[2012] KEHC 4397 (KLR)
The court held that the welfare of the children takes precedence over the strict conditions for granting a stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules. The court found that executing the maintenance order as it stands could destabilize the appellant, which may in turn prejudice the...
Source-derived case information.
- Citation
- [2012] KEHC 4397 (KLR)
- Parties
- Appellant: H.H.M; Respondent: B.B; Respondent: N.A
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2011
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Status quo maintained; previous orders to remain in force pending appeal.
- Judges
- CW Meoli
- Legal Topics
- Child Custody, Child Maintenance, Stay of Execution, Welfare of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H.H.M
Appellant
B.B
Respondent
N.A
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the maintenance and custody orders pending appeal.
- 2 Whether the welfare of the children overrides strict compliance with the conditions for stay under Order 42 rule 6(2) of the Civil Procedure Rules.
- 3 Whether it is appropriate to reverse the custody order at the interlocutory stage.
Ratio Decidendi
The court held that the welfare of the children takes precedence over the strict conditions for granting a stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules. The court found that executing the maintenance order as it stands could destabilize the appellant, which may in turn prejudice the minors' welfare. However, the court also emphasized that the appellant remains duty bound to provide for his children. The court declined to reverse the custody order at this interlocutory stage, as doing so would amount to disposing of the appeal prematurely and could destabilize the children. The prudent course is to maintain the status quo pending the hearing and determination of...
Court Disposition
Status quo maintained; previous orders to remain in force pending appeal.
Orders
- Orders (a), (b), and (c) made on 19th October, 2011 to remain in force pending the hearing and determination of the appeal.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
H.H.M.................................……….......………APPELLANT
VS
B.B &
N.A..............................................................RESPONDENTS
R U L I N G
1. I have considered the Appellant’s application filed on 14th October, 2011 in light of the provisions of Order 42 rule 6(1) of the Civil Procedure Rules upon which it is expressed to be brought. I have also read through the respective affidavits and written submissions.
2. The brief background to the case is that the Appellant and the 2nd Respondent are a divorced couple. They have two minor children, who have remained in the custody of the 2nd Respondent since the parents’ divorce in February, 2011.
3. The subject matter of the present application are the orders made in Civil Suit No. SRMCC 14/2011 (Kilifi) awarding the custody of the minors to the latter. The court also ordered the Appellant to cater for the school fees, medical and clothing needs as well as pay a monthly sum of shs. 15,000/- for their food.
4. At the initial stage, this court granted conditional stay of execution. It appears that the appellant has continued to comply with the conditions given by this court. In this case, the welfare of the children deserves higher consideration than the precise conditions for granting stay prescribed in Order 42 rule 6(2) of the Civil Procedure Rules. In my view, the welfare of the minors may be prejudiced if the court upholds what the appellant claims is an onerous maintenance order, as he may eventually be destabilized by an execution process. At the same time, the Appellant is duty bound to make adequate provision for the upkeep of his children, who ought not to suffer because their parents have divorced.
5. Secondly, this is not the proper stage for the appellant to ask the court to reverse the custody order to his favour; that would amount to disposing of the appeal at the interlocutory stage in addition to destabilizing the minors.
6. Considering all the relevant matters, I am of the view that at this point, it is more prudent to maintain the status quo, pending the hearing and determination of the appeal.
7. In the circumstances, I order that my orders (a), (b), and (c) as made on 19th October, 2011, do remain in force pending the hearing and determination of the appeal. Costs will be in the cause.
Delivered and signed at Malindi this23rd May, 2012in the absence of the parties.
C. W. MEOLI
JUDGE