[2022] KEHC 1020 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY MISCELLANEOUS NO E017 OF 2021

NICKSON JUMA NYONGESA................................................................RESPONDENT

VERSUS

MARY NAMALWA WANJALLA ..............................................................DEFENDANT

RULING

1. Vide Tononoka children’s case No 145 of 2016, Mary Namalwa Nyongesa (hereinafter the respondent) filed a suit against Nickson Juma Nyongesa (hereinafter the applicant) on 25th April, 2016 seeking actual custody of their children; declaration that the respondent has a parental responsibility over their children; periodic financial support as maintenance for the children; payment of school fees; medical expenses and, the applicant be restrained from removing the children subject of this case from her custody.

2. In response, the respondent filed defence and subsequently had the matter heard through viva voce evidence. After hearing evidence from both parties, the court delivered its judgment on 19th October, 2016 thus ordering the applicant /defendant to;

a. Pay school fees directly to the school which shall be mutually agreed by parties.

b. Defendant /applicant to cater for school fees related expenses for term one of 2017 and thereafter , the plaintiff to cater for the same.

c. The defendant shall cater for medical expenses as when need may arise.

d. The defendant to contribute ksh 4,500 payable to the plaintiff on or before the 5th day of every month

e. The plaintiff (respondent) to cater for the needs that the children may require from time to time.

3. Thereafter, various exparte applications among them a notice to show cause and attachment of the applicant’s salary were made on grounds that the applicant had defaulted in meeting his financial obligations. Subsequently, an order for attachment of the appellant’s salary at kshs18, 479 every month was made on 29th April 2021.

4. Aggrieved by the said order, the applicant filed a notice of motion before the trial court on 11th May, 2021 seeking stay of execution but failed to secure the orders as the court certified it urgent and gave a hearing date.

5. Consequently, the applicant moved to this court vide a Chamber Summons dated 24th May, 2021 seeking stay of execution of the order of attachment of his salary pending hearing and determination of the application interpartes; leave to appeal against the salary attachment order made on 28th April, 2021 and that leave to operate as stay.

6. The application is anchored on the grounds outlined on the face of it and averments contained in the affidavit in support sworn on 24th May, 2021 stating that the respondent has persistently neglected the children by abandoning them under the care of her sister and also by refusing to stay in their village matrimonial house.

7. That the respondent has unilaterally obtained court orders thus varying the judgment against him. He lamented that at the instigation of the respondent, the trial court issued orders of arrest against him despite deduction of his salary from the source.

8. He further stated that the attachment order for a sum of 18,421 against a sum of kshs7, 800 agreed upon by consent was contrary to the judgment. That if the adjusted amount is not stayed, the other six children and their mother will suffer.

9. In response, the respondent filed a replying affidavit stating that the application culminating to the impugned order was duly served upon the applicant who chose to ignore the same hence the exparte orders. That the application amounts to an abuse of the court process as a similar application filed before the lower court is still pending.

10. She deponed that the orders for attachment of the appellant’s salary were made after he paid the amount directed for three months and then defaulted in paying school fees.

11. When the matter came up for hearing, parties agreed to file submissions in canvassing the same.

Applicant’s submissions

12. Through the firm of Mwawasi and company advocates, the applicant filed his submissions on 12th July, 2012, reiterating the content contained in the affidavit in support of the application. It was submitted that the appellant was condemned unheard as the application giving rise to the impugned orders was not served upon him nor was any evidence tabled to prove service.

13. He averred that the orders made sometime in March, 2019, 13th July 2020 and 19th August 2020, were all addressed to the principal secretary DOD directing attachment of his salary were made exparte. That there was no justification made to warrant the upward adjustment of the already attached salary.

14. Counsel submitted that failure by the respondent to serve the applicant with the application leading to the attachment of his salary at kshs18, 611 was against the principles of natural justice. In support of this proposition, counsel made reference to the holding in the case of Joseph Lekamano &248 others vs African Welfare Foundation & 4 others (2017) e KLR

Respondent’s submissions.

15. Mr Obonyo advocate appearing for the respondent filed his submissions on 3rd November, 2021 also adopting the averments contained in the affidavit in reply. Learned counsel dismissed claims of non-service of the applications leading to the salary attachment orders. Mr Obonyo contended that the respondent is a victim of his failures by refusing to honour court orders and also running into arrears of maintenance expenses.

16. It was counsel’s submission that the application herein amounts to an abuse of the court process as a similar application was filed before the lower court and the same is pending to date. In his view, the applicant is forum shopping courts in search of a favourable order. In that regard, counsel referred to the holding in the case of JGK V FWK(2009) e KLR in which the court castigated parties who engage in forum shopping.

