[2022] KEHC 10229 (KLR)

Nyabuti v Mutindi (Civil Appeal E132 of 2021) [2022] KEHC 10229 (KLR) (Family) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10229 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E132 of 2021

MA Odero, J

June 3, 2022

Between

Aggrey Orwenyo Nyabuti

Appellant

and

Catherine Makau Mutindi

Respondent

Ruling

1. Before court is the chamber summons dated 15th November 2021 by which the Applicant Aggrey Orwenyo Nyabuti seeks the following orders.“1. Spent2. Spent3. Spent4. That pending the hearing and determination of the Appeal, this Honourable court be pleased to grant a stay of execution of the judgment delivered on 29th October 2021 by the Honourable J.P.A Aduk Resident Magistrate in Divorce Cause NO. CMDC E699/2021 Catherine Mutindi Makau vs Aggrey Orewenyo Nyabuti.5. That pending the hearing and determination of the Appeal this Honourable court be pleased to set aside the orders arising from the judgment delivered on 29th October 2021 by the Honourable J.P.A Aduke Resident Magistrate in Divorce Cause No. CMDC E699/2021 Catherine Mutindi Makau vs Aggrey Orwenyo Nyabuti directing the Appellant to only access his children in the presence and under supervision of a children’s officer, Nairobi.6. That this Honourable court be pleased to grant any such further directions and orders for the best interest of the child.7. That the costs of this Application be provided for.”

2. The summons was premised upon orders 42 Rule 6, Order 50 Rule 1, Order 22 Rule 22, Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules2011 and sections 1A and 3A of the Civil Procedure Act and all other enabling provisions of the law and was supported the Affidavit of even date sworn by the Appellant.

3. The Respondent Catherine Makau Mutindi opposed the application through the Replying Affidavit dated 14th January 2022. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 7th March 2022, whilst the Respondent relied upon her written submissions dated 28th March 2022.

Background 4. The Applicant and the Respondent solemnized their marriage on 10th March 2019 at the Marist International University, in Karen, Nairobi. The Applicant and the Respondent are the biological parents of the two (2) minors herein. The Respondent filed in the Magistrate Court Divorce Cause No. E699 of 2021 dated 18th June 2021 seeking to have their marriage dissolved.

5. The Divorce Cause was heard and vide a judgment delivered on 28th October 2021, the learned trial magistrate allowed the prayer for dissolution of the marriage. In said judgment the trial court made the following orders.“1. The marriage between the two be and is hereby dissolved.2. The Petitioner to canvass prayer (b) on the face of the Petition before the Children Court Nairobi.3. Although I have not seen any evidence of police abstracts or medical reports before me on the record, there is apparent apprehension for safety on the face of the record. On this basis, I hereby direct that the Respondent is henceforth restrained from accessing the Petitioner. With respect to the minors herein, I direct that pending the hearing and determination of the case to be filed by the Petitioner before the children court Nairobi, the Respondent shall only access the minors in the presence and supervision of the Children Officer Nairobi.4. Decree nisi do issue to be made absolute in 30 days.5. This being a family matter, each party to bear their own costs.”

6. Being aggrieved by the orders made by the trial court particularly with order No. 3 requiring that the Applicant only access the minors under the supervision of a Children Officer, the Applicant filed the Memorandum of Appeal dated 15th November 2021. Contemporaneously with said Memorandum of Appeal, the Applicant filed the present summons seeking to set aside the orders made by the trial magistrate.

7. As stated earlier the application was opposed.

Analysis and Determination 8. I have carefully considered the application before the court, the Replying Affidavit filed by the Respondent as well as the written submissions filed by both parties. Order 42 Rule 6 of the Civil Procedure Ruleswhich provides for stay of execution provides as follows:-6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 subrule (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; and(b)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.

9. The court cannot lose sight of the fact that this matter concerns the welfare of minors. It is trite law that courts are required in all matters concerning children to give priority to the best interests of the child.

10. The Constitution of Kenya 2010 provides at Article 53 (2) that:(2)A child’s best interests are of paramount importance in every matter concerning the child.”

11. Likewise Children Act at Section 4(2) provides as follows:-“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. (own emphasis)

12. In the case of Bhutt vs Bhutt– Mombasa HCCC No. 8 of 2014, the Court held as follows:-“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 overriding consideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis)

13. I do agree with the Respondent that this court cannot stay the orders for dissolution of the marriage. The Decree nisi was made absolute on 29th November 2021 as provided by the Annexture to the Respondents Replying Affidavit dated 14th January 2022. Indeed the Applicant in his submissions has conceded that some of the prayers being sought have now been over taken by events.

14. The main bone of contention are the orders made by the trial court granting the Applicant supervised access to the minors. He submits that the question of custody and access were at the time being ventilated in Childrens case No. E691 of 2021. The Applicant submits that the trial court made the above orders without knowledge of the existence of the children case.

15. I have taken the liberty of calling for and perusing Childrens Case No. 69 of 2021. I note that on 11th March 2022 a Ruling was delivered in which the following orders regarding access to the minors were made-1. The plaintiff will have actual custody, care and control of the minors.2. The defendant will access the children on alternate weekends on both Saturdays and Sundays. There access shall run from 1000 hrs to 1500 hrs.3. The access shall be at a public place friendly with children. Owing to their tender age the mother can be present or any care giver she trusts.4. Each party is at liberty to apply.5. Each party shall pay their costs for the application.6. The plaintiff to set down the matter for hearing within 6 months failure to which the interim orders herein shall lapse.

16. The above orders emanated from the Children’s Court which is the court mandated by law to deal with issues of custody, maintenance and access. The said orders were delivered after the court heard representation from both parties on the matter. Accordingly, I find that the orders made by the magistrate hearing the Divorce cause have been overtaken by events and can longer stand. I therefore set aside the orders regarding access of the minor and I grant prayer 4 and 5 of the Chamber summons dated 15th November 2021.

17. The application is partially successful.

18. This being a family matter each party shall meet its own costs.

DATED IN NAIROBI THIS 3RD DAY OF JUNE 2022. ..........................MAUREEN A. ODEROJUDGE