[2014] KEHC 1260 (KLR)
The court found that the appellant had demonstrated sufficient cause for the grant of a stay of execution, noting that he had previously provided for the children but was now unemployed and unable to comply with the maintenance order. The respondent, despite being served, did not oppose the application. The court...
Source-derived case information.
- Citation
- [2014] KEHC 1260 (KLR)
- Parties
- Appellant: J I; Respondent: S K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 79 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application for stay of execution granted
- Judges
- LA Achode
- Legal Topics
- Child Maintenance, Stay of Execution, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J I
Appellant
S K
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the lower court's orders pending appeal should be granted.
- 2 Whether the appellant has demonstrated sufficient cause for stay, including risk of irreparable loss.
Ratio Decidendi
The court found that the appellant had demonstrated sufficient cause for the grant of a stay of execution, noting that he had previously provided for the children but was now unemployed and unable to comply with the maintenance order. The respondent, despite being served, did not oppose the application. The court emphasized the need to safeguard the interests of the minor involved and ordered that the appeal be heard on a priority basis. The stay was granted to prevent irreparable harm to the appellant and to ensure that the appeal is determined before any enforcement action is taken.
Court Disposition
application for stay of execution granted
Orders
- There be a stay of execution of the orders of the lower court issued on 25th June 2014 pending the hearing and determination of Civil Appeal No. 79 of 2014.
- The said Appeal shall be served and listed for hearing on priority basis to safeguard the interests of the minor involved.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION, MILIMANI LAW COURTS
CIVIL APPEAL NO.79 OF 2014
J I …………………………………………………………………APPELLANT
-VERSUS-
S K …………………………………………………………… RESPONDENT
RULING
The Notice of Motion before me is brought under Section 80and 99of theChildren’s Act No. 8 of 2001 and Order 42, rule 6of theCivil Procedure Rules. It is dated 2nd October 2014 and was filed under certificate of urgency. It mainly seeks for orders that there be a stay of execution of the orders of Hon. C. A. Ocharo issued on 25th June 2013, pending the hearing and determination of the appeal therefrom. The application relies on the grounds on the face thereof and on the supporting affidavit sworn by the Applicant/Appellant on 2nd October 2014.
The grounds of the application are that the appeal filed herein has high chances of success and unless the orders sought are granted the Applicant/Appellant will suffer irreparable loss and damage. This is said to be so because the lower court has issued a warrant of arrest against him for failing to maintain his children and his arrest is imminent.
I note however, from the averments of the Applicant/Appellant in the supporting affidavit, that he has hitherto provided for the children but is now without the means to do so, due to his current state of unemployment.
Mr. Olonde learned counsel for the Applicant/Appellant told the court that the Respondent had been duly served. Indeed an affidavit of service was filed in court on 6th November 2014 to that effect. The Respondent did not file a response or appear in court at the hearing. Mr. Olonde submitted that one of the children has since completed his secondary school education with the support of the Applicant/Appellant and is waiting to join the University and that the Applicant/Appellant was paying school fees for the second child who is now in secondary school before he lost his job.
Without delving into the merits and demerits of the pending appeal therefore, I find that this application has merit and should be granted.
Reasons wherefore I order that:
There be a stay of execution of the orders of the lower court issued on 25th June 2014 pending the hearing and determination of Civil Appeal No. 79 of 2014 filed in court on 1st October 2014.
The said Appeal shall be served and listed for hearing on priority basis to safeguard the interests of the minor involved.
That in any case the said Appeal should be listed for hearing before the close of this term.
It is so ordered.
SIGNED DATEDandDELIVEREDin open court this 27th day of November 2014.
…………………………………….
L. A. ACHODE
JUDGE