[2017] KEHC 8772 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the grant of a stay of execution of the committal orders, as the order in question directly affected her liberty and fundamental rights. The court recognized the seriousness of committal to civil jail and the necessity to allow the applicant...
Source-derived case information.
- Citation
- [2017] KEHC 8772 (KLR)
- Parties
- Appellant: L O; Respondent: A H
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution of committal orders allowed in part.
- Judges
- DN Musyoka, MW Muigai
- Legal Topics
- Stay of Execution, Committal Orders, Child Custody, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L O
Appellant
A H
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the committal orders pending appeal.
- 2 Whether there is justification for staying further proceedings in the lower court.
- 3 Whether the applicant's right to challenge the lower court's order has been properly exercised.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the grant of a stay of execution of the committal orders, as the order in question directly affected her liberty and fundamental rights. The court recognized the seriousness of committal to civil jail and the necessity to allow the applicant to prosecute her appeal without the threat of incarceration. However, the court held that there was no justification for staying the entire proceedings in the lower court, as the appeal only pertained to the committal order. The court therefore granted a stay of execution of the committal orders pending the hearing and determination of the appeal, while allowing the existing...
Court Disposition
Application for stay of execution of committal orders allowed in part.
Orders
- Stay of execution of the orders made in Milimani Children’s Case No. 1635 of 2014 on 16th May 2016 pending the hearing and determination of the appeal.
- Orders made on 30th March 2015 and 10th April 2015 on custody and access to the minor by the respondent shall subsist until other or further orders are made by the lower court.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL APPEAL NO. 59 OF 2016
L O………….….…………..…………..……….…….APPELLANT
VERSUS
A H…………………………………………………..RESPONDENT
RULING
1. The application dated 23rd May 2016 principally seeks stay of execution of committal orders made in Milimani Children’s Case No. 1635 of 2014 on 16th May 2016 and stay of further proceedings in the matter. She is aggrieved by the order and challenges the same on grounds of service, among other reasons.
2. I note that the applicant has already launched a memorandum of appeal, and interim orders were made herein on 2nd June 2016.
3. The applicant has a right to challenge an order of a lower court if they are aggrieved of the same. The order made is for committal to civil jail. That has something to do with limiting a person’s right to move about and it could affect his freedom to associate. It is a matter that serious.
4. I am inclined to allow the application for stay of execution of the order of 16th May 2016, to enable the applicant prosecute her appeal at the High Court. However, no justification has been given for stay of the entire proceedings.
5. The orders that I am inclined to make are:
(a) That there shall be stay of execution of the orders made in Milimani Children’s Case No. 1635 of 2014 on 16th May 2016 pending the hearing and determination of the appeal herein;
(b) That the orders made on 30th March 2015 and 10th April 2015 on custody and access to the minor by the respondent shall subsist until other or further orders are made by the lower court; and
(c) That costs of the application shall abide the outcome of the appeal.
DATED and SIGNED at NAIROBI this 3RD DAY OF MAY, 2017.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 5TH DAY OF MAY, 2017.
M. MUIGAI
JUDGE