[2022] KEHC 12262 (KLR)

In re EKM, NNM & EMM (Minors) (Family Appeal E007 of 2022) [2022] KEHC 12262 (KLR) (Family) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12262 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Family Appeal E007 of 2022

MA Odero, J

July 1, 2022

IN THE MATTER OF EKM AGED 14 YEARS, NNM AGED 11 YEARS AND EMM AGED 8 YEARS (MINORS)

Between

CMK

Applicant

and

CWM

Respondent

(Being an application for stay of execution and enforcement of the order of the children’s court made in Milimani Children’s Court in Children’s Case No E810/2020 (Hon Mary Otindo SPM) on July 13, 2021 pending the hearing and determination of the appeal herein.)

Ruling

1. Before this court for determination is the notice of motion dated February 24, 2022 by which the applicant CMK seeks the following orders:-“1. Spent.2. That this honourable court be pleased to issue stay of execution and enforcement of the order of the children’s court made in Milimani Children’s Court in Children’s Case No E810/2020 on the July 13, 2021 pending the hearing and determination of the appeal herein.3. That the honourable court be pleased to vary and modify the orders given by the subordinate court (Hon Mary Otindo SPM) on the July 13, 2021 and more specifically to discharge the orders of the subordinate court, pending the hearing and determination of the present appeal. 4. That the honourable court be pleased to issue any other/further orders taking in regard the best interests of the minors.

5. That the costs of this application be provided for.”

2. The application is premised upon sections 1A, 1B and 80 of the Civil Procedure Act, order 42 rule 6 of the Civil Procedure Rules 2010, article 53 (1) ( e) & (3) of theConstitution of Kenya, sections 4, 91, 98, 99 & 100 of the Children Act and rules 3 (2) of the High Court (Practice and Procedure) Rules, the Judicature Act cap 8 laws of Kenya and all other enabling laws and was supported by the affidavit of even date sworn by the applicant.

3. The respondent CWM opposed the application through her replying affidavit dated March 23, 2022. The application was canvassed by way of written submissions. The applicant filed the written submissions dated May 5, 2022 whilst the Respondent relied upon her written submissions dated April 28, 2022.

Background 4. The parties herein were involved in Children Case No E810 of 2020 before the Nairobi Children’s Court. On July 13, 2021 the learned trial Magistrate Hon CC Oluoch delivered a ruling in which the following orders were made in respect of the maintenance of the two Subject minors.“1. That the defendant shall provide school fees and related expenses to the extent of the previous school, the plaintiff shall pay for the extra costs. 2. That the plaintiff shall provide shelter, security, electricity and water bills when he has the minor in his custody.

3. That the plaintiff shall fully provide clothing when as and when need arises.

4. That food/upkeep shall be shared equally with each party providing Kshs 20,000/- per month.

5. That the defendant shall take out the medical cover for the minor both inpatient and outpatient needs.

6. That each party shall provide entertainment expense when the minors are in their care and within their means.

7. That house held expenses shall be shared equally.

8. That each party shall be at liberty to apply.”

5. The applicant being dissatisfied with this ruling filed an application dated August 16, 2021 before the trial court seeking a review of the orders made on July 13, 2021. On December 17, 2021 the learned trial magistrate dismissed the application for review. The applicant then filed the present application seeking a stay of execution and enforcement of the lower courts ruling pending hearing and determination of his appeal.

6. As stated earlier this application for stay was opposed. The respondent submitted that the applicant having failed to comply with the orders of the lower court is a contemnor who does not deserve to receive any audience from the court.

Analysis and Determination 7. I have carefully considered the application before this court, the affidavit filed in reply as well as the written submissions filed by both parties. The applicant submits that he is unable to comply with the orders made by the Children’s Court as the amounts which he was ordered to pay far exceed his current earnings. That he currently earns a net salary of Kshs 95,273 whilst his expenses amount to over Kshs 100,000.

8. The appellant avers that the respondent is more financially advantaged as she earns more than three (3) times what he earns. He complains that the respondent enrolled the minors in a school where the fees being charged are much higher than those that were being charged in the school which they previously attended. Finally, the applicant denies that he has failed to comply with the courts orders and states that he remitted Kshs 100,000 in March 2021 and has since been remitting a sum of Kshs 20,000/- monthly. The applicant submits that he is likely to suffer substantial loss if the orders of stay are not granted.

9. On her part, the respondent submits that the application has no merit. That whereas the applicant continues to enjoy unlimited access to the minors he has failed to comply with orders made requiring that he contribute towards the maintenance of the same minors.

10. The respondent states that due to the failure of the applicant to remit the payment required as school fees the minors have fallen into arrears of school fees and fee demand letters have been issued.

11. Finally the applicant complains that respondent has declined to submit the medical insurance cards for the children to her. That he has failed to do the bare minimum to provide for his children. That the present application lacks merit as a stay order will mitigate against the ‘best interests’ principle. She urges the court to dismiss this application with costs.

12. Order 42 rule 6(2) of the CivilProcedure Rules 2010 provide for the conditions to be met in considering an application for stay of execution. The court must satisfy itself that-(a)The application has been brought without undue delay.(b)The applicant stands to suffer substantial loss if the stay is not granted.(c)The applicant has provided security for the due performance of the decree.

13. In this case the judgment in issue was delivered on July 13, 2021. The present application was filed on February 24, 2022, six (6) months after delivery of said judgment. Accordingly, I find that the application was not filed in timely manner. The same is clearly an afterthought.

