[2017] KEHC 1839 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 4 OF 2017

S M (suing in her capacity as

the mother and next friend to J M &

C M....................…….....….APPELLANT/APPLICANT

V E R S U S

B K M.....................................................RESPONDENT

R U L I N G

1. This is a ruling on the application dated 27/02/2017 seeking for orders that the orders made on 14/02/2017 by Hon. S.K. Mutai Principal Magistrate in Embu Children's Case No. 15 of 2013 be stayed pending the hearing and determination of this appeal.

2. The applicant states that the learned magistrate made orders that his land L.R. Mbeere/Kirima/[particulars withheld] be sold and the the proceeds be deposited in a joint account of the parties to cater for the education of a minor. The applicant has now appealed against the said orders and in the event that say is not granted, the appeal may be rendered nugatory.

3. The applicant further states that the applicant works as a senior teacher and has the capacity to pay school fees for the children. The applicant fears that if the orders are not granted, he is likely to lose his land.

4. The respondent opposes the application on grounds that he has been maintaining his children all along but has of late become financially incapacitated. He then applied for an order for sale of the land LR. Mbeere/Kirima/[particulars withheld] to raise funds for the education of his child J M. The land was to be purchased by a buyer who is a relative one G K M since the year 2013.

5. The applicant was at all material times aware of the order but did not challenge it. The parcel of land has not been developed by the applicant. She lives and cultivates another parcel of land.

6. It is further argued that if stay is granted, the manor may have to stay out of school for a long time. The respondent's net salary is only Kshs.13,777. 30 from which he pays rent and maintains himself for he is no long cohabiting with the applicant.

7. The amount is grossly in sufficient to pay the fees. The respondent is sickly having undergone head surgery and is still under medication. He is therefore incapable of supplementing his salary income. The school fees per term is Kshs.26,880/ per term and the respondent is not likely to afford it.

8. The parties argued the application by way of written submissions which were filed by their counsels. Messrs Victor Andande & Co. represents the applicant while Rose Njeru & Co. are for the respondent.

9. It is the applicant's argument that the lower court case being a children's matter, the sale of the land was unwarranted. The issue of the land was not included in the pleadings of the case. As such it is argued that stay should be granted pending appeal. She is also apprehensive that the proceeds of the same may be misappropriated by the respondent and yet the child is far from completing her studies.

10. I have perused the judgment by Hon. Biwott delivered on 24/07/2013 and noted that the court ordered among other things:-

That the defendant (respondent shall meet medical and educational needs of the minor till she completes her studies uninterrupted, in default the plaint (applicant herein) may move the court to attach his salary.

11. The applicant was granted the custody of the minor J M and ordered to meet the non-educational needs of the child i.e. clothes, food and shelter.

12. The respondent was later granted orders for removal of the caution to his land L.R. Mbeere/Kirima/[particulars withheld] for purpose of selling it to meet his obligation of paying the school fees of the minor.

13. The appeal herein does not challenge the orders in the judgment which are still valid. It challenges the order made on 14/02/2017 by Hon. S.K. Mutai for sale of the land to meet the educational costs for the minor. The applicant is opposed to the said order in that she is likely to lose the land “in the name of school fees” as she puts it.

14. The applicant does not offer an alternative in payment of the school fees for their child. The respondent who is obligated to pay the school fees pleads financial incapability due to a reduced salary due to various deductions leaving him with a net income of Kshs.13,000/= which he says is barely enough to pay his rent and maintain him.

15. The respondent does not offer an alternative of school fees payment which is his obligation. He further states that he sis sickly having undergone a brain operation and is therefore unable to work and supplement his income.

16. The said orders of 14/02/2017 arose from the respondent's application dated 5/10/2016 in which he demonstrated his inability to meet the educational expenses of his daughter. He also demonstrated that the applicant has to other parcels of land that she uses to cultivate and where her home is situated namely L.R. Nos. Mbeti/Gachoka/[particulars withheld] and Mbeti/Gachoka/[particulars withheld].

17. The orders were made after the participation of both participation of both parties as shown by the court proceedings of 8/11/2016 and 10/01/2017. Both parties were present during the delivery of the ruling on 14/02/2017.

18. It is therefore not true that the applicant was not aware of the orders made on 14/02/2017 as she wants the court to belief.

19. This application for stay pending appeal requires that the applicant satisfies the court on the following:-

(a) That the application is brought without undue delay.

(b) That the applicant is likely to suffer substantial loss if the orders for stay are not granted.

(c) That the applicant has made an offer for security for the due performance of the decree.

20. The orders the applicant seeks to appeal against were made on 14/02/2017. This application was filed on 27/02/2017 which was about 13 days later. The application was therefore filed without undue delay.

21. Is the applicant likely to suffer substantial loss in the event that stay is not granted? The applicant has not explained her interest in the parcel of land ordered to be sold. A copy of official search shows that the land is registered in the name of the respondent who is obligated to pay the school fees. The lower court proceedings show that the parties herein are husband and wife who have since separated.

22. It can then be rightly assumed that the land in question is a matrimonial property. The applicant is therefore entitled to a share of the land should division of property arise after a divorce. It this was to happen, the court has its own ways of taking into consideration all the factors that may arise in such a case. The applicant is not likely to suffer any loss.

23. The law places the obligation to maintain and educate children to both parents. In as much as the court defined the responsibility of each of the parties in its judgment, the minor needs education which must be provided. The court has a duty of making any orders for the best interests of the child. The interests of the parent is a secondary factor in this application. The applicant is looking at her interest in this application but not at that of the child.

24. I find that the applicant has failed to demonstrate substantial loss in this application.

25. Has the applicant offered security for the due performance of the decree or has she offered an alternative in meeting the school fees of the child.The answer is that she has not done so. The respondent managed to convince the magistrate that he was financially incapacitated and could not meet his legal obligation any more which was the basis of granting the order.

26. The applicant had filed an application for contempt of court dated 3/07/2016 seeking for orders against the respondent for committal to civil jail which she did not prosecute for unknown reasons. May be this would have been a way out of the problem.

27. The applicant has expressed fear that the respondent may misappropriate the sale proceeds before the child completes her education. It is important to note that the court directed that the proceeds be deposited in a joint account of the parties. This is a sound safeguard for the funds in that the respondent will not withdraw any money from the account without the applicant's consent.

28. It is my finding that the applicant has failed to satisfy the main requirement of this application.

29. I find the application lacking merit and I hereby dismiss it with costs.

30. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Mwiria for Rose Njeru for respondent

Applicant present