court in both of those processes expired as they were to last for fourteen (14) days from the date of those orders and, therefore, there is nothing to stay. It is also his argument that the intended appeal is frivolous as the judgment of the Superior Court is well founded both in law and undisputed facts of the case. It also accords with the favourable report of the children officer filed in court and which explicitly stated that he was the proper person to have both the custody, care and control of the minor as its natural father as opposed to the applicants who are maternal grandparents. He had also bonded well with the minor contrary to the applicants’ assertions that he has never lived with the minor. He had also made arrangements to have her enrolled in a good educational facility of his choice. Lastly, that the intended appeal will not be rendered nugatory or nor will the applicants or the minor suffer any prejudice.

To buttress the above submission, the respondent relies on the case of RiftValley Water Services Board & 3 Ohers vs. Geoffrey Asanyo & 2 Others[2014]eKLRfor the holding inter alia that there is no way an intended appeal/appeal can be rendered nugatory if what is sought to be forestalled by an aggrieved party in such an intended appeal/appeal has already taken place and reversing it would be tantamount to preempting the outcome of the intended appeal/appeal.

The applicants filed a supplementary affidavit together with annextures thereto in response to the respondent’s replying affidavit. In summary, it is their assertion that it is not correct as contended by the respondent that their application is incompetent for the failure to annex the documents alluded to by the respondent in his averments in the replying affidavit as according to them, the record is explicit that they annexed to their application the decree issued on 10th June 2020, the judgment dated 18th May 2020, the ruling of 14th August 2020 and both notices of appeal as against both the intended impugned decisions. It was also not correct as contended by the respondent that he was the more suitable person to have custody, care and control of the minor as opposed to them because the deceased mother of the minor described herself as single in her prenatal card. She also named the 1st applicant as the next of kin. Also reiterated their earlier assertions that the minor was handed to them upon its birth and the death of the mother and has been in their custody, care and control ever since. They also have a children officer’s report stating explicitly that they are best suited persons to have the custody, care and control of the minor. Lastly, that it is not true as contended by the respondent that the intended appellate processes have been overtaken by events as they still have the custody, care and control of the minor.

Our invitation to intervene on behalf of the applicants has been invoked under section 3A of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya which with its twin sister section 3B enshrines the overriding objective of the Court. The principles that guide the Court on the invocation and application of this principle have now been crystallized by case law. We take it from the case of City Chemist (NBI) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli vs.Orient Commercial Bank Limited Civil Appeal No. Nai 302 of 2008 (UR No. 199 of 2008);andKariuki Network Limited & Another vs. Daly & Figgis Advocates Civil Application No. Nai 293 of 2009, which all support the proposition that the purpose of the overriding objective principle is first, to enable the court achieve fair, just, speedy, proportional, time and cost-saving disposal of cases before it. Secondly, to embolden the court to be guided by a broad sense of justice and fairness. Thirdly, to give the court greater latitude to overcome any past technicalities which might hinder the attainment of the overriding objective.

The substantive provision for accessing the relief sought above is howeverRule 5(2)(b)of the Court of Appeal Rules. It provides:

“5(2)(b) in any civil proceedings, where a notice of appeal had been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the court may think just.”

The principles that guide the Court in the exercise of the above mandate have now been crystallized by case law which we find prudent to highlight albeit in a summary as hereunder. The exercise of the mandate under Rule 5(2)(b) is purely discretionary, which discretion is unfettered. See Butt vs. Rent Restriction Tribunal [1982]eKLR. The jurisdiction only lies if a notice of appeal has been lodged against the decision or ruling appealed from. See Githunguri vs. Jimba Credit Corporation Ltd [1988] KLR 838. The intended appeal should notbe frivolous but arguable. See Githunguri case [supra].

By demonstrating that the appeal is arguable does not mean an appeal or intended appeal which must necessarily succeed, but one which raises a bona fide issue worthy of consideration by this court. See the case of Kenya Tea Growers Association & Another vs. Kenya Planters Agricultural WorkersUnion Civil ApplicationNo. NAI 72 of 2001 (UR.Demonstration of existence ofone arguable point will suffice. See the case of Kenya Railways Corporationvs. Erdemann Property Limited[2012]eKLRandAhmed Musa Ismael vs Kumba Ole Ntamorua & 4 Others [2014] eKLR. There is no jurisdiction to grant a relief under the said Rule where the intended impugned order/decision either resulted in a dismissal or a striking out order; or alternatively where the Court did not order either party to do or refrain from doing something capable of being restrained. See the case of Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs. County of Nairobi Government & 3 Others[2014]eKLR. There has to be demonstration that the appeal will be rendered nugatory should the relief sought be withheld. See the Githunguri case [supra]. Lastly, both twin principles have to be established before any relief can issue under the said Rule. See the case of Republic vs. Kenya Anticorruption Commission & 2 Others [2009] KLR 31, and Reliance Bank Ltd vs. Norlake Investments Ltd[2002] 1 EA 227.

