[2016] KEHC 4192 (KLR)
The court found that the appellant failed to provide admissible evidence of payment of school fees, as the documents he sought to rely on were not annexed to his affidavit nor specifically referred to therein. The court emphasized that in applications determined by affidavit evidence, any supporting documents must...
Source-derived case information.
- Citation
- [2016] KEHC 4192 (KLR)
- Parties
- Appellant: S N N; Respondent: M W M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 30 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- DN Musyoka
- Legal Topics
- Parental Responsibility Extension, Stay of Execution, Affidavit Evidence, Documentary Evidence Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S N N
Appellant
M W M
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the appellant has provided sufficient evidence of payment of school fees.
- 3 Whether the lower court properly extended parental responsibility.
Ratio Decidendi
The court found that the appellant failed to provide admissible evidence of payment of school fees, as the documents he sought to rely on were not annexed to his affidavit nor specifically referred to therein. The court emphasized that in applications determined by affidavit evidence, any supporting documents must be attached to the affidavit and properly commissioned. The mere filing of a list of documents, even if commissioned, is insufficient. Consequently, the appellant did not establish a factual basis for the stay of execution sought, and the application was dismissed for lack of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Motion dated 17th March 2016 is dismissed with costs to the respondent.
- The lower court file shall be returned to the Children’s Court forthwith.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 30 OF 2016
S N N…………………………………….APPELLANT
VERSUS
M W M…………………………………RESPONDENT
RULING
1. The application dated 17th March 2016 seeks stay of execution pending appeal. It is at the instance of the appellant, and the facts upon which it is based are deposed in the affidavit sworn by the appellant on 17th March 2016.
2. The applicant hinges his case on the allegation that he is being required to pay school fees for a child who has since attained the age of majority but parental responsibility has not been extended. He also argues that he is not in arrears for he has paid the fees in full.
3. I have perused the court file from the trial court. I have noted that parental responsibility was extended by the lower court suo moto on in the ruling that was delivered there on 1st March 2016.
4. I have noted too that although the applicant alleges to have settled fees through MPesa, no evidence has been provided. There are no anextures to the affidavit of the applicant sworn on 17th March 2016. I have noting therefore before me to establish whether there is any truth in the applicant’s assertion.
5. There was lodged simultaneously with the Motion a document headed list of documents dated 17th March 2016. It is a bundle of an MPesa statement, payslip, birth certificate, among others. Unfortunately, there is no reference to this document in the affidavit in support of the application. It is not marked as an annexture to the affidavit, and no nexus has been drawn to it.
6. There is need to mention that a list of documents is to be filed only in respect of processes where evidence is to be taken viva voce. The documents in the list would then be the documents that the party filing the list would be propose to rely on at the trial. There would be the documents to be referred to by the witnesses to be called at the hearing. They would be produced and marked as exhibits.
7. Where trial is by affidavit evidence only, with parties merely making oral submissions founded on the affidavits, as opposed to them calling witnesses, a party wishing to place certain documents before the court, must swear an affidavit and refer specifically to the documents sought to be relied upon. The documents must not only be referred to in the affidavit, they ought to be marked, a copy attached to the affidavit and the same commissioned by a Commissioner for Oaths.
8. Motion before me was not for disposal by viva voce evidence, and it was not so disposed of. Consequently, the list of documents was of no value at all. The fact that the documents in the bundle were commissioned by a Commissioner of Oaths does not salvage the situation.
9. I need not say more, there is no merit in the Motion dated 17th March 2016. It is for dismissal, and I do hereby dismiss the same with costs to the respondent. The lower court file shall be returned to the Children’s Court forthwith.
DATED, SIGNED and DELIVERED at NAIROBI this 1ST DAY OF JULY, 2016.
W. MUSYOKA
JUDGE