[2022] KEHC 16234 (KLR)

PKK v GNK (Minors suing through their next friend) (Children's Appeal Case 16 of 2022) [2022] KEHC 16234 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16234 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Children's Appeal Case 16 of 2022

CM Kariuki, J

December 14, 2022

Between

PKK

Appellant

and

In the Matter of GNK (Minors suing through their next friend)

Respondent

(Being an appeal against the Ruling of Honourable C M Muhoro Senior Resident Magistrate delivered on 8th July 2022 in the Chief Magistrate Court at Nyahururu Children Case No. 9 of 2020)

Ruling

1. By Application dated July 28, 2022, the applicant seeks the following prayers:a.That pending the hearing and determination of this Appeal, there be a stay of execution of the judgment delivered on May 12, 2021 in Nyahururu CMC. Children Case No. 9 of 2020 and all the consequential orders issued thereto.b.That the costs of this Application be provided for:

2. Same is supported by the grounds on the face of the application.i.That the herein parties are blessed with one issue, namely C.K., aged ten years, as a result of a relationship which began in the year 2009 between the two, while the respondent also has another issue born before the parties meeting who is now aged 17 years.ii.That before their separation, the parties resided at Kimuri housing plot No. 146 Joska. When the relationship fell apart, the appellant was forced re- locate to Rongai, where he now lives in a rental house. At the same time, the respondent continues to occupy the house built at muri Housing Plot No. 146 Joska, which house was built by and belongs to the Appellant.iii.That the appellant had never neglected his responsibilities as a parent; however, in a bid to frustrate the appellant, the respondent, after their separation, filed a suit before Nyahururu Law Court where she was able to get an ex-parte judgment despite both parties residing within Nairobi County and proceeded to execute the same by causing the appellant to be committed to civil jail.iv.That the appellant was condemned to cater for school fees and medical care and, in addition, pay an extra Kshs. 10,000/= monthly as maintenance for the minors despite the fact that they continue to reside in his house; thus, in essence, he is still providing for their shelter.v.That as a result of the pandemic and the respondent causing his arrest to vide an NTSC dated 4/6/2021 and withholding a bus owned by the applicant, the appellant, who had obtained a job as a taxi driver, lost his employment and only source of income, he has now been left destitute having to struggle to make ends meet.vi.That the appellant is not a person of means and thus not able to pay Kshs. 10,000/=per month for maintenance and, in addition, cater for school fees and medical while he also fends for himself.vii.That the respondent is in the process of executing the decree, and the Appellant stands to be recommitted to civil jail as the respondent now demands a total of Kshs. 242,164/= from theappellant who cannot raise that money in addition to the Kshs. 10,000/= per month being maintenance.

3. It is also supported by the affidavit of the supplementary affidavit of the applicant

4. The respondent filed a replying affidavit to oppose the application

5. The court directed the parties to canvass applications via written submissions.

Application case and submissions. 6. The applicant and the respondent met sometime in 2009 and began a relationship where they were blessed with one issue. They lived together in their home established at Kimuri Plot No 146 Joska within Machakos County. The house was single-handily built and developed by the applicant while the respondent moved in.

7. The respondent was, before meeting the applicant, blessed with another minor, namely C.S., aged 17 years and almost turning 18 years. The parties began having problems forcing the applicant to vacate his house, leaving behind the respondent and the minors residing thereon, and he now rents a house in Rongai.

8. The respondent filed a Suit vide Nyahururu C.M.CChildren Case No 9 of 2020 seeking upkeep and maintenance of the minors. When the parties appeared in court the first time, they were directed to attempt an out-of-court settlement. The respondent became uncooperative and opted to have the matter proceed in court without alerting or informing the applicant as much.

9. On the hearing date, the applicant was not served with a hearing notice, a judgment notice, or a notice of entry of judgment. At the time, the applicant was not represented by counsel. Thus, he was not aware of the procedure and proceedings of the court.

10. Judgment was delivered on 12/5/2021 in the absence of the applicant, where it was held that the respondent continues to reside in the applicant's house, the applicant to cater for school fees and, in addition, pay Kshs. 10,000 monthly as maintenance. The respondent was to only cater for food and clothing when the need arise as the applicant already caters to medical through his NHIF cover.

11. The applicant only became aware of the existence of the judgment when he was arrested and committed to civil jail, prompting him to file an application dated 6/6/2022 seeking to stay the execution and set aside the ex parte judgment and the instant appeal and application was heard and dismissed on 8/7/2022 necessitating filing of instant appeal and application before the court now.

