[2022] KEHC 2954 (KLR)

NMM v KMM (Civil Appeal E080 of 2021) [2022] KEHC 2954 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 2954 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal E080 of 2021

FN Muchemi, J

June 9, 2022

Between

NMM

Applicant

and

KMM

Respondent

Ruling

1. This application dated 29th December 2021 is brought under Section 1A & 1B of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rulesseeking for orders for stay of execution of the ruling delivered on 2nd December 2021 in Nyeri Children’s Case No. 11 of 2016 pending the hearing and determination of the appeal. The applicant further seeks that the court orders the respondent to continue complying with the judgment delivered on 19th August 2016 pending the hearing and determination of the appeal.

2. In opposition to the application, the respondent filed a Replying Affidavit dated 27th January 2022. The applicant thereafter filed two Supplementary Affidavits dated 29th March and 22nd April 2022 which are titled Replying Affidavit.

Applicant’s Case 3. The applicant states that judgment was delivered on 19th August 2016 granting the applicant physical and legal custody of the minors with unlimited access to the respondent during weekends, school holidays, visiting and parents days. The applicant was ordered to provide shelter and pay for all the utility bills whereas the respondent was to cater for school fees and all school related expenses. The parties were to share the clothing expenses by providing Kshs 7,500/- each after every four months or Kshs. 1,875/- each month. The parties were also to share food expenses of Kshs. 10,600/- during the months the minors are on school holidays.

4. The applicant contends that the respondent breached the terms of the judgment by failing to pay a sum of Kshs. 283,300/- towards school fees and school related expenses. Consequently, the applicant states that she took out a Notice to Show Cause. The respondent thereafter filed an application dated 15th September 2021 seeking to stay execution of the Notice to Show Cause and revise the non-existent orders of 31st August 2016.

5. The applicant further states that both the Notice to Show Cause and the application were heard simultaneously and a ruling delivered on 2nd December 2021. The applicant states that the ruling reapportioned parental responsibility to her detriment and being aggrieved with the decision she lodged an appeal. She states that as a result, she cannot cater for the extra expense the court has bestowed on her. As such, she prays that the application be allowed as prayed.

The Respondent’s Case 6. The respondent concedes that he owes the applicant a sum of Kshs. 270,000/- however he states that the court directed that the same be paid in equal instalments of Kshs. 6,000/-, which order the respondent is complying with. He further states that he has a wife and two children that he maintains and his wife is a housewife making him the sole breadwinner.

7. The respondent contends that he is obligated to pay school fees for the minors which he is doing. He avers that the applicant has not disclosed any tangible reason to warrant a revision on how the sums owed to her ought to be paid nor has she demonstrated that the same has occasioned her any loss. The respondent states that the applicant is only required to cater for academic accessories, shopping, clothes and transport, which is advantageous to her. Moreover, the respondent contends that the applicant did not consult him before taking the minors to expensive schools. He avers that this move was ill motivated to serve as a punishment to him for their failed relationship. Further, the applicant is not welcoming of the idea of transferring the minor to an affordable school as directed by the court.

8. The respondent avers that the applicant is a person of means as she is a nurse and is likely she is earning more than him. In that regard, they ought to share parental responsibility. Moreover, the respondent contends that the applicant has not enclosed herein recent payslips to demonstrate that she is not in a position to sustain the ruling on the modification of the judgment. Furthermore, the respondent contends that he filed an application to have the judgment modified and the court partially allowed the same. Moreover, one of the minors has already attained the age of majority and thus the court directed that he only cater for her academic expenses. The respondent avers that the applicant is trying to run away from her parental responsibilities without any justifiable reason. He further contends that the applicant wants to retain the position of being a person of a low income earner which is not the case.

9. The applicant filed two supplementary affidavits and states that the respondent did not provide any documentary evidence to show that he is married with other children. Moreover, the applicant states that she relies on her monthly salary as her source of income and she complied with the orders of 19th August 2016 and should not be made to pay for the mistakes of the respondent.

10. The applicant contends that in the interests of justice, the court allows the stay of execution of the ruling as the minors will be prejudiced as the respondent does not have their interests at heart.

11. The applicant further contends that her salary is paid by the County Government of Laikipia part of which is servicing a loan taken in 2016 to build her residential house instead of paying rent. The applicant further contends that she is not able to meet the financial obligations given in the ruling of 2nd December 2021 which includes shelter and utilities, food, clothing, medical care, school accessories, transport, pocket money, college accommodation of one of the minors amounting to Kshs. 46,000/- per year and provide food and maintenance for the child in college.

