[2020] KEHC 10369 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL APPEAL NO. 28 OF 2020

LAW.........................APPELLANT/APPLICANT

VERSUS

TM................................................RESPONDENT

RULING

1. The applicant LAW and the respondent TM are the mother and father, respectively, of the minor MOM who was born on 19th December 2013. The applicant is a Kenyan who at the time Cause 1156 of 2015 at the Children Court at Nairobi was filed was living in Kenya but now works and lives in Australia. The respondent is an Italian national who has worked and lived in Kenya since 2014. The relationship between the parties begun in Australia where both were living.

2. The applicant sued the respondent in the stated cause for the custody, maintenance and supervised access of the child. The cause was opposed, and there was a counterclaim for equal parental maintenance and for unlimited, unsupervised and structured access to the child. The trial court heard the dispute and delivered a judgment on 8th December 2016 granting legal custody of the child to both parties, actual custody to the applicant, supervised access to the respondent, both parties to attend counselling at their cost at an institution to be agreed upon and a confidential report to be filed within 4 months, the respondent to provide Kshs.55,000/= every month towards the child’s upkeep, the respondent to provide half the school fees and related expenses, respondent to provide comprehensive medical cover, and so on. The element of supervision was to be reviewed every four months.

3. The respondent was aggrieved by the judgment. He appealed to this court in Civil Appeal No. 122 of 2016. The appeal was heard by Justice Onyiego who on 26th July 2019 found that it had no merit and dismissed it with no orders as to costs.

4. While the appeal above was pending, the applicant came before me with an application to force the respondent to sign consent forms to enable her take the child to Australia for its education. The respondent raised the issue of jurisdiction, and this court agreed with him that the court with the original jurisdiction to determine the application was the Children Court, under section 73 of the Children Act (No. 8 of 2010).

5. It is important to point out that the minor child lives with the applicant’s parents in Kenya.

6. The respondent filed before the trial court applications dated 24th October 2019, 6th November 2019 and 9th January 2020 all of which were defended by the applicant. After hearing the parties, the court delivered a ruling on 6th May 2020 in which it reviewed the earlier orders regarding access to the child. The respondent was allowed unsupervised day access to the child to enable him and the child to attend counselling sessions. The court found that the earlier order for the applicant and the respondent to attend joint counselling sessions was not feasible now that the applicant was resident in Australia. The two were asked to attend separate counselling sessions and for respective confidential report to be filed in court. Parties were allowed to attend joint counselling sessions if that was agreed to them. The court noted that the direction for the respondent and the minor to attend joint counselling sessions was intended to help in the bonding of the two, given the previous animosity between them. The order for unsupervised access was not to be permanent. It was subject to review upon application by either party after the completion of the counselling sessions. The court made other orders on that day.

7. On 15th September 2020 the trial court granted the respondent unsupervised day access to the minor from 1st October 2020 to 16th October 2020 to enable them attend joint counselling sessions.

8. The applicant filed an appeal to challenge the rulings and orders of 6th may 2020 and 15th September 2020 regarding unsupervised access to the child. With the appeal was the present motion that seeks this court to stay the orders of unsupervised access made on 6th May 2020 and 15th September 2020 until the appeal is heard and determined; that this court reviews, sets aside, varies, alters, suspends, discharges and/or quashes the orders in question; the court directs the respondent to deposit into court his travel documents and passports; that the respondent be restrained from removing the child from the jurisdiction of the court, and or relocating the child or travelling with the child from Kenya; and that the respondent be restricted by way of injunction from interfering with the applicant’s actual custody, care and control of the child pending the appeal.

9. The application was opposed by the respondent.

10. I note that the applicant was represented by M/s Nyaguthie and the respondent by Mr Swaka.

11. Before going to the merits of the application, I would like to say the following. The applicant lives in Australia. The respondent lives in Kenya. The child subject of this dispute lives with the parents of the applicant in Kenya. These parents have been in court over this child since 2015. Presently, none of the two resides with the child. The hostility between the two has certainly influenced the minor child. Both parents and the child have, as a result, been ordered to attend counselling sessions. The applicant would not like the respondent to live with the child, and the respondent would not like the child to go to Australia to lie with the mother. I find that, in terms of Article 53(2) of the Constitution and Section 4(2) of the Children Act, the applicant and the respondent cannot pretend to be interested in providing their child with what would be in its best interests.

12. Secondly, under section 73 of the Children Act, it is the Children Court that has the original jurisdiction to handle all disputes relating to the child’s custody, maintenance, its education, medical, and so on. It is the court that can deal with all questions relating to the parents’ responsibility over the child. The child has a mother in Australia. It may become necessary for the child to visit the mother. The court is the one to supervise such visit. The father may desire to take the child to Italy where his relatives are. The court will supervise the visit. This child does not belong to the parents of the applicant. It belongs to the applicant and the respondent. Now that the applicant is away, all efforts have to be made to re-unite the child with the respondent, the father. Hence the need for counselling sessions to begin and to assist their bonding. This case is not about the applicant and the respondent and their interests, whatever they may be. It is about the children court ascertaining the best interests of the child and making appropriate orders.

13. On the merits of the application, the trial court indicated that the orders of unsupervised access granted to the respondent were not permanent. They were reviewable at the instance of either party. Just like the earlier orders of supervised access were not permanent. Either party was at liberty to seek their review. There is no indication that the applicant went back to the trial court to review the orders of 6th May 2020 and 15th September 2020 and was denied a hearing, or that she was heard on review and orders were issued that aggrieved her. The respondent is being allowed to see his child during the day to be able to attend counselling sessions with the child. What substantial prejudice will the applicant or the child suffer?

14. The instant application was brought under Order 42 rule 6 of the Civil Procedure Rules which empowers this court to stay the execution, either of its judgment or order or that of the trial court, pending appeal. The conditions to be met before stay is granted are provided by rule 6(2) as follows:-

“(2) No order for stay of execution shall be made under subrule (1) unless—

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

15. Substantial loss is the cornerstone of the discretion of this court in the application for stay (Kenya Commercial Bank Ltd –v- Sun City Properties Ltd & 5 Others [2012]eKLR) Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. It is therefore upon the applicant to demonstrate clearly what substantial loss she will suffer if stay pending appeal is not granted. I find that, in both the affidavits, and the written submissions, there was no such demonstration.

16. The issue of the respondent wanting to take the child out of jurisdiction was not the subject of the orders subject of the appeal, and therefore the court would not have jurisdiction to deal with prayers 8 and 9 of the notice of motion. In prayer 10, there was no evidence tendered before the trial court that the applicant’s actual custody of the child has been threatened. I have said in the foregoing that the orders of 6th May 2020 and 15th September 2020 embedded in them the right of either party to seek the review of the orders. The applicant did not avail herself of that right.

17. It was contended that the trial court had gone against the orders of the High Court and those of the previous trial court regarding supervised access to the child. I suppose this will be the subject of the appeal. The lesser said about it the better.

18. In conclusion, I do not find merit in the notice of motion dated 22nd September 2020 and dismiss it with costs.

DATED and DELIVERED at NAIROBI this 3RD DECEMBER 2020.

A.O. MUCHELULE

JUDGE