[2024] KEHC 1601 (KLR)

SKM v JLG (Family Appeal E003 of 2023) [2024] KEHC 1601 (KLR) (19 February 2024) (Ruling)

Neutral citation: [2024] KEHC 1601 (KLR)

Republic of Kenya

In the High Court at Nakuru

Family Appeal E003 of 2023

SM Mohochi, J

February 19, 2024

Between

SKM

Applicant

and

JLG

Respondent

Ruling

Introduction 1. These proceedings relate to IDM, SW, RW and JW (minors) whose maintenance proceedings whose judgment orders have been disregarded by the Applicant giving rise to the instant Appeal against a Ruling.

2. Before me is an Application filed under certificate of urgency filed pursuant to Under Order 42 Rule 6 of the Civil Procedure Rules 2010 and Sections 1A and 3A of the Civil Procedure Act CAP 21 of the laws of Kenya., whereby SKM the Applicant/Appellant is seeking stay of execution of an order and ruling dated 14th April, 2023 by Hon. Y. I. Khatambi (PM) in Nakuru Chief Magistrate’s Court Children’s Case No. 52 of 2016.

3. The instant Application seek the following specific reliefs:a.Spentb.That, pending the hearing and determination of the appeal, a temporary stay of execution of the Ruling and Orders made on 14th April,2023, In Nakuru Children's case 52 of 2016 JLG vs SK, by Hon. Y.I. Khatambi, do issue.c.Spentd.That, the trial Court file being Nakuru Children's Case 52 of 2016 JLG vs SK be placed before this Honourable Court and forms part of the record of appeal.e.That, Costs of this application be provided for.

4. The Applicant has anchored her Application on the following grounds;a.That, on 14th April, 2023 the Honourable Court rendered a ruling and made orders to the effect that the applicant should show cause why his salary should not be attached to recover maintenance arrears.b.That, the Applicant being aggrieved by the said ruling has filed an appeal against the impugned ruling and has annexed herewith the filed memorandum of appeal.c.That, it is just that there be a stay of execution of the said ruling pending, the hearing and disposal of the Appeal or further orders of this Court.d.That, the Applicant is likely to suffer substantial loss if the Orders sought are not granted as the Appeal will be rendered nugatory.e.That, the Respondent/Applicant has an arguable appeal which has overwhelming, chance of success.f.That, the Respondent will not suffer any prejudice if the orders sought herein are granted.g.That, it is in the interest of justice that the orders sought are granted.

5. This Court had on the 12th may 2023 allowed a temporary stay and directed parties to exchange response and/or written submissions which ultimately the Respondent complied with by filing a Replying Affidavit dated 15th May 2023 and both the Applicant and the Respondent filed their written submissions on the 29th May 2023 and the 5th June 2023 respectively.

Applicant’s Case 6. The Applicant submits that, 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.) which decision was also cited with authority by R Ngetich J, in LDT v PAO [2021] KLR 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 the Constitution."

7. In exercising discretion in respect to stay of execution, Order 42 Rule 6(2) as provided 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.

8. The above provisions of law have been laid out and given meaning in the case of GKM v VAO (suing as mother and next friend) [2022] eKLR, by Hon. E.K Ogolla.

9. The Applicant submits with respect to substantial loss that he has filed an appeal before this Court which appeal raises serious misdirection by the trial Court in its finding.

10. That If the order for stay of execution of the trial Court's ruling is not granted; the said appeal will be rendered nugatory thus limiting the applicant's right of appeal. In the case of Dhimani vs Shah (2008) eKLR page 165 the Court of appeal stated that:“The principles upon which the Court exercised its unfettered jurisdiction under the Court of Appeal Rules rule 5(2) (b) were: the applicant was required to show that the intended appeal or appeal was arguable and that unless the Court granted the order or orders sought (a stay of execution or an order of injunction or a stay of proceedings) the intended appeal would be rendered nugatory".

11. The Applicant submits that this application has been brought with speed as the impugned ruling was delivered on 14th April,2023 with this application having been filed on 11th May.2023.

