[2014] KEHC 7317 (KLR)
The court found that granting a stay of execution of the order for payment of school fees would negatively affect the welfare of the child, particularly with respect to the child's education. The Children Act mandates that the welfare of the child is the paramount consideration in all proceedings concerning...
Source-derived case information.
- Citation
- [2014] KEHC 7317 (KLR)
- Parties
- Appellant: S B M; Respondent: S A O
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application for stay of execution disallowed; costs awarded to respondent
- Judges
- DN Musyoka
- Legal Topics
- Child Welfare, School Fees Orders, Stay of Execution, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S B M
Appellant
S A O
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the primary court's order on payment of school fees should be granted pending appeal.
- 2 Whether granting a stay would negatively impact the welfare of the child.
Ratio Decidendi
The court found that granting a stay of execution of the order for payment of school fees would negatively affect the welfare of the child, particularly with respect to the child's education. The Children Act mandates that the welfare of the child is the paramount consideration in all proceedings concerning children. As such, the application for stay could not be granted as it would contravene this statutory obligation. The court therefore disallowed the application for stay and awarded costs to the respondent.
Court Disposition
application for stay of execution disallowed; costs awarded to respondent
Orders
- The application for stay of execution is disallowed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 35 OF 2013
S B M………..…APPELLANT
VERSUS
S A O…...…RESPONDENT
RULING
1. The application dated 29th May 2013 is for stay of execution of the order of the primary court made on 20th May 2013.
2. The said order directed the parties to identify suitable schools for the elder child of their marriage to join in the third term of 2013 and that in the meantime the school fees in respect of the 1st and 2nd terms at School be paid at the ration of 70:30 as against the father.
3. The father was dissatisfied with the said orders and filed the present appeal against the said orders. The memorandum of appeal was lodged in court on 28th May 2013. The application dated 9th May 2013 is designed to obtain stay of the said orders pending the hearing and disposal of the said appeal.
4. As it will be noted from the said orders, the current suit is about the education of the children of the parties. The orders relate to payment of school fees. It is these orders that I am asked to stay. No doubt staying the said orders will impact negatively on the welfare the child so far as his education is concerned. I am enjoined by the Children Act to treat the welfare of the child as a matter of paramontary.
5. The orders sought in the instant application cannot be granted in the manner sought by the applicant. I hereby disallow the application. I will award costs of the application to the respondent.
DATED, SIGNED and DELIVERED at NAIROBI this 31st DAY OF January, 2014.
W. MUSYOKA
JUDGE