[2017] KEHC 8362 (KLR)
The court found that the appellant failed to demonstrate any compliance with the maintenance orders or to propose any arrangement for the child's upkeep pending appeal. Granting a stay would be contrary to the best interests of the child, which is the paramount consideration in all matters involving children as...
Source-derived case information.
- Citation
- [2017] KEHC 8362 (KLR)
- Parties
- Appellant: G K K; Respondent: M N M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 110 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Child Maintenance, Best Interests of Child, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G K K
Appellant
M N M
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the maintenance orders should be granted pending appeal.
- 2 Whether granting a stay would be contrary to the best interests of the child.
Ratio Decidendi
The court found that the appellant failed to demonstrate any compliance with the maintenance orders or to propose any arrangement for the child's upkeep pending appeal. Granting a stay would be contrary to the best interests of the child, which is the paramount consideration in all matters involving children as mandated by the Constitution and the Children Act. The absence of any proposal for interim maintenance or evidence of ongoing support for the child weighed heavily against the appellant. The application for stay was therefore dismissed to uphold the welfare of the child.
Court Disposition
application dismissed
Orders
- The application dated 30th November 2016 is dismissed.
- Costs shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL APPEAL NO. 110 OF 2016
G K K………….….………………………….…….APPELLANT
VERSUS
M N M……………………………………….…..RESPONDENT
RULING
1. The application dated 30th November 2016 seeks stay of execution of orders that had been made by the lower court in Nairobi Children’s Court Case No. 102 of 2009 pending appeal. The appellant avers that he would suffer substantial loss should the stay not be granted.
2. The record does not have copy of any response to the application by the respondent, but there is evidence that she was served with the relevant papers.
3. The said application was urged before me on 15th December 2016. It was pleaded that the application was unopposed and therefore the same be allowed. It was said that if stay was not granted the appellant would suffer substantial loss. It was conceded that the appellant was the father of the subject child, but counsel said he was unaware whether the appellant had been maintaining the subject child.
4. I have perused through the record. The central issue is about maintenance of a child. It would appear that orders had been made on maintenance, but it would appear that there was no compliance. The appellant does not assert that he complied with the orders, or that he was even ready to so comply. He has not pleaded that he has been maintaining the child, and if not, the plans that he has in that regard. He merely states that he would suffer loss and would be unable to cater for his other children.
5. The law enjoins me in all cases touching on children to treat the welfare of the child as the paramount factor to be taken into consideration. I am talking about Article 53(2) of the Constitution of Kenya and section 4(2) (3) of the Children Act, Cap 141, Laws of Kenya which state the paramountcy principle.
6. The lower court had made orders on maintenance of the subject child. It is those orders that the appellant would like to be stayed. He has not made any proposals on how the child is to be maintained pending the hearing and determination of the appeal. Staying the maintenance order, no doubt, would be contrary to the best interests of the child.
7. I do not find any basis for granting the orders sought. Consequently, I shall dismiss the application dated 30th November 2016. Costs shall abide the outcome of the appeal.
DATED, SIGNED and DELIVERED at NAIROBI this 20TH DAY OF JANUARY, 2017.
W. MUSYOKA
JUDGE