[2023] KEHC 25425 (KLR)

VWW v BT (SKT Suing thru Father) (Family Appeal E008 of 2023) [2023] KEHC 25425 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25425 (KLR)

Republic of Kenya

In the High Court at Nakuru

Family Appeal E008 of 2023

SM Mohochi, J

November 17, 2023

Between

VWW

Applicant

and

BT (SKT Suing thru Father)

Respondent

Ruling

Introduction 1. The Notice of Motion Application dated 27th July 2023 is brought pursuant to Article 159 and 53 of the Constitution of Kenya, 2010 Section 5, 6 and 8 of the Children Act No. 29 of 2022, Sections 1A, 1B and 63(c) and (e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law, seeking the following reliefs:i.Spentii.Spentiii.Spentiv.That this Honourable Court be pleased to stay execution of the judgment, decree and all consequential orders of the Children's Court made in Nakuru Chief Magistrate's Court Children's Case No. E050 of 2021 as consolidated with Nakuru Chief Magistrate's Court Children's Case No. EO15 of 2021 on the 11th October 2022 pending the hearing and determination of the Application.v.That this Honourable Court be pleased to grant the Appellant herein full custody of the minor herein pending the hearing of the Application herein.vi.That this Honourable Court be pleased to grant the Appellant herein full Custody of the minor herein pending the hearing of the Appeal herein.vii.That the Respondent be granted supervised access to the minor herein.viii.That this Honourable Court be pleased to order the OCS Nakuru Central Police Station ensure full compliance with these orders.ix.That the costs of the application be provided for.

2. The Application is supported by the sworn affidavits of VWW, the Applicant and biological mother of the minors JGM a female child aged 4 years and SKT a child aged 3 years and grounded on the following consolidated grounds:i.That On 11th October 2022 the Children's Court in Nakuru Chief Magistrate's Court Children's Case No. E050 of 2021 as consolidated with Nakuru Chiefii.Magistrate's Court Children's Case No. EO15 of 2021 delivered an ex-parte judgment granting the Respondent herein full custody of the minor herein.iii.That the suit in the trial Court proceeded ex-parte without the Appellant's knowledge despite the Appellant having an advocate on record.iv.That the Appellant was never notified on about the hearing and determination of the matter by her then advocates on record, Messrs Kamau Advocate who had been instructed by the Rift Valley Law Society (RVLS) to act on behalf of the Appellant.v.That prior to the impugned judgment and decree the minor herein was in the custody of the Appellant.vi.That aggrieved by the said judgment the Appellant filed an application for review which was dismissed on 14th June 2023 by the trial Court.vii.That aggrieved by the ruling dismissing the application for review the Appellant has filed the instant appeal.viii.That Since the Appellant has had the custody and care of the minor since birth, it is imperative that the full custody of the minor be granted to her, pending the hearing and determination of this application and the appeal.ix.That, the minor herein who is now aged three years, is a child of tender years in need of care and protection from her mother. Applicant’s Case.x.That the Appellant as the mother of the minor, has a right to give parental guidance in religious, moral, social, and cultural values to the minor.xi.That no prejudice will be suffered by the Respondent, if the orders sought are granted.xii.That the Appellant's Appeal which has high chances of success, will be rendered nugatory and the minor herein and the Appellant will suffer substantial loss, if execution judgment, decree and consequential orders is not stayed immediately.xiii.That the application ought to be granted in the interest of equity, justice, and best interest of the minor herein.xiv.That it is in the interest of justice and in the best interest of the minor herein that, this application is heard urgently and the orders sought herein be granted.

3. This Court on the 31st July 2023 directed as follows:The Application is Not certified as urgent warranting being heard and disposed of ex-parte in the first instance.i.The Application for stay of execution of Judgment/Decree in Nakuru CM's Children's Case No E050 of 2021 pending hearing of the Appeal, shall be heard and disposed of by way of written submissions (Not more than 5pages).ii.The Applicant Serves the Application together with his written submissions upon the Respondents within fourteen (14) days of today.iii.The Respondent files and serves Response and Written submissions within fourteen (14) days of service by the Applicant.iv.Ruling on the application for stay shall be on the 17th of November 2023.

4. The Applicant duly complied by serving the Application upon the Respondent on the 18th August 2023 and a return of service was filed in Court on the 23rd August 2023.

5. The Respondent has failed and/or refused to participate in this proceeding.

The Applicant’s Case 6. That she had an intimate relationship with the Respondent and from the said relationship they were blessed with one issue namely SKT who was born on 3rd July 2019 and is now aged four (4) years. She has annexed a copy of the minor's birth certificate.

7. The minor has been in her custody and care since she was born and she has been taking care of the needs of the minor solely until the year 2021 when she instituted a Children's case against the Respondent being Nakuru Chief Magistrate's Court Children's Case No.E015 of 2021.

8. That on the 11th October 2022, the Children's Court in Nakuru Chief Magistrate's Court Children's Case No. E050 of 2021 as consolidated with Nakuru Chief Magistrate's Court Children's Case No. E015 of 2021 delivered an ex-parte judgment granting the Respondent herein full custody of the minor herein. she came to learn that the suit in the trial Court proceeded ex-parte without her knowledge despite having an advocate on record.

9. That she was never notified on about the hearing and determination of the matter by her advocates on record, Messrs Kamau Advocate who had been instructed by the Rift Valley Law Society (RVLS) to act on her behalf.

