[2023] KEHC 25471 (KLR)

NMN v ENM (Family Appeal E044 of 2023) [2023] KEHC 25471 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25471 (KLR)

Republic of Kenya

In the High Court at Nakuru

Family Appeal E044 of 2023

SM Mohochi, J

November 21, 2023

IN THE MATTER OF THE CHILDRENS ACT

Between

NMN

Applicant

and

ENM

Respondent

Ruling

Introduction 1. This is a lengthy Notice of Motion Application dated 27th July 2023, brought pursuant to Article 159 and 53 of the Constitution of Kenya, 2010, Section 5, 6 and 8 of the Children Act No. 29 of 2022, Sections 1A, 1B and 63(c) and (e). 79G and 95 of the Civil Procedure Act and Order 42 Rule 6 of theCivil Procedure Rules and all other enabling provisions of the law, the Applicant is seeking the following reliefs:i.Spentii.That This Honourable court be pleased to extend time within which the Applicant should file their intended appeal.iii.Spentiv.That this Honourable Court, be pleased to stay execution of the judgment, decree and all consequential orders of the Children's Court made in Nakuru Chief Magistrate's Court Children's Case No. E002 of 2023 on the 24th May 2023 and 26th July 2023 pending the hearing and determination of the intended appeal.v.That this Honourable court, be pleased to grant any other order that if may deem fit and just to grant.vi.That Costs pf this Application be provided for

2. The Application is supported by the sworn affidavits of Nahashon M. Njihia, the Applicant and biological father of the minors RM and SMM and is premised on a whopping twenty-one (21) grounds as follows;i.That the Respondent herein filed Nakuru Children's Case No. EO02 of 2023 seeking various reliefs against the Applicant who is the biological father of the minors herein.ii.That the matter was heard fully and judgment was delivered on 24th day of May 2023 by Hon. R. Kefa (RM).iii.That the judgment granted exclusive and physical custody of the minors herein to the Respondent to the prejudice of the Applicant.iv.That aggrieved by the said judgment the Applicant lodged an application on 26th May 2023 for revision of the said orders issued on 24th May 2023. v.That the sad application was fixed for hearing, on the date of the hearing the Applicant was served with the Respondent's application dated 12th June 2023 citing the Applicant for contempt despite the court earlier issuing stay orders.vi.That on 27th June 2023 when the Applicant's application came up for directions; both applications were placed before the magistrate where she verbally informed the Applicant to lodge an appeal against the judgment.vii.That on 26th July 2023 the trial court delivered a ruling dismissing the applicant's application for review and that the orders issued were still in force. The court directed that the OCS Njoro Police Station or any other Officer Commanding Station near where the subjects reside to accord police assistance for purposes of maintaining law and order while taking custody of the subjects.viii.That the orders issued by the said honourable court on 24th May 2023 and on 26th July 2023 are in prejudicial and in conflict with the wishes of the minors and indeed against the best interest of the minors RN and SMM as the court granted exclusive physical and legal custody to the Respondent to the detriment and prejudice of the Applicant.ix.That the Applicant has the gctual Custody of the minors herein and has been Solely taking care of their needs since 25th November 2021 when the Respondent out of her own volition left the matrimonial home.x.That One of the minors herein being RN attend school at [Particulars withheld] Academy located in Njoro and the execution of the said decree and Consequential orders will negatively impact on their school progress and further cause them emotional and psychological harm.xi.That the Appellant has fully paid the school fees in respect of one of the minors being RN.xii.That if the judgment, decree and consequential orders issued on 24th May 2023 and 26th July 2023 are not stayed the minor RN and SMM stands to suffer insurmountable loss and injury after being forcefully removed from their primary home.xiii.That the Respondent is in the process of extracting the order and execution may issue at any moment.xiv.That the Appellant's Appeal which has high chances of success, will be rendered nugatory and the minors herein and the Appellant will suffer substantial loss if execution of judgment, decree and consequential orders are not stayed immediately.xv.That the Appellant is willing to continue taking care of the maintenance of the minors herein who are still in his custody.xvi.That the application has been filed without unreasonable delay.xvii.That it is in the interest of justice and in the best interest of the minors herein that this application is heard urgently and the orders sought herein be granted.xviii.That aggrieved by the judgment and orders of the court intends to appeal to this honourable court.xix.That the statutory time within which the Applicants were to appeal against the said judgment has lapsed.xx.That the Applicant aggrieved by the said judgment intends to appeal against the whole judgment and consequential orders is therefore seeing for an extension of time within which to file their intended appeal.xxi.That the intended appeal will be rendered nugatory if the orders sought will not be granted.

3. This Court on the 31st July 2023 directed as follows;i.The Application is certified as urgent warranting being heard and disposed of ex-parte in the first instance.ii.The Application for stay of execution of Judgment/Decree in Nakuru CM's Children's Case No E002 of 2021 pending hearing of the Appeal, shall be heard and disposed of by way of written submissions (Not more than 5pages).iii.The Applicant Serves the Application together with his written submissions upon the Respondents within seven (7) days of today.iv.The Respondent files and serves Response and Written submissions within fourteen (14) days of service by the Applicant.v.Ruling on the application for stay shall be on the 17th of November 2023.

Applicant’s Case 4. The Applicant duly complied by serving the Application upon the Respondent on the 18th August 2023 and a return of service was filed in court on the 23rd August 2023.

