[2007] KEHC 3446 (KLR)
The court held that where paternity is disputed and is a central issue yet to be determined by the trial court, it is improper to impose parental responsibility and maintenance obligations on the alleged father before the issue is resolved. The court found that the appeal raises serious and substantial questions...
Source-derived case information.
- Citation
- [2007] KEHC 3446 (KLR)
- Parties
- Appellant: J.K.W; Respondent: K.W.K (Suing through the mother, A.M.M)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 9 of 2007
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted pending appeal.
- Legal Topics
- Child Maintenance, Parental Responsibility, Paternity Dispute, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.K.W
Appellant
K.W.K (Suing through the mother, A.M.M)
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a trial court can order maintenance before determining paternity where paternity is disputed.
- 2 Whether parental responsibility can be imposed prior to a finding of paternity.
- 3 Whether the application for stay of execution pending appeal is meritorious.
Ratio Decidendi
The court held that where paternity is disputed and is a central issue yet to be determined by the trial court, it is improper to impose parental responsibility and maintenance obligations on the alleged father before the issue is resolved. The court found that the appeal raises serious and substantial questions regarding whether a trial court can fairly and reasonably order maintenance before determining paternity. Consequently, the court exercised its discretion to grant a stay of execution of the maintenance order pending the hearing and determination of the appeal, finding the application meritorious.
Court Disposition
Application for stay of execution granted pending appeal.
Orders
- Prayer 3 of the Notice of Motion dated 15th February, 2007 is granted.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT ELDORET
Civil Appeal 9 of 2007
J.K.W................................... ………….APPELLANT
VERSUS
K.W.K (Suing through the mother,
A.M.M............................................RESPONDENT
R U L I N G
This is an application for stay of execution of the ruling and orders of the Hon. Beatrice Mosiria, Resident Magistrate in Eldoret Child Case No. 1/2007 made on 13th February, 2007, pending the hearing and determination of the appeal filed against the same.
The Respondent, a minor had applied for maintenance from the Appellant whom he claimed was his father pending the hearing of the case. The Honourable Magistrate after hearing the application which was an interlocutory application by way of affidavits, ordered that the Appellant pays Shs. 41,000/= per month as maintenance for the child.
From the Memorandum of Appeal and the rival affidavits in the present application it is clear that the case is still pending and one of the contested issues to be determined is that of paternity. The Appellant has denied that he is the biological father of the Respondent minor. It is common ground at this stage that the Appellant and the Respondent’s mother through whom he has come to Court are not and have never been married. The question of paternity will have to be determined by the trial Court when the suit is heard.
The question that this appeal will inter alia raise is whether a trial Court can fairly and reasonably delve into the question of parental responsibility and maintenance before the question of paternity is determined and the same is an issue for final determination. I think that this is a serious ground of appeal which cannot be said to be frivolous or vexatious as alleged.
Section 23 (1) of the Children’s Act defines parental responsibility as follows:
“In this Act, parental responsibility means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.”
This appears to mean that “parental responsibility” is imposed by law on parent/s. Can parental responsibility arise or be imposed before the question of paternity is resolved if the same is disputed? These are very crucial and serious questions being raised by this appeal. The question of the amount and maintenance and whether the Appellant can afford it or not is here nor there until the appeal is heard.
I am of the view that this application is meritorious and this Court should exercise its discretion in granting the stay of execution of the maintenance order pending appeal.
I therefore do hereby grant prayer 3 of the Notice of Motion dated 15th February, 2007. Costs shall be in the appeal.
DATED AND DELIVERED AT ELDORET THIS 8TH OCTOBER, 2007.
M. K. IBRAHIM
JUDGE