[2023] KEHC 24837 (KLR)

MKG v SNM (Suing as Mother & Next friend of JM) (Civil Appeal E073 of 2023) [2023] KEHC 24837 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24837 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E073 of 2023

FROO Olel, J

November 2, 2023

Between

MKG

Appellant

and

SNM (Suing as Mother & Next friend of JM)

Respondent

(Appeal against the ruling/order of Hon M.A. Otindo (P.M.) dated 28th March 2023. )

Ruling

Introduction 1. The application before this court for determination is the Notice of Motion application dated 13th April 2023 brought pursuant to provisions of Order 42 Rule 6, (1) & (3) of the Civil Procedure Rules 2010 and all other enabling provision of law. The main prayers sought is for stay of execution of the ruling/order dated 28th March 2023 and also for variation and setting aside of the said order.

2. The application is supported by a supporting affidavit of MKG dated 13th April 2023. He states that the proceedings were taken ex parte without his involvement and subsequently judgement was entered as against him on 14th September 2022. Pursuant to the said judgement, he was served with the notice to show cause, which indicated that he was to pay Kshs 65,150/= and that prompted him file a replying affidavit in opposition to the same on grounds that from the time the judgment was passed, only one month had passed and thus he was required to pay Kshs 10,000/= as at 8th November 2022 and not Ksh 65,150/= as demanded.

3. The applicant further did content that parental responsibility was shared on a 50:50 ration under the Constitution and his plea for the court to review and vary its order under Section 117 of the Children’s Act was declined. The court directed that he pays the respondent a sum of Ksh 65,150/= within 14 days or in default warrants of arrest were to issue. This too was an error as the Notice to show cause had not sought for his arrest and was prematurely issued. The order issued were harsh, oppressive and was not appropriate under the circumstances.

4. This being a children’s matter, the paramount interest of the child should have been considered and arresting and jailing the child’s father would not be in the best interest of the child. The applicant thus prayed that his application be allowed.

5. This application was opposed by the respondent SNM who filed her replying affidavit dated 2nd May 2023 in opposition thereto. She explained at length how they had served the respondent, who decided not to participate in the matter and was thus insincere to allege that he was unaware of the primary suit filed. Based on the fact that the applicant had ignored his obligations under the judgment, they moved to execute and served the applicant with the notice to show cause, he filed a response and the same was heard on merits and the ruling delivered.

6. Further the amount of Ksh 65,150/= as indicated in the notice to show cause was not plucked from the air but consisted of school fee and monthly up keep from 5th October 2022 up to the date of the notice to show cause as ordered by the court. The applicant was given an opportunity and was heard on the notice to show cause and the final orders issued on merit. The applicant’s hands were soiled in equity and thus he was underserving of the orders sought. The respondent did pray that this application be dismissed with costs

Analysis & Determination 7. I have carefully considered the Application, Supporting Affidavit, the Respondent’s Replying Affidavit and the submissions filed by both parties on 13th June 2023 and 3rd July 2023 respectively. The only issue for determination is whether the Appellant has met the conditions necessary for the grant of stay pending appeal and/or if this court should vary or set aside the orders issued on 28th March 2022.

8. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt v Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & another v Agnes Nalika Chereto (2012) eKLR).

9. The case of Masis Mwita v Damris Wanjiku Njeri (2016) eKLR provided the guiding principles which the court should consider while determining an application of this nature. These were;a.The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.b.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not to be rendered nugatory should that appeal court reverse the judge’s discretion.c.A judge should not refuse stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.d.The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements.

10. The applicability of Order 42 rule 6, of the civil procedure rules in matters concerning children must also be considered in tandem with provisions of Article 53(2) of the Constitution of Kenya 2010, which provides that,“A child’s best interest are of paramount importance in every matter concerning the child”.

11. The foregoing principle underpins and reinforces the provisions of Section 4(2) of the Children’sAct which also provides that;“In all actions concerning children, whether undertaken by public or private social welfare institution’s, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration.”

12. In L.A.O v K Arap M (2018) eKLR , M. Thande J, did hold that;“A party seeking stay of execution as well as variation, review or setting aside the orders of the court affecting a child must satisfy the court that the orders sought are in the best interest of the child. The paternity of the child is not disputed. …………..”

13. The appellant has indeed filed an appeal as against the ruling/order of Hon M A Otindo (PM) dated 28th March 2023. The said appeal was filed on 13rd April 2023, which was within time as stipulated under Section 79G of the Civil Procedure Act. As to whether the applicant will suffer substantial loss if stay is not granted, it is not in dispute that the court did direct the applicant to pay Ksh 65,150/= within 14 days failure of which warrants of arrest were to issue. If effected that will indeed cause the applicant substantial loss and render the appeal to be nugatory unless the said order is stayed.

14. Be that as it may, the court has to balance the interest of the Appellant who seeks to preserve the status quo pending hearing of the appeal and to ensure the appeal is not rendered nugatory and the interest of the Respondent who seeks to enjoy the fruits of her judgment. In other words, the court should not only consider the interest of the Appellant but also consider, in all fairness, the interest of the Respondent who has been denied the fruit of her judgment. See Attorney General v Halal Meat Produces Limited Civil Application No. Nairobi 270 of 2008; Kenya Shell Ltd v Kibiru & another (Supreme); Mukuma v Abuoga (1988) KLR 645.

15. The judgment passed by court the court dated 14th September 2022 remains valid and has not been appealed against. In the said judgment the applicant was ordered to pay school fees as per the fees structure provided from time to time and provide school going needs of the child. Further, the appellant was ordered to contribute Ksh 10,000/= monthly for food and utilities and also was to take out a medical cover or NHIF for the minor. The judgment is without prejudice balanced and fair. The paramount interest of the minor would dictate that this arrangement be continued as parental responsibility is continuous and stay of its execution pending appeal would do more harm than good for the child upkeep. This ground would constitute an overwhelming hindrance to granting stay orders.

16. Exercising my unfretted discretion in this matter, and without preempting the merits of the appeal, I do note that as at the time the notice to show cause was issued on 1st November 2022, only Ksh 10,000/= would have been due from the appellant plus school fees due from date of Judgment. There was an error in demanding Ksh 45,000/= school fees yet from the fee structure of St Annes Josta Academy fee for third term was Ksh 15,050/=

Disposition 17. Taking all relevant factors into consideration and acting in the best interest of the child, while also securing the rights of all the parties hereto I do direct that;a.The decretal sum in the notice to show cause dated 1st November 2023, were wrongly calculated and I do set aside the orders issued pursuant thereto dated 28th March 2023. The respondent will be at liberty to move court again (if need be).b.The warrants of arrest issued as against the applicant based on the said notice to show cause is set aside.c.The appellant will comply with terms of the judgment dated 14th September 2022 and ensure he keeps his part of the bargain in maintaining the Minor and as per the said judgment but is at liberty to apply for its variation from time to time as circumstances may dictate.d.This Notice of motion application dated 13th April 2023 is dismissed with no orders as to costs.e.The above orders basically compromise the entire appeal, which is also marked as withdrawn with no orders as to costs.

18. It is so ordered.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 2NDDAY OF NOVEMBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 2nd day of November, 2023. In the presence of;………………………………….for Appellant………………………………….for Respondent………………………………….Court Assistant