5. The Respondent has failed and/or refused to participate in this proceeding. And the Applicant never demonstrated service in compliance of my directions.

Analysis and Determination 6. The proper place of jurisdiction and the necessity to deal with it as the first order of business before an inquiry into merits of a cause was best captured in the timeless words of Nyarangi J.A in The Owners of the Motor Vessel Lillian ‘s’ v Caltex Kenya LTD[1989] KLR 1;“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority;

7. Section 79 G of the Civil Procedure Act provides for Time for filing appeals from subordinate courts:Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

8. Section 95 of the Civil Procedure Act provides for the enlargement of time:“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

9. The phrase used is “an appeal may be admitted out of time” meaning that, an appeal may indeed can be admitted out of time. However, the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal. In Mugo & Others v Wanjiru & Anor [1970] EA 482 the Court stated as follows: -“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”

10. I have noted that the Applicant did file his Notice of Appeal together with the present Application dated 27th September, 2023. The decision whether or not to grant leave to appeal out of time? or to admit an appeal out of time? is an exercise of discretion, just like any other exercise of discretion by the Court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi v Kenya Airways LTD [2003] eKLR. They include the following:i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the if Respondent the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved.

11. The judgment was delivered on 24th May, 2023 while the present application was filed on 27th September, 2023, two (3) months after the lapse of the 30 days stay of execution granted by the trial Court. The Appellant has submitted that the delay was occasioned by his seeking review of judgment by filing an application dated 12th June 2023 that was heard and dismissed on the 26th July 2023. The Applicant has provided evidence on record to show that he was not indolent and indeed followed up on the judgment with the registry.

12. The decision to hand over full custody of the minors has far-reaching consequences upon the Applicant and as such he should be allowed to exercise his constitutional right of Appeal.

13. Nevertheless, I am inclined to allow the applicant leave to file his intended appeal noting that three (3) months is not inordinate. Section 79G permits the extension of time to file an appeal. Once the delay is convincingly explained, then time ought to be enlarged.

14. An application for stay invokes the discretionary powers of this Court under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 that empowers the Court to stay execution, either of its judgement or that of a Court whose decision is being appealed from pending appeal. The conditions to be met before stay is granted are provided for under Rule 6(2) of Order 42 and states as follows:“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.”

15. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a Court should exercise discretion and held that:-“1. The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. 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 that appeal Court reverse the judge’s discretion.3. 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. The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. 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 for costs as ordered will cause the order for stay of execution to lapse.”

16. Substantial loss is a factual issue which must be raised in the supporting affidavit and further supported by evidence. The Applicant has not demonstrated the substantial loss he will suffer should the Court disallow his prayer for stay.

17. In the case of Machira T/A Machira & Co. Advocates v East Africa Standard [2002] eKLR Kuloba J. as he then was held that:“an applicant’s ground for substantial loss must be specific and detailed as it is not enough merely stating that substantial loss will result or that if the appeal is successful it will be rendered nugatory. The applicant annexed a copy of the decree. The total sum including interest is Kes 4,787,954/35. There is a certificate of costs for Kes 265,358/-. The total amount being claimed from the applicant is quite substantial. I am satisfied that execution of the decree will cause the applicant substantial loss. Even if the respondent is capable of refunding the money, the Court has to consider whether it is fair and just to allow execution to continue which process will naturally cause the applicant some financial burden.”

18. Order 42 rule 6 requires the provision of security as a pre-condition for allowing a request to stay execution. However, this being a children matter is guided by Child's Best Interest Principle.

19. In order to merit the stay of execution being sought, the Applicant must satisfy the Court that, said stay sought is in the best interest of the minor, not of himself or the Respondent. In the case of MNN v MOK & Another (2017) eKLR the Court stated that:-“...in determining an application for stay of execution in cases involving Children, the general principles for the grant of stay of execution under order 42 Rule 6 of the Civil Procedure Rulesmust be complemented by an overriding consideration of the best interest of the child in accordance with Article 53(2) of the Constitution.”.

20. The Applicant has stated in his Affidavit that, he has had actual custody of the minors since December 2021 when the Respondent abandoned them at his place of work, having abandoned her matrimonial home on the 25th November 2021 and that he has enrolled one of the minors in school including the fact that he is willing to take cate of the minors.

21. I do find that the Applicant is entitled to pursue his appeal. I do allow the application dated 27th September, 2023 in the following terms: -i.Leave is hereby granted to the Applicant, to file appeal out of time against the judgment delivered in Nakuru Chief Magistrate's Court Children's Case No. E002 of 2023 on the 24th May 2023 and 26th July 2023. ii.The Applicant to file and serve his Memorandum of Appeal within fourteen (14) days hereof.iii.An Order of Stay against Execution of the Judgment/Decree in Nakuru Chief Magistrate's Court Children's Case No. E002 of 2023 on the 24th May 2023 and 26th July 2023 is hereby granted pending the hearing and determination of the appeal.iv.The Applicant shall set down his Appeal for hearing, within sixty (60) Days of filing the same.v.In default of complying with order number four (4), the orders staying execution shall lapse and the Respondent shall be at liberty to execute.It is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 21ST NOVEMBER 2023. ...............................Mohochi S.MJUDGE