[2004] KEHC 2248 (KLR)
The court found that the applicant failed to demonstrate sufficient cause or substantial loss as required under Order 41 rule 4 of the Civil Procedure Rules. The mere existence of other financial responsibilities was not enough to justify a stay of the maintenance order. The court emphasized the paramount importance...
Source-derived case information.
- Citation
- [2004] KEHC 2248 (KLR)
- Parties
- Appellant: Hillary Kibet Melly; Respondent: Jane Nzula Kioko
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 51 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application for stay dismissed with costs
- Legal Topics
- Child Maintenance, Parental Responsibility, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hillary Kibet Melly
Appellant
Jane Nzula Kioko
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the requirements for stay of execution of the maintenance order pending appeal.
- 2 Whether the applicant would suffer substantial loss if the stay is not granted.
- 3 Whether the welfare and rights of the children should prevail during the pendency of the appeal.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause or substantial loss as required under Order 41 rule 4 of the Civil Procedure Rules. The mere existence of other financial responsibilities was not enough to justify a stay of the maintenance order. The court emphasized the paramount importance of the children's welfare, noting that delaying their enjoyment of the maintenance awarded would be unjust. Therefore, the application for stay was dismissed, and the maintenance order remained in force pending the outcome of the appeal.
Court Disposition
application for stay dismissed with costs
Orders
- The application for stay of the maintenance order is dismissed.
- The appellant shall pay the respondent's costs of this application.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIV APP 51 OF 03
HILLARY KIBET MELLY……………………………….…APPELLANT
=V E R S U S=
JANE NZULA KIOKO…………………………………RESPONDENT
R U L I N G
The matter before the court relates to the maintenance of the children who were born during the 4 year cohabitation period between the parties. The lower court found the Application to have parental responsibility for the children. It is this finding that is being challenged on appeal. In the meantime pending determination of the appeal the Applicant seeks stay of the order made against him to pay Kshs.5,000/- per month towards maintenance of the children. Their mother does not earn a living. After consideration of the provisions of Order 41 rule 4 I am of the view that the Applicant has not satisfied the requirements set out therein. No sufficient case has been shown to warrant stay.
That the Applicant has other financial responsibilities is not sufficient here. Substantial loss to the application if order is not granted has not been proved. To delay the enjoyment by the children of the fruits of the ruling would be heartless. They need to eat. They are entitled to shelter and other basic necessities of life. They should enjoy the judgment until their rights are set aside by the court on appeal. On that ground alone I do not find any reason to grant stay of the maintenance order. Applicant is dismissed with costs.
Dated this 15th day of March, 2004.
JOYCE KHAMINWA
J U D G E