12. It is submitted that Powers to grant a stay pending appeal is discretionary, but such discretion is to be exercised judicially, considering each case's special circumstances.

13. The applicant herein is not in a position to pay the Kshs 260,000 being the decretal sum and, in addition, pay Kshs 10,000 per month as upkeep for the minor, taking into consideration that he is unemployed, having lost his source of livelihood through the respondent as the motor vehicle used for a taxi were disposed of off when the parties were still living together. He moved out of his house and is now renting a house as the respondent continues to reside thereon rent-free. Not to mention the current economic status.

14. The applicant continues to pay school fees and cater for medical expenses. It would be detrimental to the minors if he cannot sustain their needs based on the demand he cannot currently afford.

15. His committal civil jail for seven days led to his termination of employment as a taxi driver. Unless a stay is granted, in order to offset the decretal sum, the applicant would, in this case, be forced to maybe dispose of the property he owns, which would be the home where the respondent resides, which would render the respondent and the minors homeless and again have the applicant cater for such shelter thus loss that cannot be recovered. We submit, therefore, that the applicant has demonstrated that he will suffer a substantial loss that, in this case, also directly affect the minor whose interest ought to be put first.

16. Furthermore, unless a stay is granted, the appeal will be rendered nugatory as the genesis of the same emanates from the ex parte orders granted by the trial court challenged in the instant appeal. This would occasion an abuse of the court process in the event the appeal is rendered nugatory. This being a children matter, the children’s rights supersede those of the parents. Reliance is made on the case of James Wangala &anothervAgnes Naliaka Cheseto (2012) eKLR.

17. It is submitted that the applicant and the respondent both reside within Nairobi and Machakos County. The instant suit was for some malicious filed in reason Nyahururu. The 20 days were attributed to counsel for the applicant getting the applicant to sign documents and return them to his offices for filing. The ruling was supplied to her a little over 14 days from the delivery date.

18. It submitted that the application was filed expeditiously before the usual lapse of a 30-day stay of execution granted by courts. Further, the ruling delivered on 8/7/2022 was in the presence of the parties in person as the counsel was indisposed, but upon getting instructions to appeal, the same was filed expeditiously

19. To secure his release from the civil seal, the applicant was compelled to pay Ksh.50, 000 and a receipt was annexed as "PKK 3". The amounts were contributed by his counsel record, as evidenced by "PKK 4," to secure his release. The same is yet to be refunded to him to date. Secondly, the respondent continues to reside in the applicant’s house while the applicant continues to cater for the fees of the 2nd minor and his medical expenses through his NHIF cover.

20. It would be in the best interest that the status as obtaining now be maintained as security with the Kshs 50,000/- applying as security in the instant appeal.

21. The acts of the applicant as discussed herein above amount and suffices as security. Reliance made on In the case Absalom DoravsTarbo Transporters [2013] eKLR, Foan Motorcycle Co. LimitedvAnn Wambui Wangui &another(2018) eKLR, RWW v CW (supra)

Respondent submissions. 22. The respondent submits that although the applicant is not the biological father of CN, he took up parental responsibilities over the minor when the applicant and the respondent got married; at the time, the minor was in Class One and around six years of age.

23. The respondent further submits that it was with the applicant's express authority that a birth certificate be issued indicating him as the child's father. Ever since all the school certificates reflect him as such, hence the applicant acquired the obligation and parental responsibilities over both the subject herein notwithstanding; by virtue ofsection 94 of the Children Act, his having accepted the minor as a member of his family and his denial of her right now is just an afterthought.

24. The respondent submits that the applicant had assumed parental responsibility over the respondent's children during the subsistence of their marriage; hence he should continue providing for them as before.

25. Further to the foregoing, the respondent submits that this Honourable Court lacks jurisdiction to set aside a final judgment such as that delivered in her favour because it was heard and determined by a competent court. If he challenges the outcome of the said judgment, he should seek other avenues; thus, his application should be dismissed with costs. Jurisdiction is not a procedural or legal technicality; it is a substantial issue that goes to the very heart of a matter before a court. Without jurisdiction, a court acts in vain. Respondent cites the cases of The Owners of Motor Vessel "Lillian S" v Caltex Oil Ken a Limited1989] KLR 1, and Samuel Kamau Macharia v Kenya Commercial Bank & 2others. Civil Application No. 2 of 2011,

Issues Analysis and determination 26. After going through the application, affidavits, and submissions, I find the issues are whether the instant application has merit and order as to costs. The applicant’s focal point of his case is that he was not served with a notice for the hearing of the trial court suit. Thus, the trial court erred in not setting aside the exparte judgment and all consequential orders.