12. On provision of security, Applicant submits that, in children's matter the Court is guided by the best interest of the minors. In this case, the Applicant submit that the children's interests have been well taken care as the minors are attending school; with the Applicant paying the school fees and the Applicant has moved the Court for extension of parental responsibilities of SW beyond her 18th birthday.

13. Applicant pray that the application dated 11th May, 2023 be allowed as prayed.

Respondents Case 14. The Respondent opposed the Application by filing a sworn Replying Affidavit dated 15th May 2023 describing the Applicant as one with mala-fide moving Court with unclean hands, mischievous, misconceived and devoid of merit and as such ought to be dismissed in the first instance as it is clearly an abuse of the Court process.

15. That the attempt by the Applicant herein is to evade an eventuality whose time has come therefore an abuse of the Court process and repugnant to Article 159 (2) of the Constitution of Keya 2010.

16. That similarly the Applicant herein has come before this Honorable Court with unclean hands seeking equity, whilst being selective with the facts of the case herein, whereas the laws of equity require that he who seeks equity must come with clean hands.

17. That, the ruling and orders delivered on 14th April, 2023 and the directions to show cause issued against the Applicant herein, are not execution orders but orders directing the Applicant herein to be heard on why the attachment and execution should not be allowed by the Court.

18. That therefore the Applicant herein is putting the cart before the horse, and is attempting to hoodwink the Court into a determination and/or finding that is suitable for him as the Applicant, however prejudicial to me as the Respondent and the children that she represent.

19. Further the ruling referred to above and the orders thereby issued were on the Applicant's application therein the Defendant/Applicant dated 17th May 2022 and, on her Application, therein the Plaintiff/Applicant dated 19th April, 2022.

20. That the Application for stay of execution herein is frivolous, baseless and an attempt by the Applicant herein to further ignore and violate the orders that were issued on 4th April, 2017 directing the Applicant herein who is playing footloose with this Court to meet his parental responsibilities which he has abandoned to date.

21. That the Applicant herein has indeed brought the application herein with inordinate delay, as the stay ought to have operated against the initial judgment and decree of the Court as issued on 4th April, 2017, and the Notice to Show Cause herein is a last result upon the continued frustration she has endured from the Applicant in fulfilling his parental obligations.

22. That, the doctrine of judicial estoppel, applies herein against the Applicant who on one had seeks the Honorable Court to extend parental responsibility over one child, wherein and on the other hand the Applicant does not want to appear before Court and show cause why his salary should not be attached for the absconded years since the delivery of judgment in 2017 where he failed to aid and/or contribute towards parental responsibility as directed by the Court resulting in accumulation of arrears.

23. That, the Applicant herein has caused the delay in the delivery of justice and as the maxim goes, "justice delayed is justice denied" which is contemptuous of the Applicant herein and a blatant disregard of the Court and its authority.

24. That, the Applicant has made the Respondent a beast of burden such that, in addition to managing her portion of the responsibilities as directed by Court, the Respondent is further burdened by having to shoulder the responsibilities awarded to the Applicant herein, who did not raise an objection to the same, when the Court gave its directions on parental responsibility.

25. That, the Applicant herein has not shown what substantial loss he would suffer as the ruling delivered on 14th April, 2023, sought to have the Applicant to show cause why his salary should not be attached to cover the accumulated arrears as of 2017 which are the monies are due and owing and therefore the same ought to be settled regardless.

26. That, in the case of EGK vs. SNT [2014] eKLR where Odera J held that,“There is also a duty now imposed on Courts to ensure that the factors Considered are in consonance with the overriding objective of Civil Litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court."

27. That, it is repugnant to justice that the Applicant herein should further drag on the issues whereas, all that was required was his participation and contribution, which has not been meted since 2017 resulting in the Notice to Show Cause Five (5)years down the line.

28. That, further to the above, I have suffered immensely trying to ensure that the children receive the education and medical care required, for their survival and in their best interest, which is fundamentally the underlying principle in the suit herein.

29. That, the Applicant herein ought to deposit security for costs, if the Application herein is to be allowed.

30. The Respondent urges that, this Court dismisses the application herein for being frivolous, vexatious and an abuse of the Court process.