17. Regarding service of the application, counsel referred to order 5 rule 19 which empowers service upon a serving soldier to be made through his employer or commanding officer. That in any event, during the occurrence of these events, the respondent was acting in person and therefore a lay person who cannot be blamed for not acting to the required standard. To support this position, reliance was placed in the case of Anthony Mlolo Mutio vs Blue Marlin Beach Resort Ltd ( 2014) e KLR where the court held that a lay person cannot be held to the same standard as high as an advocate.

18. Further, Mr Obonyo contended that the respondent having tried to serve the applicant in vain, she had no choice but to serve him through the employer. That by10th March, 2019 the arrears accruing since 2016 were over kshs55, 000 hence the recovery proceedings by way of attaching the appellant’s salary.

Determination.

19. The application before me is seeking stay of execution orders against the orders made on 29th April, 2021. It is also seeking leave to appeal out of time.

20. I have considered the application herein together with the affidavit in support. I have also considered the responses thereto plus oral submissions by both parties. Issues that emerge for determination are;

a. Whether the applicant has met the threshold for grant of stay orders.

b. Whether the application was filed without inordinate delay.

21. The law governing stay of execution orders is anchored under order 42 rule 6 (2) of the Civil Procedure Rules. Before stay orders can issue, it is incumbent upon the applicant to prove that; he is likely to suffer substantial loss in the event that orders sought do not issue; the application has been filed without inordinate delay and that security for the due performance of the decree has been deposited.; See Carter and Sons Ltd vs Deposit Protection Fund Board and 2 others C A No. 291 of 1997

22. It is trite law that issuance of stay of execution orders is at the discretion of the presiding judge or magistrate depending on the merits of the individual case without losing sight of the fact that a stay order is intended to preserve the purpose of an appeal. This position was succinctly held in the case of Butt vs Rent Restriction Tribunal Nairobi Civil Appeal No 6/1979andShell Ltd vs Kibiru and another (1986) e KLR

23. In the instant case, the applicant is claiming that the impugned orders have substantially altered the substratum of the appeal thereby unilaterally raising the amount payable as financial support for the children from Kshs 7,800 per month to kshs18, 511. On the other hand, the respondent stated that the extra amount of Kshs 10, 000 above the kshs7, 800 is also as a result of accrued arrears amounting to Kshs 55,000 which money the applicant has been reluctant to pay.

24. According to the applicant, the exparte orders were made without him being served hence a violation of constitutional rights of being condemned unheard. However, to counter that assertion, the respondent contended that the appellant was elusive whenever he was being sought to effect service hence service had to be effected through his employer (commanding officer) in accordance with the law.

25. The dispute over service notwithstanding, the respondent did not tell the court what substantial loss he will suffer that cannot be compensated monetarily. If the amount complained of is paid and the appeal succeeds, it shall be recoverable by paying less the amount he could have lost by virtue of that order. Proof of likelihood to suffer substantial loss is the corner stone for grant of stay orders. See James Wangalwa and another vs Agnes Naliaka Chesato ( 2012) e KLR.

26. Assuming for a moment that the court was to grant the order of stay, what will happen to the children’s needs which cannot wait? Obviously, the children must eat, go to school and enjoy other basic requirements that the financial support was intended to achieve. All those needs cannot be suspended unless under exceptional circumstances.

27. In the case of KKPM Vs SWW ( 2019 ) e KLR the court had this caution to make when dealing with an application for stay of execution touching on the welfare of children;

“I agree that where the duty to maintain a child is imposed on a parent by statute, it is not in the best interest of the child to suspend a maintenance order particularly where parentage is not in dispute and that an expedited hearing of the appeal might be a solution where there is a challenge on quantum of maintenance rather than staying the orders of the trial court’’

28. I am in agreement with the above holding that except in exceptional circumstances, orders for child support should not as a matter of course be suspended from implementation. The best interests of the child being vulnerable persons must always reign and triumph over and above those of their parents. In the circumstances, and, in view of the above holding, I don’t find it prudent to issue stay orders.

29. Regarding the question whether the application was filed within reasonable time, one would have to look at the time the impugned ruling was made which is 29th April, 2021 and the instant application filed in 25th May, 2021. Accordingly, the application was filed within reasonable time.

30. As regards filing similar application before the lower court, it amounts to an abuse of the court process although nothing would have stopped him from filing another application after losing a similar one before the lower court.

31. I do not wish to delve into the merits of the appeal which is anchored on failure to effect service of the application giving rise to the impugned orders. These issues will be dealt with during the hearing of the appeal. Accordingly, I do not find any merit in the application for stay hence the same is dismissed with no order as to costs.

DATED SINGED AND DELIVERED VIRTUALLY AT MOMBAS THIS 18TH DAY OF MARCH, 2022.

J. N. ONYIEGO

JUDGE