[2022] KEHC 11230 (KLR)

In re AK (Minor) (Civil Appeal E141 of 2021) [2022] KEHC 11230 (KLR) (Family) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11230 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E141 of 2021

AO Muchelule, J

June 16, 2022

IN THE MATTER OF AK (MINOR)

Between

VCK

Applicant

and

EKM

Respondent

(Being an Appeal against the Order of Hon. F. Terer delivered at Nairobi Chief Magistrates Court Children’s Court at Milimani on 6th December 2021 in Children’s Case No. E471 of 2021)

Ruling

1. The applicant VCK and the respondent EKM have a child AK who is about 4 years. In a plaint dated 21st April 2021 and filed before the Children Court at Milimani, the respondent sought joint legal custody of the child and asked to be granted its actual custody, with the applicant having visitation rights. She asked for Kshs.30,000/= every month for the child’s upkeep, the applicant pays its fees and provides its medical cover.

2. With the suit was a notice of motion where the respondent sought an interim order of maintenance for the child of Kshs.30,000/= monthly. It was claimed that the applicant had voluntarily been paying Kshs.30,000/= for the child’s upkeep, but that for two months he had not paid the amount which meant Kshs.60,000/= was outstanding.

3. The application came up for hearing on 2nd December 2021. It had been defended. Both parties were represented. When the motion was moved, the applicant’s response was that he had previously been paying but that he was now facing tough financial times. He asked that the amount be revised to Kshs.15,000/= monthly. The court gave directions on the main suit by asking the applicant to file defence and witness evidence. An interim order for the payment of Kshs.25,000/= upkeep for the child by the applicant was made. This is the order that aggrieved the applicant and made him to appeal before the court. The major complaint in the Memorandum of Appeal was that the order for him to pay Kshs.25,000/= per month towards the child’s upkeep was done without consideration of his financial ability to pay, and without considering the child’s needs; that the order was excessive, exorbitant and oppressive. Lastly, that the court did not consider the principles on maintenance under section 94(1) of the Children Act, and Article 53(1) of the Constitution which provides for equal responsibility of the parents in maintaining a child.

4. With the appeal was filed an application for stay of execution of the order for maintenance pending the hearing and determination of the appeal. The application was not defended. M/s Mirichi for the applicant filed written submissions on the application.

5. The application for stay having been brought under Order 42 rule 6(2) of the Civil Procedure Rules, the applicant has to show that he will suffer substantial loss if stay is not granted; that the application was brought without unreasonable delay; and that such security for the due performance of the order that may ultimately be binding on him has been offered. It is notable that the application was brought timeously, but that no security was offered.

6. I consider that the applicant had been paying Kshs.30,000 monthly before the suit, although he was in arrears for two months. He stated in the lower court, and has repeated here, that he was now facing financial difficulties and, as such, could not raise the ordered amount. The difficulties were not substantiated, either here or in the lower court. I also consider that in the lower court, during the application, the applicant was comfortable with paying Kshs.15,000/= monthly for the child’s upkeep.

7. It was clear that the payment of Kshs.20,000/= per month towards the child’s upkeep was an interim order that was made before the court had considered the child’s needs, the financial means of the parents and their other obligations, as required by section 94(1) of the Act. I consider that section 97 of the Act empowers the Children Court to make an interim order for maintenance in the best interest of the child.

8. I reiterate that at the core of this application is the need for the applicant to demonstrate that he will suffer substantial loss if the stay is not granted, and the appeal ultimately succeeds.

9. I also bear in mind that the dispute is over a child. Under section 4(2) and (3) of the Children Act and Article 53(2) of the Constitution, the court has to consider the best interests of the child. The court should ask itself, in determining the application, what order would be in the best interests of the child. Lastly, the need to maintain the child is a continuing constitutional and statutory obligation on the part of the parents. Its suspension would leave a vacuum, which would not be in the best interests of the child. It would leave the child without upkeep.

10. In conclusion, I find that, without a substantial analysis of the financial capacity of the applicant in relation to that of the respondent, and against the needs of the child, it may not be easy at this stage to determine that, without stay, the applicant will suffer substantial loss. Consequently, I find the application not merited and dismiss it with costs.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JUNE 2022. A.O. MUCHELULEJUDGE