[2018] KEHC 774 (KLR)
The court considered whether the applicant had satisfied the conditions for grant of stay of execution pending appeal. The applicant demonstrated that he had an arguable appeal and that unless a stay was granted, he risked execution against his assets or committal to civil jail, which would render the appeal...
Source-derived case information.
- Citation
- [2018] KEHC 774 (KLR)
- Parties
- Appellant: PKW; Respondent: CWM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 73 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Legal Topics
- Stay of Execution, Child Maintenance Orders, Consent Orders, Pension Funds, Tax Deductions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PKW
Appellant
CWM
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the ruling and orders of the Children’s Court should be granted pending appeal.
- 2 Whether the applicant will suffer substantial loss if the stay is not granted.
- 3 Whether the appeal is arguable and may be rendered nugatory without a stay.
Ratio Decidendi
The court considered whether the applicant had satisfied the conditions for grant of stay of execution pending appeal. The applicant demonstrated that he had an arguable appeal and that unless a stay was granted, he risked execution against his assets or committal to civil jail, which would render the appeal nugatory. The court also noted that the applicant had paid the arrears through his pension funds, subject to tax deductions, and that the respondent had not sought exemption from such deductions. Balancing the interests of both parties and the welfare of the minor, the court found it just to grant a stay of execution pending the determination of the appeal, subject to appropriate...
Court Disposition
Stay of execution granted pending appeal.
Orders
- There shall be a stay of execution of the ruling and orders of Hon. M. A. Otindo delivered on 29th June 2018 in Milimani CC No. 340 of 2013 pending the hearing and determination of the appeal.
- Costs of the application shall be in the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 73 OF 2018
IN THE MATTER OF DGK (MINOR)
PKW........................................APPELLANT/APPLICANT
Versus
CWM............................................................RESPONDENT
RULING
1. The Application coming for consideration in this Ruling is the one dated 17th September 2018 seeking the following orders seeking the following orders:
(i) THAT this Application be certified urgent and be heard ex-parte at the first instance.
(ii) THAT there be a stay of execution of the Ruling of Hon. M. A. Otindo delivered on the 29th June 2018 in Milimani CC No. 340 of 2013 and all consequential orders arising there from pending the hearing and determination of this Application inter-parties.
(iii) THAT there be a stay of execution of the Ruling of Hon. M. A. Otindo delivered on the 29th June 2018 in Milimani CC No. 340 of 2013 and all consequential orders arising there from pending the hearing and determination of the appeal
(iv) THAT there be a stay of proceedings in Milimani CC No. 340 of 2013 pending the hearing and determination of this Application.
(v) THAT there be a stay of proceedings in Milimani CC No. 340 of 2013 pending the hearing and determination of the Appeal
(vi) THAT the costs of this Application be the costs in the appeal.
2. The Application is based on the following GROUNDS:
(i) THAT the Applicant has an arguable appeal with a high probability of success.
(ii) THAT if the said stay of execution is not granted the Applicant’s appeal will be rendered nugatory and the applicant will suffer irreparable damage and loss.
(iii) THAT the applicant is facing eminent danger of having his assets attached or committed to Civil Jail in execution of the orders issued by the Children’s Court on 29th June 2018 to his detriment.
(iv) THAT substantial loss will result to the Applicant unless the orders sought are granted.
(v) THAT its in the interest of justice that the application is allowed.
3. The Application is supported by the Affidavit of PKW the Appellant/Applicant herein in which he has deposed as follows;
(i) THAT he entered into a consent with the Respondent that part of his pension funds would be released directly to the Respondent so as to clear the outstanding arrears and the same was to be remitted directly to her bank and he said order was adopted by the Court.
(ii) That the Respondent served the order upon the Director of Pensions and it was made clear to her that the funds would be released to her after all the necessary tax deductions of Ksh.700,000/-.
(iii) THAT the Respondent did not seek to have the funds exempted from being taxed but instead filed an application dated 6. 4.2018 seeking the Court directions that the funds be released to the Applicant’s bank and account then to her Account.
(iv) THAT the Applicant has paid all the arrears and the same were catered for by the Pension funds
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 19TH DAY OF DECEMBER, 2018
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI
IN THE PRESENCE OF: