[2023] KEHC 23901 (KLR)

ROM v SMO (As mother and next friend of LKO and EKM) (Civil Appeal E319 of 2022) [2023] KEHC 23901 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23901 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E319 of 2022

PM Mulwa, J

October 19, 2023

Between

ROM

Appellant

and

SMO (As mother and next friend of LKO and EKM)

Respondent

Ruling

1. The applicant has brought this application dated 16th December 2022, under Order 42 Rule 6 as read with Order 51 Rule 1 of the Civil Procedure Rules, seeking for orders for stay of execution of the judgment and decree in Ruiru PMCC No. E016 of 2021 pending the hearing and determination of the application herein and the appeal.

2. The Application is premised on the grounds that substantial loss would result; that sufficient cause exists to warrant the grant of stay; and that the application has been made without undue delay. It is supported by the applicant’s affidavit, sworn on the even date.

3. The appellant averred that he stands to suffer irreparable harm should he be required to comply with the interlocutory orders made in the matter by the lower court before the hearing and determination of this appeal. In the circumstances, he prays that a stay of execution does issue.

4. In opposition to the application, the respondent has filed a Replying Affidavit dated 15th February 2023. She averred that the application is frivolous and an abuse of the court process. The respondent contends that the applicant has not demonstrated what substantial loss he stands to suffer if the orders herein are not granted. Further, the applicant is in contempt of court orders since he has not made upkeep payments as ordered by the court.

5. The application was canvassed by way of written submissions. The appellant relied on his written submissions filed herein on 16th May 2023 whereas, the respondent filed hers on 27th April 2023.

6. I have considered averments and the submissions by the parties herein and wish to consider whether the applicant has met the perquisite for grant of stay of execution pending appeal.

7. The principles for granting stay of execution in children matters was well settled in the case of Bhutt v. Bhutt Mombasa HCCC NO. 8 of 2014 (O.S.) where the Court stated 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 theConstitution.”

8. In exercising discretion in respect to stay of execution, Order 42 Rule 6(2) provide that the Court should be satisfied that: -a.The applicant will suffer substantial loss if a stay is not granted;b.The application for stay has been brought without undue delay; andc.The applicant has provided security for the due performance of the decree.

9. Beyond the requirements of Order 42, this being a matter concerning children, this Court is enjoined by the Constitution of Kenya 2010 and the Children Act 2022 to consider the best interests of the children.

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

11. Section 8 (1) and (2) of the Children Act 2022 on the other hand provides as follows:8. Best interests of the child -(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodiesa.the best interests of the child shall be the primary consideration;b.the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.(2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to-a.safeguard and promote the rights and welfare of the child;b.conserve and promote the welfare of the child; andc.secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.

12. Similarly, in Z.M.O vs E.I.M. [2013] eKLR Musyoka J. stated: -“As a matter of principle, grant of stay of execution of maintenance orders in children’s cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about it. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind, once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable.”

13. Having said that, we shall examine whether the applicant in the case herein has satisfied the above-discussed conditions.

14. I shall first deal with the issue of substantial loss. In my view, an applicant must clearly state what loss, if any, they stand to suffer. Further, the applicant ought to establish that the execution of the decree/judgment will create a chain of events or state of affairs that will irreparably affect or negate the core of applicant as a successful party in the appeal.

15. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR the court observed:“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, as is the case here, 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 very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

16. On keenly perusing the applicant’s application, the applicant has stated what substantial loss may occur to him if the stay orders are not granted. However as noted earlier, the best interests of the child are more paramount than that of the parties. The children’s interests supersede those of the parties. In saying so, I am persuaded by the case of C.K.K vs C.M.M. [2016] eKLR where the Judge stated:“In the circumstances of this case it is Baby CMM and not the two protagonists who stands to suffer loss since we are not dealing with a material claim.”

17. Likewise, in the instant case, it is the children and not the applicant who stands to suffer substantial loss if the orders sought are not granted. The rights of the children override the rights of the applicant and the applicant has not demonstrated to this court what substantial loss the children stand to suffer if the orders for stay are not granted. Furthermore, it has not been refuted by the applicant that he has not honored the court’s orders since judgement was rendered.

18. On the second requirement on whether this application has been made without unreasonable delay. The judgment herein was delivered on 8th December 2022. The applicant filed his Memorandum of Appeal on 16th December 2022 and the application herein for stay on 16th December 2022. I am of the opinion that the application has been filed timeously.

19. Regarding security, the applicant ought to satisfy the condition of security and it is upon the court to determine the same. In the instant application, the applicant has not offered any form of security.

20. I hold the opinion that in the instant case, stay of execution would militate against the best interests of the children herein. I am far from convinced that substantial loss will be visited on the applicant unless the orders sought are given. Indeed, the welfare of his children mandates that the lower court orders be complied with in every aspect thereof, pending further orders of the Court upon the hearing and determination of the appeal. Lastly, there is no security for the due performance that the appellant has provided. The result is that the application is disallowed.

21. I find no merit in the application dated 16th December 2022. I dismiss the same with costs.

RULING DELIVERED VIRTUALLY, SIGNED AND DATED AT KIAMBU THIS 19TH DAY OF OCTOBER 2023. ........................P. MULWAJUDGEIn the presence of:Duale – court assistantN/A - for the appellant/applicantMr. Kinyua - for the respondent