[2022] KEHC 16567 (KLR)

MMK v JON (Family Appeal 8 of 2022) [2022] KEHC 16567 (KLR) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16567 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal 8 of 2022

JN Onyiego, J

December 6, 2022

Between

MMK

Appellant

and

JON

Respondent

(The appellant being dissatisfied and or aggrieved with the judgement and/or decision of the honourable Senior Resident Magistrate Yator in Children’s Case No.E202 of 2020 Joshua Otieno Ndere versus Millicent Muthoni Kigira delivered on 26th January, 2022 at Tononoka Children’s Court hereby appeals against part of the said judgement)

Ruling

1. By a plaint dated February 17, 2020, the respondent herein moved Tononoka children’s court vide children’s case 6 of 2020 seeking various orders inter alia; share equal legal custody of their only child the subject of these proceedings; an order restraining the mother (appellant) from removing the minor from the court’s jurisdiction without re-evaluation of the custody arrangements; an order restraining change of the minor’s name from what is currently captured in the birth certificate dated January 18, 2017;a permanent injunction to issue barring the appellant from interfering with the respondent’s right in making decisions concerning the child but not limited to education, religion, and health; mandatory order compelling the appellant to attend Kwale county children office to work out details on a viable joint custody agreement; an order to issue that both parents do provide financial support to the baby and any relief the court may deem fit.

2. The appellant filed a statement of defence and counterclaim dated August 6, 2020thus claiming actual custody of the minor and maintenance plus costs

3. During the pendency of the proceedings, the court on September 16, 2020made interim orders to the effect that; the plaintiff(respondent) to continue paying maintenance of Kshs. 7,000/= per week; the respondent to continue paying for the fees for the speech therapist; the respondent to have unlimited access to the minor but upon notifying in advance one Alice Kigira of the intention to see the minor; the pending applications to be dispensed with and any pending issues to be raised during the hearing of the main suit; leave to file further documents granted to both parties and hearing fixed forOctober 9, 2020.

4. Upon conclusion of the hearing, the trial court in its judgement delivered on January 26, 2022pronounced itself on the custody, maintenance and therapy of the child as follows;“The plaintiff will be entitled to have access to the child in Kwale either on Saturdays or Sundays depending on his availability and upon prior notification from 9am to 6pm.For the next 3 months after the initial two months of bonding, the plaintiff will have the child on alternate weekends from Saturday morning 9am to Sunday evening at 6pm.After the lapse of the 3 months thereafter, the plaintiff will start enjoying access on alternate weekends as stated above and half the period of all school holidays.During the first 5 months stated above, the defendant is tasked to update the plaintiff on what is required of him with regard to the condition of the child to ensure that by the time he gets to have the child for half of the school holiday period, he is fully conversant with the child’s program. The plaintiff is also given unlimited access to the child at school and during therapy.…Considering the huge difference in the school fees payable at the new school from the previous school, and considering the unilateral decision made by the defendant, and taking into account the submissions by the plaintiff, I order that both parties share fees and related expenses 50:50 and proper consultations be made in future before transferring the child to another school. On maintenance, the plaintiff has been voluntarily providing a sum of ksh.7000/-per week.The defendant has listed expenses in her counter-claim. Most of the expenses are personal expenses which the defendant would anyway have incurred whether she had a child or not . The child is only one and I am of the considered view that the sum of Kshs.28, 000/- per month that the plaintiff is already providing is reasonable as his contribution towards the maintenance of the child. The plaintiff is however free to increase the same subject to his financial capability.For therapy the plaintiff had voluntary agreed to shoulder the same. As per the defendant’s pleadings, the amount is indicated as Kshs 1,500/ - per session. I will order the plaintiff to continue doing the same.”

5. Dissatisfied with the judgement, the appellant filed an application seeking stay of execution more particularly variation of the maintenance orders for payment of Kshs 28000/= per month instead of Kshs 7000 per week thus reducing the number of days per year and speech therapists fees as well as access rights. The court dismissed the application on June 13, 2022.

6. Prior to the filing of the stay of execution application, the applicant had challenged the judgment delivered on January 26, 2022vide a memorandum of appeal filed on February 24, 2022. Subsequently, by a Notice of Motion application dated June 23, 2022and filed on the same day under Certificate of Urgency, the appellant sought orders as hereunder;a.Spentb.Spentc.This honourable court be pleased to order stay of execution of judgement delivered onJanuary 26, 2022in Children’s Case No.202 of 2020 Joshua Otieno Ndere vs Millicent Muthoni Kigira and revert to the status ante on interim orders issued by the plaintiff save for the orders of payment medical cover and entertainment, pending the hearing and determination of this appeal.d.The costs of this application be provided for.

7. The application is premised on the grounds set out on the face it and averments contained in the affidavit in support of the application sworn on June 23, 2022.

