[2023] KEHC 17862 (KLR)
The court found that, in the absence of any response from the respondent and considering the urgency of the matter, it was appropriate to grant a conditional stay of the order requiring monthly salary deductions for child upkeep. The appellant was ordered to pay Kshs.5,000 monthly directly to the respondent for the...
Source-derived case information.
- Citation
- [2023] KEHC 17862 (KLR)
- Parties
- Appellant: FOK (Francis Ole Kimiti); Respondent: JM (Minor Suing through her Mother JK)
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E006 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- RB Ngetich
- Legal Topics
- Child Maintenance, Interim Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FOK (Francis Ole Kimiti)
Appellant
JM (Minor Suing through her Mother JK)
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the order directing monthly salary deductions for child upkeep pending appeal.
- 2 What interim arrangements should be made for the maintenance of the minor during the pendency of the appeal.
Ratio Decidendi
The court found that, in the absence of any response from the respondent and considering the urgency of the matter, it was appropriate to grant a conditional stay of the order requiring monthly salary deductions for child upkeep. The appellant was ordered to pay Kshs.5,000 monthly directly to the respondent for the minor's upkeep, effective May 5, 2023, pending the hearing and determination of the appeal. The court emphasized that failure to comply with this interim payment would result in the discharge of the stay order. The decision was guided by the need to balance the appellant's concerns with the ongoing welfare of the minor, in line with the best interests of the child as mandated...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Order of March 16, 2023 is stayed pending hearing and determination of the application.
- The appellant/applicant to pay Kshs.5,000 monthly to the respondent for upkeep of the minor with effect from May 5, 2023 and on the 5th of every succeeding month.
Full Case Text
Judgment text and source record
26 paragraphs
FOK v JM (Minor Suing through her Mother JK) (Civil Appeal E006 of 2023) [2023] KEHC 17862 (KLR) (30 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17862 (KLR)
Republic of Kenya
In the High Court at Kabarnet
Civil Appeal E006 of 2023
RB Ngetich, J
May 30, 2023
Between
FOK
Appellant
and
JM (Minor Suing through her Mother JK)
Respondent
Ruling
1. The appellant/applicant Francis Ole Kimiti filed Memorandum of Appeal dated April 3, 2023 on April 4, 2023 following ruling delivered on March 16, 2023 by Hon. R. Koech, SPM Eldama Ravine Court.
2. In the said ruling, the trial Magistrate directed that the appellant be remitting Kshs.10,000/= every month towards upkeep of the minor herein named J.K.
3. In the order issued on March 16, 2023, the trial Magistrate directed that the monthly upkeep be deducted from appellant’s salary to Eldama Ravine Court deposit account by Director General Kenya Revenue Authority.
4. Together with the appeal, the appellant filed application dated April 3, 2023 under Certificate of Urgency seeking to stay the ruling/order pending this appeal.
5. On April 19, 2023 I directed that the respondent be served with the application herein.
6. On 30/5/2023 the applicant’s Advocate indicated that the respondent was served but no response has been filed.
7. I have perused affidavit of service filed and note that at the respondent’s Advocate was served via e-mail on 24/4/2023. No response has been filed.
8. The appellant’s/applicant’s Advocate has informed court that his client is willing to pay Ksh. 5000/= via Mpesa to the respondent. He is opposed to deductions being done from his salary. Counsel also indicated that the applicant is living in appellant’s house and the appellant is paying school fees for the minor in addition to maintaining his 10 other children.
9. No response has been filed to enable the court ascertain the assertions by the appellant/applicant.
10. In view of the urgency of the matter I will allow Prayer 2 of the application on condition that the appellant pays Kshs 5000/= monthly for upkeep of the minor herein with effect from May 5, 2023.
Final Orders:- 11. 1.Order issued on March 16, 2023 is hereby stayed pending hearing and determination of this application.2. The applicant/appellant to make monthly payments of Kshs.5000/= monthly to the respondent for upkeep of minor with effect from May 5, 2023 and 5th of every other succeeding month.3. Failure to comply with order 2 above, order 1 to remain discharged.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 30TH DAY OF MAY 2023. …………….……………………RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi- Court Assistant.Mr. Njiri for Appellant.No appearance for the Respondent.