[2022] KEHC 12129 (KLR)

In re NKA & NMA (minors) (Civil Appeal E010 of 2021) [2022] KEHC 12129 (KLR) (Family) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12129 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E010 of 2021

MA Odero, J

May 6, 2022

IN THE MATTER OF NKA AND NMA (minors)

Between

AAM

Appellant

and

SNK

Respondent

Ruling

1. Before this Court for determination is the chamber summons dated January 28, 2021 by which the Appellant/Applicant AAM seeks the following orders:-“1. Spent.2. Spent3. that there be ordered a temporary stay of the orders granted by the Honourable MA Otindo (Mrs) delivered in her ruling on 20th day of January 2021 in Children case No 146 of 2018 pending the hearing and determination of the Appeal”

2. The application which was premised upon section 3A of the Civil Procedure Act, and section 6(1), 24 (1) of the Children’s Act, Article 53 (e ) of the Constitutionof Kenya and all enabling provisions of law was supported by the Affidavit of even date sworn by the Applicant.

3. SNK the Respondent opposed the application through her Replying Affidavit dated July 28, 2021. The application was canvassed by way of written submissions. The Appellant filed the written submissions dated September 20, 2021 whilst the Respondent relied upon her written submissions dated September 30, 2021.

Background 4. The Appellant and the Respondent are the biological parents of two minor children ‘NKA’ and ‘NMA’. The Appellant filed in the Children’s Court Case No 146 of 2018 a plaint dated February 5, 2018 seeking custody care and control of the two minors. Whilst the Defendant initially defended the suit, the parties later entered into a consent that custody of the two minors be awarded to the Respondent who was the childrens biological mother.

5. It was then left to the lower court to make a determination regarding the maintenance and upkeep of the minors. After hearing both parties, the learned trial magistrate delivered her judgment on August 13, 2019 and ordered that the Appellant provide for the minors as follows:-“1. The Plaintiff shall continue providing for school fees and related expenses, medical care and Kshs 7000/- per month for food expenses.2. The Defendant shall provide shelter and clothing expenses for the children and any other needs for the minors.”

6. Thereafter the Respondent filed an Application dated July 27, 2020 seeking a review of the orders of maintenance on grounds that the Applicant had been appointed as an envoy to Angola and as a consequence of said appointment his financial status had considerably improved. The Respondent sought to have the maintenance enhanced to Kshs 190,500/- amongst other prayers.

7. In a Ruling delivered on January 20, 2021 the court allowed the application for review and directed that the monthly maintenance payable by the Applicant be increased from Kshs 7,000 to Kshs 43,000. Being aggrieved by this decision the Applicant filed the Memorandum of Appeal dated January 28, 2021. Contemporaneously with said Appeal, the Applicant filed this present application seeking a stay of the orders made by the lower court pending the hearing and determination of the Appeal.

8. As stated earlier the Respondent strenuously opposed this Application. She averred that contrary to the allegations made by the Applicant he was granted an opportunity by the lower court to be heard before the maintenance orders in question were reviewed. The Respondent maintains that the review was merited given that she has minimal income whilst the Applicant had secured a diplomatic posting to Angola, and is now entitled to attractive salary and benefits. She urges the court to dismiss the application with costs.

Analysis and determination 9. I have carefully considered the application before this court, the Replying Affidavit filed by the Respondent as well as the written submission filed by both parties. The only issue for determination is whether the court should grant the stay order being prayed for.

10. Order 42 Rule 6(2) of the Civil Procedure Rules 2010provide 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.

11. In this case of the impugned Ruling was delivered on January 20, 2021 whilst the current application was filed barely one week later on January 28, 2021. As such, I am satisfied that the application was filed in a timeous manner.

12. The application relates to maintenance orders which orders were made for the welfare and upkeep of minors. It is trite law that courts are required in all matters concerning children to give priority to the best interests of the child.

13. The Constitutionof Kenya 2010provides at Article 53 (2) that:(2)A child’s best interests are of paramount importance in every matter concerning the child.”

14. 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)

15. In the case of BhuttvBhutt – 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 the Constitution.” (Own emphasis)

16. The Applicant submitted that he was not granted an opportunity by the trial court to be heard. However, this is not the correct positon.

17. The lower court initially declined to grant the orders for review of maintenance ex parteand instead set down the matter for inter parties hearing. It is only after hearing both parties that the orders reviewing the maintenance were made. As such, it is manifest that the Applicant was granted a hearing before the said orders were reviewed.

18. The Applicant further submits that he is likely to suffer substantial loss if the stay orders are not granted. That he is saving money to cater for the university education of his children and argues that since he had faithfully adhered to the orders requiring him to remit Kshs 7,000 monthly as maintenance, the court ought not to have reviewed that maintenance upwards.

19. Whilst it is commendable that the Applicant is putting money aside in order to finance the University education of his children, that does not mean that the minors should be derived of their current needs and requirements.

20. The Applicants argument that there existed no basis to review the orders of maintenance is also not sound as the trial court received a letter from the Foreign Ministry confirming the deployment of the Applicant to Angola and this is what formed the basis of the courts decision to review the maintenance.

21. The Applicant submitted that his posting as a diplomat will only last for 48 months after which he may be unable to afford the maintenance of Kshs 48,000 monthly. He argues that this may lead to a decline in the living standards of the minors which would be detrimental to their welfare. I am not persuaded by this argument. My view is that the minors ought not be deprived at the present time on the off-chance that the Applicant may lose his diplomatic posting in 48 months. It is normal for families to adjust based on the resources which are available to them from time to time.

22. In any event it is not a given that the Applicant is certain to loose his diplomatic posting upon the expiry of his term. There exists the very real possibility that his term may be reviewed, or indeed, that he may be promoted. Moreover, the trial magistrate did in her Ruling direct that the orders made were subject to review after 48 months depending on the position of the parties at that time. I find that the Applicant has failed to show what substantial loss he is likely to suffer by providing for his own children.

23. The orders reviewing the maintenance were made by the trial court to ensure that the needs of the minors were best taken care of. It would not be in the interest of the minors to stay said orders. The Applicant is better advised to pursue the main appeal and obtain a final judgment on the matter.

24. I am fortified in this finding by the decision of my learned brother Hon Justice William Musyoka who is in the case of SM v EIM[2013] eKLR held as follows:“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 it. 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)

25. Based on the foregoing I find no merit in this application for stay. The same is hereby dismissed in its entirety. This being a family matter each party will bear their own costs.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. …………………………………MAUREEN A. ODEROJUDGE