8. The appellant stated that she was dissatisfied with the impugned judgment reviewing orders that had been in existence since 16/9/2020 in respect to the mode of exercise of the unlimited access of the child, payment of the fees for speech therapy and maintenance from Kshs. 7,000/= per week to Kshs. 28,000/= per month.

9. She further stated that on June 13, 2022the children’s court gave an order dismissing the application dated March 18, 2022filed under certificate of urgency for stay pending appeal. That unless an order for stay of execution is issued stopping the implementation of the judgement, the child shall continue to suffer due to; reduced maintenance of Kshs. 7,000/= per week to Kshs. 28,000/= per month which only covers 28 days instead of 31 days in a month thus reducing the maintenance amount by six weeks per annum; alteration of payment of the speech therapy fees by reducing the payment to Kshs 1,500/= per session without specifying the number of sessions and ordering that the defendant to cater for the difference; the overnight weekend stay access ordered effective 25/03/2022 and school holidays without any children officer’s report or medical report being filed in court to confirm compliance of the access of initial period of two months and the progress made by the child; the alteration of the mode of access of the child by the plaintiff as now ordered in the judgement has the effect of causing constant travel of the autistic child without taking into consideration his medical and physical needs and condition thus burdening the child without considering the physical location of the defendant in Kwale who has since been transferred to Nairobi.

10. She further averred that both she and the child shall suffer loss and damage as a result of the review order by the children’s court. That she has an arguable appeal that has high chances of success and thus deserves the right to ventilate the same. That the orders sought are in the best interest of the child herein.

11. In response, the respondent filed a preliminary objection datedJuly 19, 2022seeking to have the application struck out and/or dismissed with costs on the following grounds; the application offends the child’s best interests principle as enunciated by article 53(2)of the Constitution of Kenya 2010 as read together with section 4 of the children’s Act; it seeks to destabilise an otherwise well-grounded working arrangement with respect to the child’s provision and maintenance ,an arrangement laid out by a competent court of jurisdiction in the best interests of the child; the application offends the provisions of article 47,48 and 50(1) of the Constitution of Kenya as read together with the provisions of Order 46 rule 6(1) and (2) of the Civil Procedure Rules; it seeks to overturn a valid judgement on its head absent a verdict on the appeal now before this honourable court; the filing of the present application is therefore calculated to embarrass this honourable court hence an abuse of the court process and an affront to the sanctity of precious judicial time and resources as well as a bar to access to justice.

12. The application was canvassed by way of oral submissions.

13. Ms Osino counsel for the applicant basically adopted the grounds on the face of the application and the supporting affidavit herein. That on July 21, 2022the court granted the respondent to file a replying affidavit which they failed to do within the set time. According to learned counsel, the facts in the supporting affidavit have not challenged. Counsel urged the court to look at the Record of Appeal at page 996-100 and more particularly the case of Mustano Rocco v Aniello Sterelli[2019] eKLR to express the point that the appellant had established that her appeal is arguable and that stay is meant to preserve its status.

14. Counsel further submitted that this court has jurisdiction under article 48 and 50 of the Constitution to grant the applicant an opportunity to exhaust the right to be heard.

15. On substantial loss, counsel urged the court to look at paragraph 5 of the supporting affidavit expressing the point that the child will suffer substantial loss by reduced maintenance amount and speech therapist fees. Counsel further submitted that the application had been filed within time. That judgement was delivered on January 26, 2022 while the application for stay before the lower court was filed onMarch 23, 2022the ruling delivered on June 13, 2022.

16. In respect to depositing security, Counsel submitted that the special circumstances of this case do not allow deposit of security.

17. Mr.Opalo counsel for the respondent on the other hand adopted the grounds contained in the preliminary objection. Learned counsel in his understanding quoted the case of Giella v Casman Brown thus observing that a preliminary objection must be based on material point of law which point has the ability to dispose the application completely.

18. Counsel submitted thatsection 4 now Section 8 of theChildren’s Act underscores the best interest principle in matters affecting a child. That both parties before the court are equal and therefore required to equally contribute to the welfare of the child.

19. Learned counsel asserted that the trial court in its ruling gave clear reasons why it made the said orders and a departure from the ruling will not be in the best interest of the child.

20. Mr.Opalo contended that the court was being asked to review the judgement of the court whereas this court cannot review the orders of the children’s court. That the application is seeking for maintenance of Kshs 7000 per week which cannot apply as the interim orders were overtaken by the judgement of the court.

21. In her re-joinder, Ms Osino counsel for the applicant submitted that under the current section 8(1) and schedule one of theChildren’s Act2022 that the court must consider the effect of any order issued affecting the child.

22. On the content of the ruling, counsel relied on Order 42 rule 6(1) and (2) which provides that an application for stay rejected by a lower court can be sought for before the High Court and that the doctrine of stare decisis does not apply.

Determination 23. I have considered the application herein, preliminary objection and oral submissions by both counsel. The only issue that emerges for determination is; Whether the applicant has met the threshold for grant of the orders sought.

