[2014] KEHC 1414 (KLR)
The court declined to grant the orders sought in the interlocutory application because the reliefs requested were identical to those sought in the substantive appeal. Granting such orders at this stage would amount to determining the appeal prematurely, without the benefit of a full hearing and directions. The...
Source-derived case information.
- Citation
- [2014] KEHC 1414 (KLR)
- Parties
- Appellant: P L S; Respondent: H A O
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 68 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Motion for Stay and Variation of Maintenance Orders
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Child Custody, Child Maintenance, Parental Responsibility, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P L S
Appellant
H A O
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Motion for Stay and Variation of Maintenance Orders
Legal Issues
- 1 Whether the court should grant a stay of the maintenance orders pending appeal.
- 2 Whether the monthly maintenance amount should be reduced from Kshs. 40,000 to Kshs. 10,000 pending appeal.
- 3 Whether joint custody and access arrangements should be altered before the appeal is heard.
Ratio Decidendi
The court declined to grant the orders sought in the interlocutory application because the reliefs requested were identical to those sought in the substantive appeal. Granting such orders at this stage would amount to determining the appeal prematurely, without the benefit of a full hearing and directions. The applicant failed to demonstrate any exceptional circumstances justifying the court's intervention at the interlocutory stage. Accordingly, the application was dismissed, and the parties were directed to proceed to argue the appeal in the ordinary course.
Court Disposition
application dismissed
Orders
- The Motion dated 18th August 2014 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 68 OF 2014
P L S……………………..……..APPELLANT
-VERSUS-
H A O……………………..RESPONDENT
RULING
1. The Motion I am tasked to determine is dated 18th August 2014. It seeks stay of maintenance orders made on 7th August 2014 in Nairobi Children’s Case No. 1264 of 2013, reduction of the monthly maintenance amount for Kshs.40,000. 00 to Kshs. 10,000. 00, joint custody of the children to both parties with unlimited access, half access to the minors during school holidays, to be allowed to pick the children from school on Fridays from 5. 00 p.m. and to return them on Sunday at 4. 00 p.m., to be allowed to decide the school to be attended by the children and for parental responsibility to be ordered on equal basis.
2. The said application is filed within the appeal filed herein on 20th August 2014. The appeal arises from the decision of the Children’s Court of 7th August 2014. The grounds detailed in the Memorandum of Appeal dated 18th August 2014 focus on the custody, access, monthly maintenance, transfer of schools, among others.
3. The application was served on the respondent. I do not have a reply on record to the application.
4. The application was argued on 28th August 2014. The counsel for the applicant urged the application in the absence of the representative for the respondent.
5. I have carefully gone through the application and the papers filed with it. I have looked at the application alongside the memorandum of appeal. It appears to me that the orders being sought in the application are the same as those set out in the appeal. The applicant appears to be asking me to address the issues raised in his appeal at this stage. If I deal with the issues raised in the application I will have effectively dealt with the appeal, before directions are taken on it and before it is heard.
6. The applicant has not justified why I should deal with the matter in this manner instead of going through the usual motions.
7. I find no basis for proceedings in that manner. Let the applicant argue his appeal for the orders sought in the Motion can only be dealt with at the hearing of the appeal.
8. The Motion dated 18th August 2014 is hereby dismissed. As the respondent has not replied to it, there shall be no orders as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 28th DAY OF November 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Odhiambo Ochieng for Mrs. Morara advocate for the applicant.