12. I have perused the affidavit dated 22nd April 2022 and note that it is repetitive of the earlier affidavits and contains sentiments that do not relate to the minors but the parties relationship which is not the subject at trial here.

13. Parties hereby disposed of the application by way of written submissions.

The Applicant’s Submissions 14. The applicant relies on the case of Butt vs Rent Restriction Tribunal [1982] KLR 417 and submits that the court should exercise its discretion in a way not to prevent the appeal. The applicant further makes reference to Article 53 (1) (e) of the Constitution and submits that the parental responsibility as re-apportioned has occasioned her hardship and she is not in a position to meet the children’s requirements. Further, the applicant contends that the respondent owes her a substantial amount of money resulting from the non-compliance of the judgment delivered on 19th August 2016. The applicant further contends that she has a loan she is servicing sourced for building the house she lives in.

15. The applicant submits that the orders that were reviewed are non-existent as the respondent does not have another family he is supporting.

16. The applicant submits that the application has been filed timeously as the ruling was delivered on 2nd December 2021 and she filed her application for stay on 29th December 2021. On the issue of security of costs, the applicant submits that she is ready and willing to abide by the conditions the court may impose as a condition for the grant of the orders sought.

The Respondent’s Submissions 17. The respondent relies on the case of C.M vs S.W.A(2019) eKLR and submits that one of the minors has attained the age of majority and therefore she can seek employment and cater for her own basic needs and entertainment. Furthermore, the respondent states that since the child is a government sponsored student she ought to apply for Higher Education Loans Board (HELB) to offset her academic school fees.

18. The respondent further submits that the applicant is a nurse at [Particulars Withheld] Level 5 Hospital and is therefore a person of means. Furthermore, the respondent contends that she has not enclosed her current pay slip to back up her allegations of servicing a loan to build her house. Moreover, since the applicant is a person of means, the respondent submits that the court was right to direct that the parties share parental responsibility equally. The respondent further contends that the parcel of land and the house the applicant is currently residing in is jointly owned by him and the applicant. Thus, the assertion that the applicant is paying rent is ill motivated and a recipe for misleading the court.

19. The respondent relies on the case of Joachim Ndaire Macharia vs Mary Wangare Ndaire & AnotherNyeri HCCA No. 63 of 2006 and submits that he has another family who rely solely on him to maintain them. He urges the court to take this fact into consideration. He further contends that the court allow him to continue paying Kshs. 6,000/- to offset the Notice to Show Cause as he has another family that he is maintaining. The respondent makes reference to the cases of A.A.J vs A.A. Suing through M.M [2018] eKLR and Crispus Maghanga Mzae vs Mary Mukhwana Kwansu Mombasa HCCC No. 58 of 2004 and submits that if the court directs more than the said amount of Kshs. 6,000/- together with the school fees, it will land him into financial problems and that is why he could not adhere to the orders in the judgment delivered on 19th August 2016.

20. The respondent states that the trial court was within its purview to review the judgment dated 19th August 2016 because he demonstrated that the applicant is a person of means and the judgment as is was oppressive to him. As such, the respondent relies on the case of Mbogo vs Shah[1968] E.A 93 urges the court to exercise its discretion in upholding the trial court’s ruling as the trial court exercised its discretion judicially. The respondent submits that the application is am abuse of the court process and prays that the same is dismissed.

Issue for determination 21. The main issue for determination herein is whether the applicant has met the prerequisite for grant of stay of execution pending appeal.

The Law Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 22. As a rule of thumb, an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-(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 orders 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 1st 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.

23. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1. Substantial loss may result to him/her unless the order is made;2. That the application has been made without unreasonable delay; and3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

24. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2. Secondly, 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 be rendered nugatory should the appeal court reverse the judge’s discretion.3. Thirdly, a judge should not refuse a 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.4. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.

25. Beyond the requirements of Order 42, this being a matter concerning children, this Honourable Court is enjoined by the Constitution of Kenya 2010 and the Children Act to consider the best interests of the Children. The Constitution of Kenya2010 provides at Article 53(2) that:-A child’s best interests are of paramount importance in every matter concerning the child.

