[2018] KEHC 8053 (KLR)
The court held that the orders of the Court of Appeal issued on 9th July 2010 were predicated on an appeal that was subsequently withdrawn by the applicant. Upon withdrawal of the appeal, those orders lapsed and could not subsist independently. Consequently, the application to review, set aside or discharge the...
Source-derived case information.
- Citation
- [2018] KEHC 8053 (KLR)
- Parties
- Applicant: V.V.A.; Respondent: H.S.P.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 79 of 2006
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Application struck out with costs to the respondent.
- Judges
- AO Muchelule, REA Ougo
- Legal Topics
- Maintenance Orders, Variation of Orders, Appeal Withdrawal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
V.V.A.
Applicant
H.S.P.
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the maintenance order issued by the Court of Appeal on 9th July 2010 could be reviewed, set aside or discharged after the withdrawal of the appeal.
- 2 Whether the respondent was still entitled to maintenance and rent after the appeal was withdrawn.
- 3 Whether the application to review, set aside or discharge the orders was competent.
Ratio Decidendi
The court held that the orders of the Court of Appeal issued on 9th July 2010 were predicated on an appeal that was subsequently withdrawn by the applicant. Upon withdrawal of the appeal, those orders lapsed and could not subsist independently. Consequently, the application to review, set aside or discharge the lapsed orders was misconceived, misplaced and incompetent. The matter reverted to the original orders of the High Court issued on 11th February 2010. The application was therefore struck out with costs to the respondent.
Court Disposition
Application struck out with costs to the respondent.
Orders
- The application to review, set aside or discharge the orders of the Court of Appeal dated 9th July 2010 is struck out.
- The applicant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
DIVORCE CAUSE NO. 79 OF 2006
V.V.A...........................................................PETITIONER
VERSUS
H.S.P.........................................................RESPONDENT
JUDGMENT
1. The petitioner V.V.A. and the respondent H.S.P. got married on 23rd July 1988. They cohabited in India, U.K. and then in Nairobi and Kisumu in Kenya. The marriage was dissolved on 24th July 2008.
2. Following an application dated 25th July 2008, the court on 11th February 2010 ordered that the applicant shall pay to the respondent Kshs.120,000/= per month for maintenance and a further Kshs.60,000/= for rent, if and when the respondent entered into a tenancy agreement following her acquisition of independent premises. She was at the time staying with her mother. In a ruling delivered on 9th July 2010, the Court of Appeal reviewed the orders of this court and reduced the maintenance amount to Ksh.60,000/= per month. The rent payment was not allowed by the Court.
3. In an application dated 19th May 2017 the applicant sought that the order of maintenance be reviewed, set aside and/or discharged on the grounds that:-
(a) the respondent was a businessman in gainful employment and with considerable wealth and assets, with several sources of income and was therefore more than capable of sustaining herself;
(b) she continued to stay with her mother and did not require to pay any rent;
(c) the only issue of their former marriage was now gainfully employed as managing director of [Particulars Withheld] International Limited; and
(d) the respondent, her father and family had unlawfully removed the applicant as director.
4. In opposing the application, the respondent stated that the applicant was able to meet the maintenance obligation as he had large business concerns both in India and in Kenya. Regarding the competence of the application, the respondent explained that the order of the Court of Appeal followed a Notice of Appeal that the applicant filed to challenge the orders of this court. With the Notice of Appeal was filed an application for stay of execution. It was in the application that the Court of Appeal made the orders in question. The respondent stated that following the orders, the applicant did not file the Record of Appeal. When she applied to have the appeal struck out, he filed a notice to withdraw the appeal. It was her case that, the appeal having been withdrawn the orders lapsed which took the matter back to what this court had ordered on 11th February 2010. I accept that position. The basis for the order sought to be reviewed was the appeal. Now that the appeal was withdrawn, the orders could not subsist on their own.
5. The consequence is that, the orders of the Court of Appeal issued on 9th July 2010 are no longer in place. Therefore, the application to review, set aside or discharge these orders is misconceived, misplaced and incompetent. It is struck out with costs.
DATED and SIGNED at NAIROBI this 6TH day of MARCH 2018.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 8TH day of MARCH 2018.
R.E. OUGO
JUDGE