[2022] KEHC 15904 (KLR)

SMK v ENR (Civil Suit E027 of 2022) [2022] KEHC 15904 (KLR) (Family) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15904 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit E027 of 2022

MA Odero, J

November 4, 2022

Between

SMK

Appellant

and

ENR

Respondent

Ruling

1. Before court is the Notice of Motion dated March 10, 2022 by which the applicant Sylivia Mueni Kathukyaseeks the following orders:-“1. Spent2. Spent3. Thatpending the hearing and determination of the Appeal the Honourable court be pleased to issue order of stay of execution of the Judgment delivered by Hon Oluoch on the 23rd of March 2022. 4.Spent5. Thatpending the hearing and determination of the Appeal the honourable court be pleased to grant orders restricting the Respondents unfettered access to the minor child to structured phone access.6. Any other orders the court deems fit in the interest of justice7. thatthe costs be in the cause.”

2. The application which was premised uponarticle 53 of the Constitution of Kenya, sections 4,6,7,8,113 and 114 (a) of the Children Act 2001, Laws of Kenya. Order 51 of the Civil Procedure Rules cap 21 Laws of Kenya and all other enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant.

3. The respondent Euticus Nahason Riuguvehemently opposed the appeal through his replying affidavit dated June 3, 2022. The matter was canvassed by way of written submissions. The Applicant did not file any written submissions whilst the Respondent relied upon his submissions dated June 10, 2022.

BACKGROUND 4. The applicant and the respondent are the biological parents of the minor known as ‘KKK’. The genesis of this Appeal is the judgment which was delivered by Hon M.A. Otindo, Senior Resident Magistrate in Nairobi Children Case No. 1586 of 2019. In that judgment which was delivered on March 3, 2022, the court made the following orders:-“(a)The parties shall have joint legal custody of the minor.(b)The plaintiff shall have unsupervised alternate Saturday access to the minor from 10. 00 am to 4. 00 pm with effect fromMarch 12, 2022. The parties shall agree on picking up and dropping off points through their advocates. If no agreement is reached, they are at liberty to move the court for directions.(c)The defendant shall avail a copy of the child’s birth certificate to the Plaintiff within 30 days from the date of this judgment, through the advocate on record.(d)Each party shall bear its own costs.”

5. Being aggrieved by the decision of the Children Court, the applicant filed a Memorandum of Appeal dated March 10, 2022. Contemporaneously with the Appeal, the Applicant filed this application seeking to stay the orders made by the trial court.

6. The applicant is particularly aggrieved by the orders granting respondent unfettered and unsupervised access to the minor each Saturday from 10. 00 am to 4. 00 pm. She argues that the same court had previously limited the Respondents access to the minor. That the conduct and behaviour of the Respondent has been detrimental to the welfare of the child.

7. Theapplicant alleges that the respondent is only pursuing this issue of access as a means to frustrate her. That after one incident of such access the minor fell seriously ill. Theapplicant claims that the respondent has been rude, temperamental and unco-operative intentionally making it difficult for the Applicant to facilitate his own access to the child. That the applicant has been forced to employ body guards to protect the minor whilst he is with the respondent.

8. The applicant claims that the minor who is aged five (5) years has not seen the Respondent for a long period of time, thus it would be unjust to leave him alone with the a person who is to all effects a stranger to the child. That the minor suffers from allergies and the Respondent does not know how to react in the event that the child suffers an attack. The applicant urges this court to stay the execution of this order of access and only allow the Respondent structured phone access to the child.

9. The respondent as stated earlier vehemently opposed this application. He alleges that this application has been filed by the applicant in bad faith and is purely aimed at setting personal scores with the Respondent.

10. Therespondent avers that the applicant has been in the habit of disobeying orders issued by the trial court regarding his access to the child. The respondent denies that he has acted unreasonably and categorically denies that he has subjected the child to any danger. That the orders for phone access were only granted by the trial court due to the Government imposed restrictions during the height of the COVID 19 Pandemic.

11. The respondent asserts that he has always been keen and interested in the welfare of his child hence his desire to have regular access to the child. He urges the court to dismiss this application in its entirety.

Analysis and Determination 12. I have carefully considered this application, the affidavit filed in Reply as well as the written submissions filed by both parties. The applicant is seeking a stay of execution of the orders made by the learned trial magistrate in her judgments delivered on July 7, 2019.

13. Order 42 Rule 6(2) of the Civil Procedure Rules 2010provide for the conditions to be met in considering an application for stay of execution. The court must satisfy itself that-(a)The application has been brought without undue delay.(b)The applicant stands to suffer substantial loss if the stay is not granted.(c)Theapplicant has provided security for the due performance of the decree.

14. The impugned orders were made in relation to the maintenance, education and upkeep of the minors. It is trite law that in matters concerning the welfare of children courts are required to give priority to the best interest of the child.

15. The Constitution of Kenya 2010 provides at article 53 (2) that:(2)A child’s best interests are of paramount importance in every matter concerning the child.”

16. Likewise the Children Act 2022 at section 8(1) provides as follows:-“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies,a.the best interests of the child shall be a primary considerationb.....................c......................” (own emphasis)

17. In the case ofBhuttvBhutt – Mombasa HCCC No 8 of 2014, the court held 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.” (Own emphasis)

18. The judgment in question was delivered on March 3, 2022. This Application for stay was filed on March 10, 2022barely one (1) week after the said judgment was delivered. I find that the application was filed in a timely manner.

19. It is not for the court at this stage to pronounce itself on the merits or otherwise of the appeal filed by the Applicant. All that the court needs to consider is whether the application for stay is merited. There is no dispute that the Respondent is the biological father of the subject child. It goes without saying that a child ought to have regular contact with both parents in order to grow up in a happy and well adjusted manner.

20. As stated earlier the primary consideration in matters concerning children is the best interests of the child. In my view, it cannot be contrary to a child’s best interests to have regular contact and interaction with his father.

21. I am not persuaded by the allegations which have been made by the Applicant. There has been no connection shown between the Childs visit to his father and the fact that the child fell ill thereafter. The illness of the child cannot be blamed on the respondent.

22. Further, I have seen no evidence to suggest that the respondent has ever harmed the child nor is there any evidence that the respondent poses a risk or danger to the child. I fail to see what loss or prejudice the applicant will suffer if her son has regular contact with his own father.

23. All in all, I am not persuaded that this application for stay has any merit. Accordingly, I dismiss the application datedMarch 10, 2022. This being a family matter I direct that each party pay its own costs.

Dated in Nairobi this 4th day of November, 2022. MAUREEN A. ODEROJUDGECIVIL SUIT NO. E027 OF 2022 RULING