[2023] KEHC 27332 (KLR)

GAT v MM (Miscellaneous Application E056 of 2021) [2023] KEHC 27332 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27332 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Application E056 of 2021

SN Mutuku, J

November 14, 2023

Between

GAT

Appellant

and

MM

Respondent

Ruling

1. This Ruling relates to a Notice of Motion dated 27th October, 2021 under various provisions of the law as shown on the face of the Notice of Motion. It seeks the following orders:i.spent.ii.That the Honourable court be pleased to grant the Applicant leave to Appeal the judgment and the orders given by the Hon. P. Achieng on the 18th day of March, 2021 in Children’s Court Case No. 004 of 2020 at Ngong Law Courts.iii.That in the interim and pending the hearing and determination of this application, the Honourable court be and is hereby pleased to stay, review and or set aside the judgment and the orders given by the Hon P. Achieng on the 18th day of March, 2021 in Children’s Court Case No 004 of 2020 at Ngong Law courts.iv.That the Honourable court be pleased to grant interim stay the Defendant’s extracted Decree dated 22nd October, 2021 pending the hearing and determination of this application.v.That pending hearing and determination of this Appeal, this honourable court be pleased to stay the proceedings in the Ngong Children’s Case No. 004 of 2020. vi.That this Honourable court be pleased to reinstate the order of the lower court dated 17th March, 2020 in its entirety, pending the hearing and determination of this application.vii.That this Honourable court be pleased to recall the lower courts file being Ngong Law Courts in Children’s Case No 004 of 2020. viii.That costs be provided for.ix.That this honourable court be pleased to make any further orders and directions that it may deem fit and just in the circumstances and in the best interest of the minor.

2. The Application is supported by an affidavit sworn on the same date by Godfrey Allan Tollo. To my understanding of the supporting affidavit, the Applicant is complaining about issued against him and in favour of the Respondent on 18th March 2021. He is complaining about lack of communication to him by the court resulting in the judgment against him in favour of the Respondent. He has argued that he is not able to pay the decretal amount and that he can only afford monthly payment of Kshs 20,000/-. He claims that if the orders issued on 18th March 2021 are allowed to stand, he faces significant loss and imminent arrest.

3. He further argued that he has filed the application without any inordinate delay.

4. The Application is opposed by the Respondent through a Replying Affidavit dated 3rd November, 2021. It is her case that the Applicant was aware of the judgment by 1st April, 2021, about 14 days after the judgment was delivered; that this was ample time for him to seek leave to appeal and that failure to do so can only be deemed as accepting the decision of the court.

5. The Respondent has argued that the Applicant did not file or serve an affidavit of means; that the evidence on record confirms that the Appellant is a person of means and his attempt to litigate the matter basing on newly created and forged documents is an abuse of court process; that the Applicant’s actions have caused emotional turmoil to both the minor and herself; that the Applicant has not applied for leave to appeal from the trial court and has not demonstrated any attempts to seek the proceedings and prepare the record of appeal.

6. She has argued, further, that Applicant has not advanced any valid reasons why a memorandum of appeal has not been filed; that the Applicant is looking for every avenue to avoid obeying legitimate court orders and that no arguable appeal exists or has been presented and therefore the orders sought are an act of forum shopping.

Submissions 7. The Notice of Motion under consideration was canvassed by way of written submissions. The Applicant filed his submissions dated 23rd February 2023 on 24th February 2023. He has argued that he is entitled to the orders sought and relied on section 32 of the Children’s Act which provides to the effect that the parents of a child shall have parental responsibility over the child or an equal basis and neither the father or the mother of a child shall have superior rights or claim against the other in exercise of such parental responsibility.

8. He also cited Section 119 (c) of the Childrens Act which empowers the court to suspend or impose a condition on the order of financial provision issued under Section 116 of the Childrens Act. This section provides that:In relation to an order made under section 116, the Court may –a.Impose such conditions as the Court deems fit;b.Vary, modify or discharge any order made under section 116 with respect to making of any financial provision, by altering the schedule of payments or by increasing or diminishing the amount payable; orc.Temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the Court may deem fit.

