[2017] KEHC 3823 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 208 OF 2015

J M M .............................................................................................APPELLANT

VERSUS

M M M (Suing thro’ mother and next friend

A K ........................................................................................... RESPONDENT

RULING OF THE COURT

1. The Application dated 29/02/2016 is brought pursuant to the Provisions of Order 42 Rule 6 of the Civil Procedure Act and all other enabling Provisions of the law.

2. The Appellant/Applicant seeks this courts orders staying execution of the Judgement, decree and all consequential Orders in Machakos CMCC (Children Case No.11 of 2015 pending the hearing and determination of the Appeal.

3. The Appellant/Applicant also seeks that he be allowed to continue paying child maintenance of Kshs. 1250/= per month to the Respondent pending the determination of the Appeal.

4. The Application is premised on grounds that the Applicant being dissatisfied by the Judgment aforestated has appealed against the whole judgement; the Memorandum of Appeal as well as the Application are merited; the Respondent has already obtained a Notice to Show Cause from the Subordinate Court against him; that the Appellant stands to suffer irreparable pecuniary loss as the Respondent may not be able to refund the monies in the event the appeal succeeds, that the Applicant has since sought to be supplied with copies of certified proceedings and judgment; that the Respondent will not be prejudiced which she still receives sums earlier agreed upon between her and the Applicants; that the Applicants is ready and will to abide by reasonable conditions deemed fit by the court.

5. The Appellant/Applicant swore affidavits in support of the Application. He deposed that he has been ordered by the subordinate court to pay child maintenance sums of Kshs.5,000/= per month which in his view is quite high as he doesn’t have the means and seeks to be allowed to continue paying a sum of Kshs.1,250/= that had been agreed upon between him and the Respondent before the District Children’s Officer Machakos. He further deposed that he stands to suffer prejudice and substantial loss if the Respondent proceeds to demand the sum of Kshs.5,000/= per month and further use the threat of civil jail against him and further that the Respondent is not likely to refund the monies if the Appeal succeeds.

6. In her Replying Affidavit, the Respondent states that the child in issue is still young with health problems coupled by the fact that the Respondent is incapable of searching for a job. She further deposed that the Applicant who is the biological father of the child is a man of means running several businesses at Katuaa area of Machakos earning an income of over Kshs.40,000/= and should therefore provide reasonably maintenance for the child. She further deposed that if the Application is allowed, she and the child stand to suffer untold hardship.

7. It was submitted for the Applicant that the sums ordered by the subordinate court are way beyond the means of the Applicant and should be brought down to Kshs.1,250/=. It was further submitted that parental responsibility is supposed to be joint as between the Applicant and Respondent and it is unfair to saddle the sole responsibility upon the Applicant contrary to the provisions of Article 53 (1) (e) of the Constitution.

8. The Respondent on the other hand submitted that the Applicant has not satisfied the criteria set out in. Order 42 Rule 6 of the Civil Procedure Rules in that he has not shown that he stands to suffer any substantial loss and further the Application filed herein is an afterthought after the was served with a Notice to show cause and finally no security has been offered by him.

9. It is the law that in exercising its descretion to grant stay of execution the question to be decided is whether substantial loss may loss may result unless the stay order is granted, whether the Application has been made without delay and whether the Applicant has given security. (see Order 42 Rule 6(2) of the civil Procedure Rules).

10. It has been stated in the case of MUKOMA =VS= ABUOGA [1988] KLR 645 thus:

“...........................................The cornerstone of both jurisdictions that is what has to be prevented because such a loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo.”

11. With the law and the above authority in mind, I do note that judgment in the case appealed against was entered on the 18/11/2015 and the Applicants filed the Memorandum of Appeal on 22/12/2015 and the Appeal on 22/12/2015. The present Application was filed on the 29/02/2016. A similar application for stay of execution dated 18/12/2015 was filed on 28/1/2016 before the subordinate court but same was withdrawn by the Applicant on 15/03/2016. The Applicant has also annexed a copy of a Notice to show cause dated 3/2/2016 which indicated that the Applicant was being pursued for the payment of the sums ordered by the trial court as maintenance for the child in issue. It is therefore clear that the application herein was filed after a period of over four months. Indeed prior to the filling of the Applications the Applicant seems to have complied with the order to pay Kshs.5,000/= per month as maintenance for the child. The Applicant if aggrieved and having lodged a Memorandum of Appeal is entitled to come to court and seek redress. I find the four month period not inordinate in my considered view.

12. The issue to be addressed would therefore be whether the Applicant will suffer substantial loss if the order sought is not granted. The trial court ordered the Applicant to be remitting to the Respondent Kshs.5,000/= every month for the child’s upkeep. The Applicant maintains that the same is way beyond his means as he can only afford Kshs.1,250/= as earlier agreed between him and the Respondent before the District Children Officer Machakos. The Applicant has denied the Respondents claim that he is a businessman earning an income of about Kshs.40,000/=. The Applicant maintains that he will suffer substantial loss if the stay is not granted. However the Applicant admits that he has been paying the sums as ordered by court so far albeit with some difficulties since he has been relying on relatives to chip in and wants to be allowed to pay Kshs.1,250/= per month. Indeed the appeal is yet to be heard and it is taken that the issue of the Applicant’s financial status vis a vis the alleged agreement entered into before the children officer was canvassed before the trial which came to the finding that the Applicant was in a position to pay Kshs.5,000/= monthly as upkeep. It is this decision which has precipitated this Appeal. At the centre of this matter and at the trial court is the issue of the child in issue whose interests must be considered even as the parents fight it out in the courts. The child’s best interest as per the provisions of the Children’s Act 2001 and Article 53 of the Constitution are quite paramount. The issue of whether the Applicant is able to pay the amounts ordered by the trial court shall have to be determined during the appeal. However the paramount issue now is whether the Child’s maintenance will have to be shelved until the appeals is heard and determined. The Child’s maintenance should not be interrupted at this juncture. The Applicant had been paying Kshs.5,000/= per month and if the same is to be reduced will greatly affect the child’s best interest. In any event the Applicant had been paying this amount in the past and therefore same should not be disturbed as long as the appeal is fasttracked. I am therefore convinced that the Applicant has not shown that he stands to suffer substantial loss if stay is not granted.

13. As regards the issue of security, the Applicant claims he is ready and willing to abide by any conditions to be made by this court but has suggested that he be allowed to continue paying Kshs.1,250/= as earlier agreed prior to the filing of the case before the trial court. I think this issue would be best tackled during appeal. As the Applicant has not denied being the biological father to the child, it follows that he cannot escape from parental responsibility. The Applicant maintains that the Respondent has been employed in a certain shop and therefore she should also chip in. Indeed the Respondent being the mother of the child daily provides support to the child by providing the emotional, psychological comfort in addition to handling the child’s laundry. Due to the hard economic times the sum of Kshs.5000/= pales far below what every household relies on. The Respondents parental obligation can be implied from the fact that she is the one who stays with the child and takes care of her even as she tries to eke out a living for herself and the child. In the premises, I find the trial court’s order compelling the applicant to pay Kshs.5,000/= monthly as maintenance is in my view sufficient security so far met by the Applicant and who is ordered to continue to comply as the appeal is canvassed.

14. In the result it is the finding of this court that the Applicant application dated 29/02/2016 lacks merit. The same if ordered dismissed. The costs hereof shall abide in the Appeal.

It is so ordered.

Dated, signed and delivered at MACHAKOSthis 17th day of JULY2017.

D. K. KEMEI

JUDGE

In the presence of:-

Alice Kanini – Respondent in person

C/A: Kituva