27. In a ruling dated June 8, 2020, the trial court observed that the applicant was in court on- March 13, 2022when the parties were directed to attempt an out-of-court settlement, and also matter came again in court on January 22, 2021when both parties attended, and as there was no settlement, the applicant was given seven days to file a defense. A mention date was issued in the presence of both parties to confirm compliance; however, the applicant still did not comply or attend court by the mention date on February 5, 2021.

28. The court fixed a hearing date on 26. 2.21, and the applicant was served via WhatsApp mode but opted not to attend court nor file a defense. Thus, the matter proceeded exparte. The applicant has skirted the above finding and holding of the trial court in his supporting affidavit. He only insists that he was not served with a hearing notice and was condemned unheard.

29. The court is alive to the fact that the instant appeal hinges on whether the appellant was served for the hearing of the suit. Of course, his conduct in refusal to file a defence will also be of vital importance.

30. The application will thus be determined based on that background, as mentioned earlier.Order 42 rule 6 (2) of the Civil Procedure Rules provides as follows;1)…2)No order for a 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 applicant has been made without unreasonable delayb)The applicant has given such securing as the court order for the due performance of such decree or order as may ultimately be binding on him.

31. In the case of James Wangala &another vAgnes Naliaka Cheseto (2012) eKLR, as cited in the case of HE v SM(2020) eKLR., it was observed as:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say; the attached properties have been sold, ………, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR; this is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the essential core of the applicant as the successful party in the appeal… the issue of substantial loss is the cornerstone of both jurisdictions. The substantial loss must be prevented by preserving the status quo because such a loss would render the appeal nugatory."

32. The trial court judgment verdict was that; the respondent was awarded minors custody, the applicant was to be paying school fees and other education-related expenses, food and items of personal use to the tune of Ksh 10,000, and clothing expenses were to be shared equally, among other things. Plus, the costs of the suit.

33. Article 53(1) (e) of the Constitution of Kenya provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

34. Section 91 of the Act of Children’s Actprovides that a parent, guardian, or custodian of a child may apply to the court to determine any matter relating to the child’s maintenance. The court may then make a maintenance order that a specified person (father/mother/guardian) make such periodical or lump sum payments for the child’s maintenance.

35. While women commonly make maintenance applications, nothing precludes men from seeking child maintenance from their wives or former wives /partners. In MEK v GLM[2018] eKLR, which involved a husband seeking care from his wife, the court stated that “the traditional gender role [of the man having to provide for his wife] has been superseded by the provisions of the Constitution and Marriage Act, 2014 and is therefore not a relevant factor in determining whether or not an order for maintenance should be made in favour of a husband”.

36. In deciding child maintenance matters, courts make orders guided by the following general principles:(a)Where the parents of the child are both living, the duty to maintain the child is the parents’ joint responsibility, even if only one parent has custody of the child;(b)Where there are two or more guardians, the duty to maintain the child is the joint responsibility of all guardians;(c)Where two or more custodians are appointed over a child, all custodians are jointly responsible for the maintenance of the child; and(d)Where a ‘residence order’ (a court order establishing where a child will live) is made in favour of more than one person, those persons must jointly maintain the child.

37. The trial court though the applicant absented himself, considered the applicant substantially liable to maintain the children without alluding to the Above legal guideline; thus, the appeal may have to interrogate that element while deciding whether to reopen the case for rehearing.

38. Meanwhile, the court notes that the application turns on whether the applicant will suffer substantial loss if the stay is not granted. The applicant is much more concerned about monetary orders, not the custody relief awarded to the respondent. He has yet to attempt to comply with the court orders nor demonstrate what he can pay to convince the court that he is not defying the court orders.

39. Thus, in all circumstances of this case, I find no demonstration of substantial loss if the stay is not granted. However, the court will exercise discretion and make conditional stay only on monetary orders as follow;i.The temporary stay of execution is granted- on the condition that;a.The applicant deposit of Kshs 50,000 in court shall be released to the respondent immediately to take care of the minor children.b.The applicant shall continue payments of the Ksh10,000 for food and personal use for minors with effect from January 2023, payable by mid-January and subsequent months until the appeal is determined or until further court orders.c.The applicant is to continue taking care of school fees and related expenses.ii.There be liberty to apply.iii.Appeal to be heard on a priority basis

Dated, Signed, andDelivered atNYAHURURU this14thday of December 2022. ………………………………..CHARLES KARIUKIJUDGE