We have applied the above threshold to the rival position herein. The first issue to be addressed is the competence of the application under consideration for the alleged failure to annex vital documents namely, certified copies of the decree and order of the intended impugned judgment and ruling of the High Court. The substantive prayers sought are those laid in prayers 3 and 4. Prayer 3 seeks to stay the ruling issued on 14th August, 2020. The attendant notice of appeal annexed to the application is the one dated 17th August, 2020 and marked PGM5 while prayer 4 on the other hand relates to the judgment issued on 18th May, 2020 whose attendant notice of appeal is dated 29th May, 2020 annexed as PGM2. In light of the above, it is our finding that we are properly seized of the applicationunder consideration as there is sufficient demonstration that the application is anchored on two notices of appeal against the main judgment and the ruling on the applicants’ application for stay before the High Court. It is, also our view that it is not correct as contended by the respondent that the same stands faulted for the failure to secure and annex the documents alluded to as no where in the principles highlighted above that guide the Court in the exercise of its mandate under the said rule do we find any proposition that a party stands non suited on an application of this nature for the failure to annex the mentioned documents. We therefore reject the said assertion and proceed to render ourselves on the merits of the application.

In satisfaction of the first prerequisite under this Rule, the applicants intend to argue on appeal inter alia that the learned Judge failed to appreciate that the minor has lived for six (6) uninterrupted years with them and that change of environment would impact negatively on the minor; that it was also improper for the Judge to grant custody, care and control of a young girl to the respondent in the absence of demonstration of existence of any exceptional circumstances to warrant granting him custody, care and control of the minor as opposed to allowing the applicants to continue performing that role subject to visitation rights to the respondent. We find this point arguable notwithstanding that they may not ultimately succeed.

On the satisfaction of the second prerequisite, it is our finding that the substratum of the intended appeal is the custody, care and control of the minor who from the record is only six (6) years old. The contest is between the biologicalfather who has never had custody, care and control of the child though he has had contact with the minor through visitation rights mutually agreed upon between him and the applicants, the natural maternal grandparents of the minor and who have been with the minor since birth.

In deciding either way, we bear in mind the guiding principle that the welfare of the minor is paramount. We appreciate that what the High Court decree is intended to achieve is to effectuate the change of the custody, care and control of the minor from the applicants to the respondent, a position capable of being reversed. We are however of the view that the above probability notwithstanding, we find it prudent not to disturb the current status quo as regards the custody, care and control of the minor for the same reason that the welfare of the subject minor which in our view is of paramount consideration demands that the said status quoprevailing as at the time the litigation resulting in this application was initiated do remain pending determination of the intended appeal. By status quo we mean that we allow the application and grant an order of stay with the result that the applicants will in the meantime retain the custody, care and control of the minor pending hearing and determination of the appeal. This will avoid the minor being destabilized by being moved again should the applicants succeed on appeal.

We therefore make orders as follows:

1) We disallow prayer 3 as it arose from a negative order.

2) Prayer (4) is allowed on terms that there will be stay of the execution of the judgment of the High Court at Kerugoya in High Court Appeal No. 40 of 2017 by Hon. L. W. Gitari issued on 18thMay 2020 pending hearing and determination of the appeal. For the avoidance of doubt, the minor shall remain in the custody of the applicants until their appeal against the judgment is heard and determined.

3) The Deputy Registrar of the High Court appealed from is directed to do all that is possible to provide necessary documents to the applicants to enable them file the intended appeal within ninety days from the date of this ruling.

4) Costs of the ruling shall abide the outcome of the appeal.

DATED and DELIVERED at NAIROBI this 29th day of January, 2021.

W. OUKO (P)

....................................

JUDGE OF APPEAL

R. N. NAMBUYE

......................................

JUDGE OF APPEAL

HANNAH OKWENGU

....................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR