[2022] KEHC 17231 (KLR)

JMK (Suing as Father and Next Friend of the Minor) v CWK (Civil Appeal E043 of 2022) [2022] KEHC 17231 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17231 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E043 of 2022

SN Mutuku, J

December 14, 2022

Between

JMK (Suing as Father and Next Friend of the Minor)

Appellant

and

CWK

Respondent

Ruling

1. This Ruling relates to the Chamber Summons (the Application) dated May 26, 2022brought by theappellant/applicant under section 4(2), 24(1), 83,91 & 117 of the Children’s Act. The Application seeks the following orders:i.Spent.ii.That pending the hearing and determination of this application this honourable court be pleased to stay the orders issued by the trial court on 23/5/2022 to the extent that the plaintiff only pays a total of Kshs. 50,000/- in all school fees and levies and independently shops for the minor’s uniform books as well as other essentials to the exclusion of all other charges and levies that may be hidden so that ultimately theplaintiff/applicant is not condemned to pay any further amount that is not within his means.iii.That pending the hearing and determination of this application this Honourable court be pleased to grant the appellant telephone access to the minor when she is in custody of her mother as well as equal access to the minor when she is in school, midterm and on holidays and Z’s birthday, Easter and Christmas vacations be interchangeably celebrated per each consecutive year.iv.That pending the hearing and determination of this appeal thishonourable court be pleased to stay the orders issued by the trial court on 23/5/2022 to the extent that the Plaintiff only pays a total of Kshs. 50,000/- in all school fees and levies and independently shops for the minor’s uniform books as well as other essentials to the exclusion of all other charges and levies that may be hidden so that ultimately the Plaintiff/applicant is not condemned to pay any further amount that is not within his meansv.That pending the hearing and determination of this appeal this honourable court be pleased to grant the appellant telephone access to the minor when she is in custody of her mother as well as equal access to the minor when she is in school, midterm and on holidays and Z’s birthday, Easter and Christmas vacations be interchangeably celebrated per each consecutive yearvi.That the cost of this application be provided for.

2. This application was supported by an Affidavit sworn by the applicant in which he has deposed that heis the minor’s father; that by judgement delivered on 2/9/2021 he was ordered to cater for the minor’s school fees and school related expenses subject to the respondent and him agreeing on a school within his means; that they did not agree on a school and by application dated 9/12/2021 the Respondent applied to court seeking that he be committed to civil jail on grounds of non-payment of school fees; that in his application for review dated 14/12/2021 he sought telephone access of the minor when she was with her mother as well as access to the minor on half school holidays and public holidays an issue the trial court failed to consider in its judgement; that by ruling dated 23/5/2022 he was ordered to pay Kshs. 50,000 of the minor’s tuition fees together with all school related expenses while the respondent will top up the balance.

3. He has deposed that by the ruling dated 23/5/2022, the court suo moto reviewed its orders of 2/9/2021 and condemned him unheard; that he was not given an opportunity to submit on his financial circumstances, together with his dissatisfaction with his daughter’s school which barred him from visiting his daughter, and/or knowing about her schooling and that his application for review was dismissed on grounds that reviewing the current orders on access of the minor who is now 5 years old would psychologically affect the minor if separated for long from her mother. He argued, further, that the minor needs a secure relationship with both parents so as to be stable emotionally. It is his case that if the orders sought are not granted, he would suffer substantial loss which would prejudice his position to meet Zuri’s education needs.

4. The Application was opposed through a replying affidavit sworn by the respondent, the mother of the minor. She has deposed that the Applicant also filed his own application dated 14/12/2021 seeking review. She stated that theappellant had all the time and opportunity to reveal his financial status to the trial court and cannot now turn this appeal into a second trial over facts that have already been dealt with. She avers that it was never a condition spelt out in the judgement that theappellant should pay fees within his means as he alleges.

5. It is therespondent’s case that the appellant is the one who proposed to be paying an amount of Kshs 50,000; that she filed an application for contempt of court as the Appellant had failed to meet his obligations of paying school fees; that the matters of custody, access and school holidays were dealt with by the trial court and cannot be opened at the application stage; that her advocates filed an appeal being Civil Appeal No. E039 of 2022 which was served on the Appellant with the result that the Appellant rushed to file this appeal and application knowing well that she had filed an appeal ahead of him and that the best way to handle this matter is to have Appeal Nos. E039, E043 and E051 consolidated.

6. The Appellant swore a supplementary affidavit dated 24/6/2022 in which he stated that his appeal is not on the payment of Kshs 50,000 but on the Respondent’s blackmail that he must pay the entire sum of Kshs. 154,000 which is beyond his means so as to access his daughter when she is in school. He averred that Appeal No E051 of 2021 is primarily on custody, Appeal No. E039 of 2022 seeks to commit him to civil jail for being unable to afford Kshs. 154,000 per term in school fees and this appeal is on access to his daughter when she is on holiday and school. He stated that neither of the appeals in E051 and E039 has been complied with and by extension admitted and that it is premature to give directions on how they will be heard (consolidated).

Submissions 7. This Application was canvassed by way of written submissions. Both parties have filed their submissions. I have read the submissions and the issues argued by each party. I need not repeat the contents of the submissions given that they are on record. The arguments contained in the submissions are a reproduction of the depositions of the two parties contained in their affidavits.

Analysis and Determination 8. The appellant is seeking orders mainly to stay the orders issued by the trial court on 23/5/2022 as well as access to the minor aged 5 years. The guiding principle on all matters touch on children is found under article 53(2) which provides that:A child’s best interests are of paramount importance in every matter concerning the child.

9. The same principle is replicated in the Children Act. Numerous authorities, too, amplify this principle. In the case of DOB v DMA [2021] eKLR the court addressed itself on the issue as follows:“In matters concerning children, the best interests of the child are of paramount importance. The accepted principle in applications for stay of execution of maintenance orders in children’s cases is that the suspension of the maintenance order is not in the best interests of the child.”

10. Similarly, in RWW v EKW Civil Appeal No 13 of 2013 [2019] eKLR the court held that:“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.”

11. I have read the memorandum of appeal. Although this court has not had the benefit of the proceedings of the lower court save for the judgment given that the record of appeal has not been filed, I have noted that the appeal raises substantially similar issues as are being canvassed in this application. Granting of the orders sought in this application will be prejudicial to the Respondent because such orders will to some great extent affect the outcome of the appeal.

12. Guided by the principle of the best interest of the child as expounded in the above authorities, it is my considered view that delving into the issue of both maintenance and access to the child at this interlocutory stage is not fair in the circumstances of this case.

13. My considered view is that it would be prudent for the parties to seek to be heard substantively in the appeal so that all the issues can be canvassed and determined substantively. For this reason, I decline to grant the prayers sought in the Chamber Summons dated May 26, 2022. I direct parties to seek directions on the main appeal so that the same can be determined.

14. It is so ordered.

Dated, signed and delivered on 14thDecember, 2022. S. N. MUTUKUJUDGE