[2004] KEHC 570 (KLR)
The court found that the only issue canvassed before it in the application for stay was the maintenance order requiring the appellant to pay Kshs.100,000 per month. The issues of custody and separation were not raised or argued. Therefore, the court's order staying all the lower court's orders, including those on...
Source-derived case information.
- Citation
- [2004] KEHC 570 (KLR)
- Parties
- Appellant: Joseph Boro Ngera; Respondent: Elizabeth Wanjiku Ngera
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 56 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Stay Orders
- Outcome
- application for review allowed in part
- Legal Topics
- Maintenance Orders, Custody of Children, Review of Court Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Boro Ngera
Appellant
Elizabeth Wanjiku Ngera
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Stay Orders
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the court's ruling dated 3rd June 2004 granting a stay of all lower court orders, including custody and separation, instead of only maintenance.
- 2 Whether the order of stay should be reviewed, varied, or set aside to reflect the actual issues canvassed before the court.
Ratio Decidendi
The court found that the only issue canvassed before it in the application for stay was the maintenance order requiring the appellant to pay Kshs.100,000 per month. The issues of custody and separation were not raised or argued. Therefore, the court's order staying all the lower court's orders, including those on custody and separation, was made in error. This constituted an error apparent on the face of the record, justifying review. The court accordingly reviewed and clarified its ruling to state that the stay only applied to the maintenance order, and all other issues, including custody and separation, should proceed before the lower court.
Court Disposition
application for review allowed in part
Orders
- The ruling of 3rd June 2004 is reviewed to clarify that the stay of execution applies only to the maintenance order and not to custody or separation.
- The separation and maintenance cause shall proceed for hearing before the lower court on all issues except maintenance, which remains stayed and varied by this court.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIV APP 56 OF 04
JOSEPH BORO NGERA ………………….. APPELLANT
VERSUS
ELIZABETH WANJIKU NGERA ………… RESPONDENT
RULING
The Respondent in this Appeal, Elizabeth Wanjiku Ng’era has made an Application under the provisions of Order XLIV Rule 1 Civil Procedure Rules seeking for orders that this Court reviews, varies or set aside its orders dated the 3rd of June 2004. The Application is supported by the annexed affidavit of Elizabeth Wanjiku Ng’era. The grounds in support of the said Application are that this Court did deliver its ruling on the 3rd of June 2004 granting the Appellant’s Application for stay pending the hearing of this Appeal. The Respondent states that at Page 9 of the Court’s Ruling, the Court stayed the orders granted by the lower Court on the 6th of April 2004 pending the hearing and determination of the Appeal. The Respondent further states that apart from the order of maintenance, the lower Court had granted custody of the children of marriage to the Respondent. The Respondent further states that the lower Court also granted an order of separation pending the hearing of the Separation and Maintenance Cause. The Respondent further stated that at Page 8 of the said ruling the Court found that the Appellant had not raised the issue of custody of the children in his Application yet at page 9 of the said ruling the Court ordered stay of the orders of the lower Court including those of custody. From the above set of circumstances the Respondent stated that it was evident that there was an error apparent the face of the record which error ought to be rectified on review. The Application is opposed. The Appellant has filed Grounds in Opposition to the Application. Miss Mathenge and Mr. Okeke, Counsel for the Respondent and the Appellant respectively argued the Application before me.
I have considered the Application and the Grounds of Opposition filed by the parties in this Application. I have also considered the rival arguments made by the Counsel for the Respondent and Counsel for the Appellant. I have also had the occasion to re-read the Application for stay of execution made by the Appellant and the proceedings of the Court prior to the delivery of the ruling dated the 3rd of June 2004. It is clear that the thrust of the Appellant’ Application for stay of execution pending Appeal was the order made by the lower Court that he pays the sum of Kshs.100,000/- per month as maintenance. In his arguments before Court, the Counsel for the Appellant urged this Court to allow the Application for stay based on the fact that the order made by the lower Court as regards the amount of Kshs.100,000/- was unconscionable and further that he was incapable of paying the same. After considering the said rival Submissions, this Court ordered that the Appellant pays the sum of Kshs.30,000/- per month as maintenance apart from the fact that the Appellant was required to pay the school fees for the children and also provide for their clothing. The issues of custody or separation was not canvassed before this Court in the said Application. The order of stay of execution of all the orders issued by the lower Court was therefore granted in error. There was an error apparent on the face of the record. I hereby review the said ruling and state that the order that the Appellant was granted only stayed the issue of maintenance and nothing else.
This Court was, and still is, concerned that the parties to this suit in pursuit of the resolution of their matrimonial dispute, appear to have lost sight of the fact that the welfare of their children is involved. In its ruling dated the 3rd of June 2004, this Court stated at page 9 as follows: - “I would advise the parties in this Appeal to seek a way of resolv ing their marital dispute so that it does not affect the well being of the children. The faster they would resolve the same the better it would be for the children.”
It is with this position in mind that this Court ordered that the parties to this Appeal resolve their marital dispute either amicably or through the Court process in the lower Court. I do therefore order that the separation and maintenance cause do proceed for hearing before the lower Court on all the issues raised before it save for the issues of maintenance which has been stayed and varied by this Court. There shall be no orders as to costs.
DATED at NAKURU this 11th day of August 2004.
L. KIMARU
AG. JUDGE