[2019] KEHC 12190 (KLR)
The court found that while the applicant is entitled to seek an appeal and thus granted enlargement of time to file the appeal within 14 days, the application for stay of execution did not meet the requirements under Order 42 Rule 6(1) of the Civil Procedure Rules. The application was brought late, lacked sufficient...
Source-derived case information.
- Citation
- [2019] KEHC 12190 (KLR)
- Parties
- Appellant: HAM; Respondent: SOS
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 71 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Enlargement of Time and Stay of Orders
- Outcome
- Application partly allowed.
- Judges
- A Ali-Aroni
- Legal Topics
- Child Maintenance, Enlargement of Time, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HAM
Appellant
SOS
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Enlargement of Time and Stay of Orders
Legal Issues
- 1 Whether the applicant should be granted enlargement of time to file an appeal against the maintenance order.
- 2 Whether a stay of execution of the maintenance order should be granted pending appeal.
Ratio Decidendi
The court found that while the applicant is entitled to seek an appeal and thus granted enlargement of time to file the appeal within 14 days, the application for stay of execution did not meet the requirements under Order 42 Rule 6(1) of the Civil Procedure Rules. The application was brought late, lacked sufficient supporting evidence, and no security for due performance was offered. Additionally, the applicant had not complied with the maintenance order for several months. Therefore, the stay of execution was declined, but time to appeal was enlarged.
Court Disposition
Application partly allowed.
Orders
- Time for filing the intended appeal is enlarged; the appeal may be filed within 14 days from the date of the ruling.
- Application for stay of execution is declined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL APPEAL NO. 71 OF 2019
HAM.........................................................APPELLANT
VERSUS
SOS.........................................................RESPONDENT
RULING
1. The application before me is dated 26th June 2019. It seeks time to enlargement of time within which an appeal and for stay of the orders by the trial court to have the Appellant maintain minors of a union between him and the Respondent to a tune of Kshs.40,000/= a month. The orders subject of the appeal made on the 26th of April 2019.
2. The application is opposed on grounds that despite there being no order of stay, the Respondent has failed to pay maintenance and remains in contempt.
3. It is a right for an applicant to appeal against any decision to the highest level of court permissible in law. I will therefore enlarge the time which an appeal may be lodged to 14 from today’s date.
4. I however decline to grant a stay of the proceedings in the lower court as the intended appeal is on a specific order which in my view has no bearing on the case in the Children’s court.
5. As relates to the application of the stay of the order being appealed from, Order 42(6)(1) rules 46 is very specific, on conditions necessary before such an order can issue. The court has to be satisfied that a substantial loss will be suffered by the applicant, the application was made without unreasonable delay and security for due performance has been issued.
6. The application was brought late in the day and I do agree with the respondent that the annextures in support of the application do not support the same. Further no security for due performance was offered.
7. I also take judicial notice that though the order was made several months ago the applicant has not bothered to comply.
8. For avoidance of doubt the application succeeds only to the extend allowing the intended appeal be filed within 14 days of the date hereof.
9. Costs to the Respondent in any event.
SIGNED DATED and DELIVERED in open court this 19TH day of DECEMBER, 2019.
........................
ALI-ARONI
JUDGE