[2022] KEHC 2665 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL APPEAL NO. E049 OF 2021

SMK.......................................................................................................................APPELLANT

-VERSUS-

AMM...................................................................................................................RESPONDENT

(Being an appeal from the Judgment of the Children’s Court at Nairobi by Hon. R.O. Mbogo

(Resident Magistrate) delivered on the 10th June 2021 in Children Case No. 234 of 2018)

RULING

1. This is an application dated 30th June 2021 for the stay of execution of the judgment delivered by the Children Court at Milimani in Cause No. 234 of 2018 in which the applicant SMK. was ordered to be paying school fees, medical expenses and Kshs.10,000/= upkeep per month in respect of a minor child RK he has with the respondent AMM. In respect of the Kshs.10,000/= the full order was: -

“THAT both parties meet the cost of food and other utilities. The Defendant shall contribute Kshs.10,000/= per month while the plaintiff shall meet the shortfall. The same shall be paid by the 5th of every month beginning July 2021. ”

The respondent’s obligation was to provide shelter and clothing by virtue of having the custody of the child.

2. The applicant was aggrieved by the entire judgment and filed an appeal to this court complaining that the trial court had not considered the constitutional requirement of shared responsibility by parents and had not considered the means and income of the parties which had led to it imposing a heavy burden on him, including the order that he pays Kshs.10,000/= monthly for food and other utilities of the child.

3. In the affidavit in support of the motion for stay of execution of the orders in the judgment, the applicant stated that he was unemployed. Although ready and willing to pay the child’s fees, he stated that he was not able to pay the Kshs.10,000/= monthly or to meet the child’s medical expenses. He stated that he depended on part time contractual jobs whereas the respondent was an accountant earning Kshs.80,000/= every month. He further stated that he had another family to take care of. His case was that, if there was no stay granted he would suffer irreparable financial loss and hardship.

4. The respondent opposed the application through her replying affidavit. Her case was that the applicant was owner and director of Kitho Civil and Engineering Company Limited which undertakes the construction of roads and had many county jobs. He was also the owner and director for Kitui Cottages and Guest House Limited that operates several colleges and guest houses that were in great demand. She stated that, given this positon, the applicant should not be heard to complain that he cannot pay the Kshs.10,000/= per month or meet the school fees and the medical needs of the child. In any case, she said, a stay would mean that the child would be denied benefit of the orders of the trial court which would not be in its best interests. Lastly, she denied that she was employed or that she earned Kshs.80,000/= per month.

5. Written submissions were filed by the applicant’s counsel and by the respondent who represented herself. I have considered them.

6. Article 53(2) of the Constitution and section 4(2) of the Children Act provide that, in any dispute relating to a child, the court should bear in mind that the child’s best interests are the primary and paramount consideration.

7. Under Order 42 rule 6(2) of the Civil Procedure Rules, the applicant has to demonstrate that if stay is not granted he will suffer substantial loss; that he has brought the application without unreasonable delay; and that he has offered security for the due performance of such decree or order as may ultimately be binding on him.

8. The application was brought without unreasonable delay, and the applicant offered to pay the child’s school fees as he awaits outcome of the appeal.

9. However, the averments by the respondent that the applicant is owner and director of two limited companies that are in lucrative business did not meet any denial. The applicant did not swear a further affidavit to deny the averment. It means that the allegations by the applicant that he was not employed and had no means to meet the orders in the judgment, including the order to pay Kshs.10,000/= per month towards food for the child, were sufficiently countered. This would mean that the applicant has means to meet the obligations in the judgment. This is my preliminary view based on the affidavits. During the appeal, the court will consider whether or not the lower court was alive to the means of the parties when it decided the way it did.

10. In any case, it is unusual at this stage to stay the orders of the trial court pending appeal when the likely effect would be to compromise the statutory and constitutional rights of the child to education, medical care, food and nutrition. The better option would be to fast-track the appeal so that a final decision is made one way or the other.

11. For these reasons, I do not find that the applicant will suffer any substantial loss if stay is not granted. I consequently find no merit in the application which I dismiss with costs.

DATED and DELIVERED at NAIROBI this 3RD day of FEBRUARY 2022.

A.O. MUCHELULE

JUDGE