14. The impugned orders were made in relation to the maintenance and upkeep of a minor. It is trite law that in matters concerning the welfare of children courts are required to give priority to the best interest of the child.

15. TheConstitution of Kenya, 2010 provides at article 53 (2) that:(2)A child’s best interests are of paramount importance in every matter concerning the child.”

16. Likewise Children Act at section 4(2) provides as follows:-“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. (own emphasis)

17. In the case of Bhutt v Bhutt – Mombasa HCCC No 8 of 2014, the court held as follows:-“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution order 42 rule 6 of the civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “article 53(2) of theConstitution.” (Own emphasis)

18. The applicant suggests that the learned trial magistrate inadvertently failed to take into account his affidavit of means in which he enumerated his monthly earnings and expenses. This is not a matter for review but rather is a matter to be determined upon appeal. There has been no demonstration of any error on the face of the record.

19. The respondent has stated that the applicant has failed to comply with the orders of maintenance made by the trial court. That he is a contemnor who does not deserve any audience before the court.

20. The applicant denies that he has disobeyed the court’s orders. He states that he has made a lump payment of Kshs 100,000/- and has continued to remit Kshs 20,000/- monthly as the trial court directed.

21. It is trite that courts do not make orders in vain. A person to whom a court order is directed is obliged to obey said order however unpalatable it may be, unless or until the same is reviewed and/or set aside. The trial court heard from both parties before making the Ruling of July 13, 2021.

22. It is trite law that order made by a properly constituted court of law must be obeyed. In the case of Hadkinson v Hadkinson [1952] ALL ER it held:-“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharge.The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

23. Nearer home, in the case of Econet Wireless Kenya Ltd v Minister For Information of Kenya & another [2005] eKLR, the court relying on the decision of the Court of Appeal in Gillab Chand Pupatlal Shah & another Civil Application No 39 of 1990 stated that:-“It is essential for the maintenance of the rule of law and order that the authority and dignity of our courts are upheld at all time. The court will not condone deliberately disobedience of its orders and will not shy away from its responsibilities to deal firmly with proved contemnors.”

24. Finally, on the point in Teachers Service Commission v Kenya Union of Teachers & 2 others [2013] eKLR the court stated as follows:-“It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed.”“A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door. It one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”

25. Instead of complying with the orders made by the trial court, the applicant has decided to ‘cherry pick’ and to adjust the orders to suit his own desires. Instead of making the payments ordered by the court the applicant decided to pay only Kshs 20,000 per month (though he has not annexed any proof of these payments), but has decided to ignore the orders on payment of school fees. Therefore, the applicant has decided to adjust the court’s orders to suit his wishes. This is highly contemptuous.

26. The applicant laments that the respondent enrolled the minors in a school which required a higher payment of school fees than their previous school. However, the respondent countered that the applicant had offered to pay as school fees the amount that he cited to pay in the minors previous school. There is no evidence that he has done so. Instead, the minors were given demand letters for their fees. As a responsible father, the applicant at the very least ought to have gone to the school to seek to reach some arrangement regarding payment of school fees.

27. The applicant claims that he is likely to suffer substantial loss if the stay orders are not granted. As stated earlier this matter relates to the welfare of minors and it is in the best interest of said minors that will be given priority. The lamentations of the applicant are secondary. Who does he expect will maintain his children?

28. In my view payment of Kshs 20,000/- monthly does not cut it. The applicant has not shown that he has made sufficient efforts to obey the court’s orders. He is effectively a contemnor and deserves no audience from this court until the contempt is purged.

29. It is trite that he who comes to equity must come with clean hands. It is duplicitous of the applicant to approach this court seeking to stay orders, which he has in any event disobeyed.

30. In the case of MN v TAN & another [2015] eKLR a case which is on all fours with the present case the court held as follows:-“A valid court order has to be obeyed or complied with regardless of how aggrieved a party is about it. The order has the force of law. It is not a mere wish or proposition. Disobedience or non-compliance with it attracts severe consequences. It would appear to me that the appellant believes that the orders of July 30, 2013 are not valid, and has explained why he has chosen to disregard or disobey them. Yet he is bound to obey the orders for as long as they are still in force. He has no choice, he cannot decide when and how to obey or comply with them.The appellant has applied to the court for a discretionary relief, yet he is not ready to obey the orders that he is seeking relief against it. He has therefore come to court with unclean hands. The court cannot exercise discretion in favour of such a litigant who has no respect for the rule of law” (own emphasis).

31. The applicant cannot approach this court seeking to stay orders which he has not fully obeyed. That amounts to an abuse of court process.

32. I find no valid grounds to stay the orders made on July 13, 2021. The welfare of the children is paramount consideration and cannot be stayed, as this would be detrimental to the welfare of the said children.

33. I am fortified in this finding by the decision of my learned brother Hon Justice William Musyoka who is in the case of ZMO v EIM [2013] eKLR held as follow:-“As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about.Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same”. (Own emphasis)

34. All in all I find no merit in this application for stay of execution. The notice of motion dated February 24, 2022 is dismissed in its entirety. For avoidance of doubt the orders of July 13, 2021 made by the Children’s Court in Case No E 180 of 2020 remain valid and enforceable. This being a family matter I made no orders on costs.

DATED IN NAIROBI THIS 1ST DAY OF JULY, 2022. ………………………MAUREEN A. ODEROJUDGE