9. The Applicant relied on HWN -vs- GKC [2018] eKLR, where the court observed that:“Orders of maintenance, like all other orders of court, should not be given in vain. Such orders must pass the test of practical enforcement. It behoves on the court to call for and analyse with circumspection the earnings of the parents on the one hand and the needs of the children on the other. This is especially important in a case such as this one where there is an indication that the Applicant has another family.”

10. It is their case that the orders of the learned magistrate issued on 18th March 2021 have overburdened him on parental responsibility towards the minor and have failed to consider the doctrine of equal parental responsibility.

11. The Respondent filed her submissions dated 19th July, 2023 in which four issues for determination have been raised, namely:a.Whether the Application dated 27th October, 2021 is fatally defective.b.Whether the Appellant is entitled to stay of execution of the judgement and orders issued by the court on 18th March, 2021 in Children’s court case No 4 of 2020 at Ngong Law courts.c.Whether this Honourable court should reinstate the order of the lower court dated 17th March, 2020d.Who should bear the cost of the application.

12. It is submitted in respect of the first issue that Section 80 of the Children’s Act provides that an appeal on any decision shall lie with the High court and similarly Rule 20 and 21 of the Children (Practice and Procedure Parental Responsibility) Regulations 2002, provides the same.

13. It is submitted that the Applicant failed to file an appeal within the 30 days as provided under section 80 of the Children Act; that it is trite that any party seeking to file an appeal out of time should seek leave as provided under Order 50 Rule 5 and 6 of the Civil procedure Rules; that the application herein is for leave to appeal and not for extension of time to appeal out of time and therefore this application is fatally defective as leave to appeal should be sought before the court that made the order.

14. The Respondent relied on Wambui Kimithi & 2 others -vs- Mary Wangui Muhindi [2021] eKLR, where the court stated that:“The problem with the instant motion however is as demonstrated above, it has no prayer seeking to extend time. A party is bound by their own pleadings, which is a settled practice, a court cannot grant orders that are not sought by the party. In David Sironga Ole Tukai vs. Francis Arap Muge & 2 others [2014] eKLR this Court while dealing with a similar issue had this to say about a party’s pleading; -“It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings.”

15. The Respondent further submitted that the Applicant in his application has sought for both review and appeal simultaneously contrary to Order 45 Rule 2 of the Civil procedure Rules, making this application defective. She cited Mary Wambui Njuguna -vs- William Ole Nabala & 9 others [2018] eKLR, where the court stated that:“Under Order 45 rule 2 of the rules, it is stipulated that:“A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”We agree with the conclusion by the learned Judge that it was not open for the appellant to pursue an appeal and at the same time a review of the same orders. The appeal could only lie on the outcome of the application for review. For the aforesaid reasons we find this appeal without merit and order it dismissed with costs to the 1st respondent.”

16. In my view such an application is incompetent because the application is trying his luck in seeking both the appeal and the review. I agree with the Respondent on this point that the application is fatally defective. Under Order 45 (2) of the Civil Procedure Rules, a party is either seeking review of appealing from a decree or order.

17. On their second issue it is submitted that the application for stay invokes the discretionary power of this court under Order 42 Rule 6(1) of the Civil Procedure Rules; that the conditions to be met before stay is granted are stipulated under Order 42 Rule 6(2), that no order for stay of execution shall be made under sub rule (1) unless (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

18. The Respondent relied on K.W.M -vs- R.N [2015] eKLR where the court, cited Bhutt -vs- Bhutt Mombasa HCCC No 8 of 2014(O.S), where the court gave guidelines on how a court should exercise its discretion when faced with an application for stay of execution in cases involving children:“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution, Order 42 rule 6 of the Civil procedure Rules, must be complemented by an overriding consideration of the best interest of the child in accordance with the injunction of Article 53(2) of the Constitution.”

