[2014] KEHC 6104 (KLR)
The court found that the applicant had not demonstrated sufficient grounds to warrant the grant of a stay of execution of the Children Court's judgment. The trial magistrate had the benefit of hearing and analyzing the evidence from both parties, and the court was not persuaded that the appeal raised arguable points...
Source-derived case information.
- Citation
- [2014] KEHC 6104 (KLR)
- Parties
- Appellant: J G K; Respondent: J A
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Family Appeal 13 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Child Maintenance, Stay of Execution, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J G K
Appellant
J A
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the Children Court judgment pending appeal.
- 2 Whether the applicant will suffer prejudice if stay is not granted.
- 3 What is in the best interests of the child in the context of the application for stay.
Ratio Decidendi
The court found that the applicant had not demonstrated sufficient grounds to warrant the grant of a stay of execution of the Children Court's judgment. The trial magistrate had the benefit of hearing and analyzing the evidence from both parties, and the court was not persuaded that the appeal raised arguable points or that the applicant would suffer prejudice if the stay was not granted. Most importantly, the court emphasized the best interests of the child, noting that maintenance and school fees are essential for the child's welfare. As such, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
FAMILY APPEAL 13 OF 2013
J G K…………………………..….....................APPELLANT
VERSUS
J A………………………………………….RESPONDENT
RULING
By way of a notice of motion dated 2nd April, 2013 the applicant/appellant herein seeks a stay of the judgment made by the Children Court delivered on 27th March, 2013 pending the hearing and determination of his appeal. The application for stay is opposed. The application was disposed of by way of written submissions and both parties did file in court their submissions.
I have carefully considered all the material placed before me in this matter. The decision of the Childrens Court which the applicant wishes to have stayed is the order that he pay a sum of Kshs. 4,000/= per month as maintenance as well as that he pays the child’s school fees directly to the school which the child attends. The applicant has filed an appeal against this decision in which he is basically challenging the results of the DNA test which found that he was the biological father of the child.
In determining an application of this nature a court will have to consider various factors:
The arguability of the appeal
Whether the applicant will suffer any prejudice in the event the stay is not granted
The best interests of the child as this is a childrens case
The trial magistrate had the benefit of receiving, hearing and analyzing the evidence from both parties. I have perused her judgment. At this point I do not wish to delve into issues which will form the basis of the appeal. It is my considered opinion that the stay sought is not merited. I therefore decline to grant a stay as sought. The present application is hereby dismissed with costs to the respondent.
Dated and delivered in Mombasa this 31st day of March, 2014.
M. ODERO
JUDGE
In the presence of:
Applicant in person
Mrs. Kipsang for Respondent
Court Clerk Mutisya