[2005] KEHC 2742 (KLR)
The court found that the respondent was duly served with the maintenance order and had failed to pay the required sums, except for three months. The respondent's claim of unemployment and reliance on relatives did not excuse his non-compliance, as the maintenance order remained in force and had not been varied. The...
Source-derived case information.
- Citation
- [2005] KEHC 2742 (KLR)
- Parties
- Applicant: Satpal Kaur Rihal; Respondent: Surinder Singh Rihal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 163 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application for Enforcement of Maintenance Order
- Outcome
- Application allowed with conditions.
- Legal Topics
- Child Maintenance, Enforcement of Orders, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Satpal Kaur Rihal
Applicant
Surinder Singh Rihal
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Enforcement of Maintenance Order
Legal Issues
- 1 Whether the respondent is in default of court-ordered maintenance payments for the children of the marriage.
- 2 Whether the respondent's financial circumstances excuse non-payment of maintenance.
- 3 Whether the court should order committal to civil jail or other enforcement measures for non-payment.
Ratio Decidendi
The court found that the respondent was duly served with the maintenance order and had failed to pay the required sums, except for three months. The respondent's claim of unemployment and reliance on relatives did not excuse his non-compliance, as the maintenance order remained in force and had not been varied. The court held that the respondent was in contempt of court for failing to pay maintenance. However, before resorting to committal to civil jail, the court allowed the respondent a final opportunity to pay the outstanding arrears within 14 days, failing which attachment and committal would follow. The court emphasized the paramount duty of a parent to provide for their children and...
Court Disposition
Application allowed with conditions.
Orders
- The respondent shall pay the outstanding sum of Kshs. 120,000 for maintenance arrears up to December 2004 within 14 days from the date of the ruling.
- In default of payment, the respondent shall be arrested and committed to civil jail for six months.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 163 OF 1999
SATPAL KAUR RIHAL…..…………………..……………….………PETITIONER
VERSUS
SURINDER SINGH RIHAL………………………………………….RESPONDENT
RULING
By a judgement of this court which was delivered on 22nd day of August, 2003 by Hon. Aluoch J. the marriage between the petitioner and the respondent was dissolved and the respondent was ordered to pay a sum of kshs. 10,000/= per month towards the maintenance of the two children of the marriage.
The application before me is brought under rule 59 of the Matrimonial Causes Rules. The petitioner seeks for orders;-
1) That the respondent be ordered to pay a sum of Kshs, 90,000/= being the arrears of the maintenance for the two children of the marriage with effect from November, 2003 to July 2004 and further payments at the rate of kshs. 10,000/= per month in terms of the decree nisi issued herein. Secondly, the petitioner seeks for an order that in default of the payment within 14 days or such other time as this court may specify the respondent should be committed to civil jail.
The application is premised on the grounds that, the petitioner earns a very nominal income and she is unable to meet the expenses of the children. Moreover, the respondent has failed to comply with the order to pay the maintenance for the children. The petitioner has also sworn an affidavit in support of her application and has given a detailed account and justification why this application should be granted.
The respondent was duly served with the order of decree nisi through his advocates as per the affidavit of service. The respondent only remitted three cheques for September, October and December 2003 in respect of the maintenance. Despite repeated reminders, the respondent has failed to pay further sums. Counsel for the petitioner therefore submitted that this court should not accord any hearing to the respondent who is in contempt of court.
On the other hand, the respondent filed a replying affidavit whereby he has given reasons for his failure to honour the order by the court. The respondent claims that he has been jobless and relied in his uncle Amrik Singh Rihal who provided him with housing and personal upkeep through his company Gurbaksons (K) Ltd.
I have given his replying affidavit due consideration as well as all the material that was placed before me. The provision of rule 59 (1) are very clear as follows:-
‘’ in default of payment to any person of any sum of money at the time appointed for the payment thereof, an application may be made to a judge in chambers supported by affidavit (of service of the order and non-payment) and the judge may make such order as to attachment of the person or the property of the person so failing to pay as in the circumstances may seem expedient’’
Hence, according to the above provisions, all I need to ensure is that the respondent has defaulted in payment of the maintenance and that he was served with the order. The above is not denied by the respondent. I therefore find his excuses for not paying maintenance preposterous as the order that required him to pay is still in force, his financial circumstances notwithstanding. The respondent has a duty to pay the sum as ordered for the maintenance of his children vide the provisions of rule 58 of the M.C. Rules, this court is also empowered to order the attachment or committal of the respondent to civil jail.
It is obvious that the respondent has failed to pay the sum for the support of his children and I am satisfied that he is in contempt of court. However since I would like to exhaust all civil remedies available in order to enforce and collect the outstanding arrears, I am inclined to allow the respondent to pay all the outstanding sum of maintenance amounting to Kshs. 120,000/= up to December, 2004within 14 days from the date of this ruling in default, let there be an attachment of the respondent by way of his arrest and committal to civil jail for a period of six (6) months.
The petitioner shall have the costs of this application.
It is so ordered.
Ruling read and signed on 21st January, 2005
MARTHA KOOME
JUDGE