19. The Respondent argued that the application herein seeks stay of maintenance orders which application and/or prayer is not in the best interest of the child; that the Applicant is not entitled to orders sought as he has come to equity with unclean hands and that his conduct in this matter betrays him as has been demonstrated in the Replying Affidavit.

20. On the third issue the Respondent submitted that the orders of 17th March, 2020 were vacated by the trial court; that the proper forum for addressing the issue of reinstatement should be the trial court or on appeal; that no leave to appeal the decision out of time has been presented and therefore the court lacks jurisdiction to deal with this issue.

21. The Respondent relied on Patriotic Guards Limited -vs- James Kipchirchir Sambu [2018] eKLR , where the court stated that:“……It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, like or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being, so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”

22. On the issue of costs, the Respondent relied on section 27(1) of the Civil Procedure Act which provides that, costs follow an event. She submitted that the Applicant has applied diversionary tactics and has failed to comply with the court orders leaving no choice to them but to prepare and file various applications for execution.

Analysis and Determination 23. Central to the application under consideration is whether the Applicant has persuaded this court that he deserves the orders he is seeking. From the face of the Notice of Motion dated 27th October 2021, it is clear to me that the Applicant is not seeking leave to file the appeal out of time. He is seeking leave to appeal the judgment delivered on 18th March 2021. He is also seeking orders of stay, review and/or setting aside the said judgment, among other prayers.

24. The Notice of Motion was filed on 27th October 2021. This was about 7 months late after delivery of the judgment sought to be appealed against. The Notice of Motion does not contain any prayer seeking leave to file the intended appeal out of time. As submitted by the Respondent while relying on Wambui Kimithi & 2 others vs. Mary Wangui Muhindi [2021] eKLR, a court will not grant a remedy which has not been sought by the party and that parties are bound by their pleadings.

25. Secondly, the Applicant is seeking leave to file an appeal and as at the same time, he is seeking stay, review, and/or setting aside of the judgment he seeks to appeal against. I agree with the Respondent in her submissions, while relying on Otieno, Ragot & Company Advocates v. National Bank of Kenya Limited [2020] eKLR, that it is not permissible to pursue an appeal and review concurrently and that if a party chooses to proceed by way of an appeal, he automatically loses the right to seek a review.

26. To my mind, a party that comes to court seeking an appeal and at the same time review of the same orders is keeping his options open, probably hoping that if review fails then he would pursue the appeal. As stated in African Airlines International Limited vs. Eastern & Southern Africa Trade Bank Limited [2003] 1 EA 1 (CAK), there can be no place for review once an intention to appeal has been intimated.

27. Thirdly, there is the issue of stay of proceedings in children matters. It is trite that in matters affecting children, the paramount consideration is the best interest of the child. This is the constitutional command under Article 53(2) of the Constitution and is also captured under sections 4(3)(4), 6(1), 24(1) and 83 of the Children Act Cap. 141 Laws of Kenya.

28. In cases of maintenance of children, the party that is affected if the orders of the court are not obeyed is the child and not the parents of that child. I believe this is the reason behind pronouncements of the courts when dealing with applications for stay of court orders in maintenance of children cases. In RWW vs. EKW CIVIL APPEAL NO. 13 OF 2013 [2019] eKLR, the court held that:“As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about it. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same.”

29. The Applicant is not seeking leave to appeal, and I have stated in this ruling that he is late in bringing his appeal and that he is bound by his pleadings. Further, the orders he is seeking to stay the judgment will be prejudicial to the minor because they will be against the best interest of the child principal. The same principle applies to the other orders sought by the Applicant. Prayers 4, 5, 6 and 7 cannot issue for the same reason that by granting them, this court will be going contra the best interest of the child.

30. Consequently, the Notice of Motion dated 27th October, 2021 is hereby dismissed with costs to the Respondent.

31. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 14TH NOVEMBER 2023. S. N. MUTUKUJUDGE