31. That, Order 42 Rule 6 of the Civil Procedure Rules outline principles for grant of stay of execution pending appeal which conditions the Applicant has not demonstrated; for instance the substantial loss she will suffer given that they have been separated for more than 8 years as of today nor has she offered any security.

32. That, the purpose of stay of execution pending appeal is to preserve the subject matter of appeal/suit. In this case the subject is marriage.

33. Which leaves the question, how can one preserve a marriage after decree absolute is issued?

34. That, upon issuance of the ‘decree absolute’ on the 8th day of September 2022 the marriage herein was deemed duly nullified. Further that on the 21st day of November 2022, the marriage registrar who duly received the same on the same day and as such the decree absolute was henceforth deemed duly registered and/or entered into the register. That the only way this can be reversed is if the Parties undertook another marriage ceremony which he is not willing nor interested.

35. That, the orders sought therefore in both the appeal and this instant application are untenable and amount to a great abuse of the Court's time.

36. That, the prayers for observatory reconciliation are untenable as the same has been attempted and further paragraph 7 of the Supporting Affidavit confirms so. Although under the said paragraph, the Appellant indicates that conclusion was not arrived at, what she ought to have indicated is that her preferred outcome was not reached as I was no longer interested in the marriage.

37. That, contrary to the averment at paragraph 11 of the supporting affidavit, I verily believe that the Appellants' appeal is frivolous and with slim to no chances of success particularly on the account of my watertight evidence on how the marriage was irretrievably broken down, element of desertion having been proven by not only myself but also by the Appellant during the hearing where she admitted that she had left the matrimonial home in 2015 which amounted to 7 years at the time of the hearing. The trial Magistrate therefore properly decreed the dissolution of the marriage.

38. That, the Application is made in bad faith and prejudicial to the Respondent if allowed.

39. That, in the case of Nyabuti versus Mutindi [2021| eKLR, the Court in disallowing an application for stay pending appeal held that:“.. I do agree with the Respondent that this Court cannot stay the orders of dissolution of the marriage. Decree nisi having been made absolute."

40. The Respondent contends that it is in the best interests of justice that this instant application be dismissed with costs to the Respondent.

Analysis and Determination 41. I have given due consideration to the Application and the reply made in favor of, and in opposition to, herein. Order 42 Rule 6 of the Civil Procedure Rules, pursuant to which the application has been brought, provides that:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order, but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside..."

42. Thus, the conditions an Applicant for stay of execution of decree or order needs to satisfy, as set out in Rule 6(2) of Order 42 aforementioned, are:a.that substantial loss may result to the applicant unless the order is made;b.that the application has been made without unreasonable delay.c.that such security as the Court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.

43. The rationale for the conditions aforementioned was aptly given in Machira T/A Machira & Co. Advocates vs East African Standard (No. 2) [2002] KLR 63, thus:“The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the Court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in Courts, which is to do justice in accordance with the law and to prevent abuse of the process of the Court."

44. The Court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

45. “Decree” was issued on the 4th day of April 20217 and that the same was never challenged on review or Appeal. The Notice thus to show cause would constitute execution of the decree.

46. The Applicant has not demonstrated that substantial loss shall be occasioned should the stay orders not be granted.

47. This Court is equally unpersuaded of a stay against execution of decree order granted and uncontested for over seven (7) years from April 2017.

48. Accordingly, although, the application was filed without undue delay, I am far from convinced that substantial loss will be visited on the Applicant unless the orders sought are given.

49. This Court remains alive to the fact that the Orders which the Applicant has failed and or refused to comply with relate to maintained of the children and that it would not be in the children’s best interest to grant a stay order pending an Appeal against a ruling.

50. The impugned ruling Appealed against was a discretionary order and ruling made with very limited parameters on Appeal

51. In the result, I find no merit in the application dated 11th May 2022. i.The same is hereby dismissed with no order as to costs.ii.The Applicant shall set down the Appeal for admission, directions and hearing within the next sixty (60) days from the date hereof.It is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 19TH FEBRUARY 2024. ...........................MOHOCHI S.MJUDGE