24. The applicant herein has sought a stay of execution order against the judgement of the trial court delivered on 26th January,2022,on grounds that the trial court reduced the maintenance of Kshs 7,000/= per week to Kshs 28,000 per month which only covers 28 days; it altered the payment for the speech therapy by reducing the payment to Kshs 1,500/= per session without specifying the number of sessions and ordering her to cater for the difference; it altered the access order without a medical report and without taking into consideration the effect of constant travel to an autistic child and the medical and physical needs and condition of the child.

25. Stay of execution is provided for under order 42 rule 6 (1) and (2) which provides;1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.2. No order for stay of execution shall be made under sub rule (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; andb.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.

26. From the above provision, there are three elements for a court to consider in issuing orders for stay of execution namely; proof of likelihood to suffer substantial loss, application has been made without unreasonable delay and deposit of security. However, in children matters there is a fourth factor to consider which is the best interest of a child as stated in the case of M N N v MOK & another[2017] eKLR where the court stated;“As observed in Bhutt v. Bhutt Mombasa HCCC NO. 8 of 2014 (O.S.), in determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 rule 6 of the Civil Procedure Rules, must be complemented by a an overriding consideration of the best interest of the child in accordance with article 53 (2) of the Constitution which provides-“In exercising its jurisdiction to grant stay of execution, the High Court is required by Order 42 rule 6 (2) of the Civil Procedure Rules to be satisfied that –1. The applicant will suffer substantial loss if stay is not granted;2. The application for stay has been brought without undue delay; and3. The applicant has provided security for the due performance of the decree or

27. In the instant case the applicant has argued that the child will suffer substantial loss; that the application was brought without unreasonable delay as the judgement was delivered on January 26, 2022 after which she filed an application for stay before the trial court and a ruling dismissing the application delivered on June 13, 2022. That this application was filed on June 23, 2022 ten days after the ruling of the trial court on stay of execution application. On security, the applicant argued that this being a children’s matter it is not applicable.

28. The grounds raised to establish the possibility that the minor and the appellant are likely to suffer substantial loss are also grounds in the memorandum of appeal. Therefore, in my view this being a matter concerning a child, stay orders will not be appropriate at this stage as the said issues can be canvassed in the appeal. In any event, the difference in the maintenance amount by an average of 3 days a month is negligible such that non-payment of the same before the appeal is determined cannot occasion any serious miscarriage of justice nor substantial loss. Equally, access of the child by the father for short periods before the appeal is heard does not in any way translate to substantial loss.

29. In the case of M N N v MOK & another (supra) the court expressed itself as below on the repercussions of staying maintenance orders in respect of a child;“I have noted the opinion of Musyoka, J. in two decisions – ZMO v EIM [2013] eKLR and MN v PAS [2015] eKLR, and I, respectfully, agree with the learned judge that it is in very rare cases that courts grant stay of maintenance orders in cases involving minor children, where the duty to maintain a child is imposed on a parent by statute, as it is not in the best interests of the child to maintenance order particularly where parentage is not in dispute and that an expedited hearing of the main appeal might be a solution where there is a challenge on quantum of maintenance rather than staying the orders of the trial court pending appeal.”

30. In my view, the ground of substantial loss has not been proved sufficiently. As regards whether the appeal is arguable, the same will be subject to presentation of the case and that an arguable appeal is not necessarily that which must succeed. See Halai & another v Thornton &Thurpin(1963)Ltd (1990) KLR and David Morton Silverstein Vs Atsango Chesoni Civil application No. Nai. 189 of 2001 where it was held that an order of stay is discretionary and that an arguable appeal is one that is not frivolous and that it does not have to necessarily succeed.

31. In the instant case, the appeal sounds arguable but the cardinal consideration on proof of likelihood to suffer substantial loss has not been established. However, mere proof of an arguable appeal alone is not sufficient to grant stay. It is merely complimentary.

32. Regarding timeliness in filing the application, the same was filed within 10 days after a similar one was dismissed by the lower court. It is my finding that the application was filed within time and dismissal of a similar application before the trial court is not a bar to filing a similar one before the appellate court.

33. As regards depositing security, this is not an appropriate case to make such orders. In a nut shell, it is my holding that to make the orders sought by reverting to the interim orders in place before the impugned judgment will amount to determining the appeal prematurely. The issues raised herein are key to the main appeal and to make a determination at this stage will be tantamount to disposing the appeal before it even starts and may even pose a challenge by embarrassing the court should the appeal prove otherwise.

34. In view of the above finding, the application herein is dismissed with no order as to costs. Parties to expedite hearing of the main appeal. For avoidance of doubt, the orders of the trial court shall remain in force till the appeal is heard and determined.

Dated, signed and delivered in Mombasa this 6thday of December, 2022………………….J. N. ONYIEGOJUDGE