26. The Children Act on the other hand provides at Section 4(3) that:In all actions concerning the children, whether undertaken by public or private or social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

27. As was observed in Bhutt vs Bhutt Mombasa HCCC No.8 of 2014 (OS), 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 Rulesmust be complemented by an overriding consideration of the best interests 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:-a)The applicant will suffer substantial loss if stay is not granted;b)The application for stay has not been brought without undue delay; andc)The applicant has provided security for the due performance of the decree.

28. Similarly in Z.M.O vs E.I.M. [2013] eKLR Musyoka J. stated:-“As a matter of principle, grant of stay of execution of maintenance orders in children’s cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind, once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable.

29. Having said that, we shall examine whether the applicant in the case herein has satisfied the above-discussed conditions.

Substantial loss 30. Under this head, an applicant must clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of Shell Ltd vs Kibiru and Another [1986] KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows:-“The appeal is to be taken against a judgment in which it was held that the present respondents were entitled to claim damages….It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the high Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts….”

31. The learned judge continued to observe that:-“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.

32. Earlier on, Hancox JA in his ruling observed that:-“It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would…render the appeal nugatory.This is shown by the following passage of Cotton LJ in Wilson vs Church (No.2) (1879) 12 ChD 454 at page 458 where he said:-“I wish to state my opinion that when a party is appealing, exercising his undoubtedly right of appeal, this court ought to see the appeal, if successful, is not rendered nugatory. “As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

33. The applicant states in her affidavit that since the ruling reapportioning parental responsibility she has suffered substantial loss because she cannot meet the children’s requirements as directed by the court. She further submits that the respondent owes her a substantial amount of money arising from the non-compliance of the judgment of 19th August 2016. She further states that the respondent does not have another family and thus he should be liable to cater for the children’s needs as directed by the court on 19th August 2016. Notably, the applicant has stated what substantial loss may occur to her if the stay orders are not granted. However as noted earlier, the best interests of the child are more paramount than that of the parties. The children’s interests supersede those of the parties as was enunciated in the case of C.K.K vs C.M.M. [2016] eKLR where the Judge stated:“In the circumstances of this case it is Baby CMM and not the two protagonists who stands to suffer loss since we are not dealing with a material claim.”

34. Likewise, in the instant case, it is the children and not the applicant who stands to suffer substantial loss if the orders sought are not granted. The rights of the children override the rights of the applicant and the applicant has not demonstrated to this court what substantial loss the children stand to suffer if the orders for stay are not granted. I have also perused the ruling dated 2nd December 2021 and noted that the respondent was ordered to pay Kshs. 286,300/- in equal instalments of Kshs. 6,000/- monthly within 4 years and should the respondent fail to comply with the order, the applicant was at liberty to move the court for attachment of the respondent’s salary. Thus the court was evidently clear that in the event the respondent does not comply with the payments, the applicant could move the court to attach his salary. I have noted that although the applicant states that the respondent is not making the payments, she has not moved the court to attach his salary. This option is still open to the applicant.

The application has been made without unreasonable delay. 35. The ruling herein was delivered on 2nd December 2021. The applicant filed her Memorandum of Appeal on 21st December 2021 and the application herein for stay on 3rd January 2022. I am of the view that the application has been filed timeously.

Security of costs. 36. The applicant ought to satisfy the condition of security. In the persuasive case of Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd [2019] eKLR the court observed:-“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”

37. Similarly in Arun C. Sharma vs Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

38. From the above decisions, it is clear that the issue of security is discretionary and it is upon the court to determine the same. Notably, the applicant has stated that she is ready and willing to abide by any conditions the court may impose as a condition for the grant of the orders sought.

39. Section 76 (2) of the Children Act sets out the general principles with regard to proceedings concerning children. It provides:-In any proceedings in which an issue on the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to be prejudicial to the welfare of the child.

40. I am also persuaded by the decision of Z.M.O. vs E.I.M [2013] eKLR where the court held:-“The solution ideally lies in expediting the disposal of the appeal and staying the matter before the children’s court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before the arguments are heard from both sides on the merits of the same.”

41. I reiterate that as well as considering the best interests of the children in this application, the applicant has failed to demonstrate substantial loss as noted earlier in this ruling.

42. In the interests of justice and in the best interests of the children herein, I am of the considered view that the appeal herein be expedited.

43. Consequently, I find no merit in this application and it is hereby dismissed.

44. There will be no order as to costs.

45. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 9TH DAY OF JUNE, 2022. F. MUCHEMIJUDGERULING DELIVERED IN OPEN COURT THIS 9TH DAY OF JUNE 2022