[2017] KEHC 9249 (KLR)
The court found that the applicant failed to provide sufficient evidence or justification for not complying with the custody orders issued on 23rd May 2017 and repeated on 19th July 2017. The court emphasized that obedience to court orders is mandatory and that the applicant's reasons, including the alleged illness...
Source-derived case information.
- Citation
- [2017] KEHC 9249 (KLR)
- Parties
- Applicant: MMM; Respondent: SKN
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 110 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Lifting of Warrant Pending Appeal
- Outcome
- application dismissed
- Judges
- AO Muchelule
- Legal Topics
- Child Custody, Interim Orders, Warrants of Arrest, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MMM
Applicant
SKN
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Lifting of Warrant Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay or suspension of the custody orders issued on 23rd May 2017 pending appeal.
- 2 Whether the warrant of arrest issued against the applicant for non-compliance with the custody order should be lifted.
- 3 Whether the applicant has provided sufficient justification for non-compliance with the court's custody orders.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence or justification for not complying with the custody orders issued on 23rd May 2017 and repeated on 19th July 2017. The court emphasized that obedience to court orders is mandatory and that the applicant's reasons, including the alleged illness of the minor, were unsupported by evidence. The application for stay and lifting of the warrant was not intended to last until the appeal was determined but only to allow time for handover, which the court found unjustified given the circumstances. Consequently, the application was dismissed as unmerited.
Court Disposition
application dismissed
Orders
- The application dated 24th July 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. APPLICATION NO. 110 OF 2017
MMM……….... APPLICANT
VERSUS
SKN………...RESPONDENT
RULING
1. The applicant is the mother of the minor I K K. whose father is the respondent. On 23rd May 2017 the Children Court at Milimani in Cause No. 1290 of 2016 granted to the respondent interim custody, care and control of the minor. The applicant was granted unlimited day access. The minor was by then in the custody of the applicant. She did not hand over the minor to the respondent. On 19th July 2017 the court issued a warrant of arrest against her for the refusal to obey the order. On 24th July 2017 she applied to stay the orders issued on 23rd May 2017. She wanted the warrant lifted. The application was scheduled for hearing on 4th August 2017. On 25th July 2017 there was a temporary order of stay to allow her time to hand over the child. She was given up to 4th August 2017 to comply.
2. While that was going on, on 24th July 2017 the applicant filed an appeal before this court to challenge the order of custody, care and control issued on 23rd May 2017. The grounds in the appeal were that the lower court had erred in law and fact in granting the custody of a three year old minor to the respondent as opposed to her; the court had failed to consider that she had had custody of the child for two years without any complaint; the court had relied on a social report that had not been shared with the parties; the court had failed to allow the DNA to confirm the paternity before granting the custody to the respondent; the best interests of the child had not been considered; and that, the minor’s existing status on custody had been disturbed in the process.
3. Along with the appeal was the present application under section 4of theChildren Act (No. 8 of 2001), section 3Aof theCivil Procedure ActandOrder 51of theCivil Procedure Rules which sought the stay and/or suspension of the orders issued on 23rd May 2017, and the lifting of the warrants of arrest issued on 19th July 2017. These orders were to allow for adequate time for the applicant to prepare the minor mentally for the hand over to the respondent.
4. It is clear that the applicant was not seeking the stay of the orders until the appeal is heard and determined. She wanted the orders to be in place as she prepared to hand over the custody of the minor to the respondent. From the record, the paternity of the child was not in dispute.
5. This is not the forum to deal with the merits of the appeal. In the affidavit sworn to support the application it was deponed that the child had not been handed over because it was not well and on medication.
6. The applicant has the unqualified obligation to respect the orders that were issued on 23rd May 2017, and repeated on 19th July 2017 (Mutitika –v- Baharini Farm Ltd [1985]KLR 227). Four months have passed since the orders of 23rd May 2017 were issued. There is no evidence to show that the minor is unwell, or that there is any other issue standing in the way of handing over the child to the respondent as was directed.
7. In short, I find the application dated 24th July 2017 not merited and dismiss it. I make no order as to costs.
DATED and DELIVERED at NAIROBI this 21ST day of SEPTEMBER 2017
A.O. MUCHELULE
JUDGE