[2006] KEHC 310 (KLR)
The court found that the applicant failed to provide documentary evidence of his earning capacity or to demonstrate that he would suffer substantial loss if stay was not granted. However, recognizing the need for both parents to share parental responsibility and considering the respondent.s actual expenses, the...
Source-derived case information.
- Citation
- [2006] KEHC 310 (KLR)
- Parties
- Applicant: Peter Mwaro Vidzo; Respondent: Brenda Nduku Mutisya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 53 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- DK Maraga
- Legal Topics
- Stay of Execution, Child Maintenance, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwaro Vidzo
Applicant
Brenda Nduku Mutisya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for stay of execution of the Children.s Court order pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 What is the appropriate interim maintenance amount pending appeal.
Ratio Decidendi
The court found that the applicant failed to provide documentary evidence of his earning capacity or to demonstrate that he would suffer substantial loss if stay was not granted. However, recognizing the need for both parents to share parental responsibility and considering the respondent.s actual expenses, the court exercised its discretion to grant a conditional stay. The applicant was ordered to pay a reduced monthly maintenance amount of KES 4,000 pending the determination of the appeal, with each party bearing its own costs.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Pending the hearing and final determination of the appeal, the applicant shall pay the respondent KES 4,000 per month as maintenance for the child.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Appli 53 of 2006
PETER MWARO VIDZO…………………………………..APPLICANT
VERSUS
BRENDA NDUKU MUTISYA………………………….RESPONDENT
RULING
This is an application brought under Order 41 Rule 4 of the Civil Procedure Rules for Stay of execution of the order of he Children’s Court issued on 23rd December 2005 in Children’s Court Case Number 290 of 2005 pending the hearing and final determination of Civil Appeal number 8 of 2006 which the Applicant has preferred against that order. The Application is based on the ground that if stay is not granted the appeal will be rendered nugatory this causing the Applicant to suffer irreparable loss. The Order appealed against directed that in addition to school fees and medical expenses the Applicant should pay to the Respondent a sum of Sh.6000/= monthly to take care of the Child’s other expenses.
Mrs. Kipsang, Counsel for the Applicant submitted that the appeal has overwhelming chances of appeal as the Children’s Court id not take into account the Applicant’s earning capacity.
Mr. Mabeya, Counsel for the Respondent, on the other hand urged me to discuss this application as the Children’s Court Order is balanced. He said that the Respondent earns only Sh.10,000/= against monthly expenses of more than Ksh.14500/=.
Both Counsel have not addressed me on the points that should be considered in an application like this. Instead they attempted to argue the merits and demerits of the appeal itself.
Whereas the Applicant in an application like this should show that his appeal is not frivolous the cardinal point he should satisfy the court on is that if stay is not ordered he will suffer substantial loss. That he has not done. Other than his Counsel’s word of mouth from the bar that he earns Sh .40,000/= per month, he did not exhibit any document to prove that.
That notwithstanding, however, I have to consider the Respondent’s case as parental responsibility has to be shared. She said in her replying affidavit her rent and other expenses amount to Sh.6500/= and not Sh.14500/= as claimed by her lawyer.
Taking all these factors into account and considering the fact that the Applicant is paying the child’s fees and medical expenses in full I allow this application on condition that pending the hearing and final determination of the appeal the Applicant shall pay to the
Respondent Sh.4000/= per month as maintenance for the child. Each party shall bear its own costs.
DATED AND DELIVERED THIS 24TH DAY OF NOVEMBER 2006.
D.K. MARAGA
JUDGE
24. 11. 2006