[2022] KEHC 27021 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

HIGH COURT FAMILY APPEAL NO. E096 OF 2021

JMR ....................................................APPELLANT

VERSUS

RNM..................................................RESPONDENT

RULING

1. Before this Court for determination is the Notice of Motion dated 10th September 2021by which JMR. the Appellant/Applicant seeks the following orders:-

“1. Spent.

2. Spent

3. THAT this Honourable court be pleased to issue an order of stay of the judgment delivered by the subordinate court in Children’s Case No. 1666 of 2019 pending the hearing and determination of the Appeal.

4. THAT the costs of this application be in the cause.

2. The application which was premised upon Order 40 Rule 1and3, Order 51 Rule 1 Section 1A,1Band3Aof theCivil Procedure Act was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent ROSE NJAMBI opposed the application through her Replying Affidavit dated 29th September 2021. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 24th November 2021 whilst the Respondent relied upon her written submissions dated 1st February 2022.

BACKGROUND

4. Vide a judgment delivered on 2nd September 2021 in Childrens Case No. 1666 of 2019 the learned Senior Resident Magistrate Hon G.N. OPAKASI made the following orders: -

“a) The plaintiff shall have the actual custody, care and control of the minors.

b) The parties shall have joint legal custody of the minors.

c) The defendant shall have access of the minors everyalternate Saturday of the month from 10. 00 am to Sunday at 4. 00 pm.

d) The parties shall share custody of the minors equally during school and public holidays.

e) The defendant shall cater for the minors’ school fees and school related expenses until they all attain their first university degrees or an equivalent thereto.

f) The defendant shall provide for the medical needs of the minors.

g) The defendant shall cater for the minors food at the rate of Kshs 30,000/- per month payable to the plaintiff by the 5th of every month.

h) The plaintiff shall cater for the minors shelter, clothing, household utilities and part of the remaining food expenses.

i) Both parties shall cater for the minors entertainment while in their custody.

j) Partiers are at liberty to apply.

k) No orders as costs.”

5. Being aggrieved by said judgment the Applicant filed the Memorandum of Appeal dated 3rd September 2021. Immediately thereafter, the Applicant filed this present application seeking a stay of the orders made by the subordinate court pending the hearing and determination of his appeal.

6. The Appellant avers that the trial court in its judgment issued fresh conditions and directions that the Appellant be required to pay a sum of Kshs 30,000 monthly as maintenance for the minors, which conditions the Applicant states that he is unable to meet currently.

7. The Applicant avers that he is not in gainful employment and has struggled to meet the needs of the minors by taking soft loans from friends and relatives. That despite his precarious positon, he has endeavoured to ensure that all the needs of the minor children are met.

8. Finally, the Applicant submits that unless the stay is granted as prayed he stands to lose his liberty as the respondent may move to execute by taking out Warrants of Arrest against him (which she has done before).

9. The Respondent on her part submits that the present application is an afterthought brought in bad faith and is deliberately designed to delay the speedy disposal of this matter. She states that the Applicants’ reluctance to pay the monthly maintenance of Kshs 30,000 stems from his fear that the Respondent may personally benefit from the funds.

10. The Respondent avers that the Applicant is yet to comply with the orders of the court. She challenges the Applicants’ claim that he cannot afford to pay the monthly maintenance and states that the Applicant retained control of all the family business from which he reaps profits as well as enjoying the matrimonial home and the luxury of four (4) vehicles at his disposal.

ANALYSIS AND DETERMINATION

11. I have considered the application before this court, the Affidavit in Reply as well as the written submissions filed by both parties. The only issue for determination is whether the prayer for a stay of judgment is merited.

12. Order 42 Rule 6(2) of the Civil Procedure Rules 2010 provide for the conditions to be met in considering an application for stay of execution. The court must satisfy itself that-

(a) The application has been brought without undue delay.

(b) The Applicant stands to suffer substantial loss if the stayis not granted.

(c) The Applicant has provided security for the due performance of the decree.

13. In this case the judgment in issue was delivered on 2nd September 2021. The present application was filed on 10th September 2021 barely one (1) week after delivery of said judgment. Accordingly, I am satisfied that the application was filed in timeous manner.

14. The impugned orders were made in relation to the maintenance and upkeep of a minor. It is trite law that in matter concerning the welfare of children courts are required to give priority to the best interest of the child.

15. The Constitution of Kenya 2010 provides at Article 53 (2) that:

(2) A child’s best interests are of paramount importance in every matter concerning the child.”

16. Likewise Children Act at Section 4(2) provides as follows:-

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.(own emphasis)

17. In the case of BHUTT VS BHUTT – Mombasa HCCC No. 8 of 2014, the Court held as follows:-

“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis)

18. The Applicant claims that he stands to suffer great prejudice if the orders are not stayed as the amount awarded as maintenance were in his view excessive and that he is not able to afford to make said payments.

19. The question of whether or not the maintenance awarded is excessive is one which cannot be determined at this interim stage. That is a matter, which can only be determined upon a full hearing of the Appeal.

20. The orders which the Applicant seeks to stay relate to the maintenance of the minors. It cannot be in the best interests of the minors to stay said orders. The Applicant has not denied paternity and as such, he together with the Childrens mother has an obligation to provide for the needs of their children.

21. It has been revealed that the Applicant has not complied with the orders of maintenance made by the Children Court. The Applicant has not denied this allegation. The Applicant is reminded that courts do not make orders in vain. Parties are obliged to obey court orders even when they do not agree with said orders.

22. It is trite that he who comes to equity must come with clean hands. It is duplicitous of the Applicant to approach this court seeking to stay orders, which he has in any event disobeyed.

23. In the case of MN – VS – TAN & another [2015] eKLR a case which is on all fours with the present case the court held as follows:-

“ A valid court order has to be obeyed or complied with regardless of how aggrieved a party is about it. The order has the force of law. It is not a mere wish or proposition.Disobedience or non-compliance with it attracts severe consequences. It would appear to me that the appellant believes that the orders of 30th July 2013 are not valid, and has explained why he has chosen to disregard or disobey them. Yet he is bound to obey the orders for as long as they are still in force. He has no choice, he cannot decide when and how to obey or comply with them.

The appellant has applied to the court for a discretionary relief, yet he is not ready to obey the orders that he is seeking relief against it. He has therefore come to court with unclean hands. The court cannot exercise discretion in favour of such a litigant who has no respect for the rule of law” (own emphasis).

24. The Applicant cannot approach this court seeking to stay orders which he has never obeyed. That amounts to an abuse of court process.

25. I find no valid grounds to stay the orders made on 2nd September 2021. The welfare of the children is paramount consideration and cannot be stayed, as this would be detrimental to the welfare of the said children.

26. I am fortified in this finding by the decision of my learned brother Hon. Justice William Musyoka who is in the case of ZM v EIM [2013] eKLR held as follow:-

“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. 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”. (Own emphasis)

27. Based on the foregoing I find no merit in the present application. The same is dismissed in its entirety. For avoidance of doubt the orders of 2nd September 2021 made by the Childrens Court in Case No. 1666 of 2021 remain valid and enforceable. This being a family matter I made no orders on costs.

DATED IN NAIROBI THIS 18TH DAY OF MARCH 2022.

..........................................

MAUREEN A. ODERO

JUDGE