10. That prior to the impugned judgment and decree the minor herein was in her custody.

11. Aggrieved by the said judgment and decree I lodged a review against the said decision. On 14th June 2023 the trial Court delivered an impugned ruling dismissing her application for review despite the fact that the Respondent did not oppose the application. She has annexed a copy of the said ruling and order. Aggrieved by the said decision she has now lodged the instant appeal.

12. On 14th June 2023 she requested for the certified copy of typed proceedings to enable her prepare the record of appeal however, the same has not been supplied to her until now.

13. The minor herein is a child of tender years in need of care and protection from her and that, she is entitled to custody, access and visitation rights by virtue of being the mother of the minor.

14. Further as the mother of the minor She has a right to give parental guidance in religious, moral, social, and cultural values to the minor. There is no order from the Court in favour of the Respondent prohibiting her from accessing and visiting the minor.

15. That no prejudice will be suffered by the Respondent, if the orders sought are granted. That the application ought to be granted in the interest of equity, justice, and best interest of the minor herein.

16. That it is in the interest of justice and in the best interest of the minor herein that this application is heard urgently and the orders sought herein be granted.

17. That the Applicant filed her written submissions on the 15th August 2023.

18. That she verily believes that, the Appeal has high chances of success and will be rendered nugatory if the orders sought are not granted immediately. That the minor and her will suffer substantial loss if the orders sought are not granted and execution stayed immediately.

19. That flowing from the above facts, the following issues fall for determination by this Court:a.Whether the Court should stay execution of the orders of the Children's Court made in Nakuru Chief Magistrate's Court Children's Case No. E050 of 2021 was consolidated with Nakuru Chief Magistrate's Court Children's Case No. E015 of 2021 pending the hearing and determination of this appeal?b.Whether this honourable Court should grant the orders sought in the application filed herein pending the hearing and determination of this application.c.Who should bear the costs of the application.d.Whether the Court should stay execution of the orders of the Children's Court made in Nakuru Chief Magistrate's Court Children's Case No. EO50 of 2021 was consolidated with Nakuru Chief Magistrate's Court Children's Case No. E015 of 2021 pending the hearing and determination of this appeal.

20. The Applicant submits that, the principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows:“No order for stay of execution shall be made under sub-rule (I) unless-(a)the Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

21. That the principles for grant of stay of execution are subject to the best interest of the minor and Article 53 (2) of the Constitution. In Bhutt v. Bhutt Mombasa HCCC N0. 8 of 2014 (0. S.) 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 an overriding consideration of the best interest of the child in accordance with Article 53 (2) of the Constitution which provides-“In exercising it's jurisdiction to grant stay of execution, the High Court is required by Order 42 rule 6 (2) of the Civil Procedure Rules to be satisfied that-1. The applicant will suffer substantial loss if stay is not granted;2. The application for stay has been brought without undue delay; and3. The applicant has provided security for the due performance of the decree or Order”

22. Reliance has been placed on the case of JMM v PM [2018] eKLR the Court held as follows in explaining the principles guiding the stay of execution.“The principles upon which the Court may stay the execution of orders appealed from are settled. The Applicant must approach the Court timeously and demonstrate the likelihood that he will suffer substantial loss if the order is denied.He must also furnish security for the performance of the decree in the event the appeal does not succeed. These are the requirements stipulated in Order 42 r 6(2) of the Civil Procedure Rules.”

23. That from the foregoing the Applicant submit that, she has made this application in the best interest of the minor herein who shall be deprived of the motherly care and affection in the event the orders issued by the trial Court is not stayed.

24. The Applicant submits that, the minor herein and her have suffered substantial loss and continue to so as a result of the orders issued by the trial Court. The minor who is now aged 4 years and is a child of tender years and has always been in her custody since birth and he has now been deprived of the motherly care and affection. The issue of security does not arise in this matter as the subject matter of the case relates to a minor. In the case of GKM v HMK (2020| eKLR the Court held as follows while responding to the issue of security:“There is no doubt; the application and the appeal were filed within reasonable time. Regarding depositing of security, this is not perse a monetary claim to require deposit of security. The suit revolves around provision of basic necessities for the children hence do not warrant deposit of security.”

25. Whether this Honourable Court should grant the orders sought in the application filed herein pending the hearing and determination of this application.

26. Apart from the order of stay of execution she has sought other orders from prayer 4 to 8 of the Application. These orders have been sought to protect the best interest of the minor pending the hearing and full determination of the appeal. Can the Court grant the said orders at the interim stage and before the hearing of the appeal? she answers in the affirmative.

27. The Applicant prays that, this Court do issue an order placing the full custody of the minor herein with her. Moreover, the minor needs care and protection, it is also imperative this Court do issue orders of access and maintenance. In support of this, she relies on the case of NST v AN;MNM (Interested Party) (2019] eKLR where the Court cited the following cases :-“Section 85 of the Children Act also provides for custody of a child. The said Section provides for principles to be applied in making custody order and the said principles include the best interest of the child.50. In Re S (an infant) [1958]1 AII ER 783, at 786 and 787, Roxburgh J said:“I only say this; the prima facie rule (which is now quite clearly settled) is that, other things being equal, children of this tender age should be with their mother, and where a Court gives the custody of a child of this tender age to the father it is incumbent on it to make sure that there really are sufficient reasons to exclude the prima facie rule."

28. Reliance has been placed on the Court of Appeal case of J.O. v S.A.O. [2016] eKLR stated:“There is a plethora of decisions by this Court as well as the High Court that in determining matters of custody of children, and especially of tender age, exceptwhere exceptioal circumstances exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new husband: where she is living in quarters that are in deplorable state; or where her conduct is disgraceful andlor immoral."

29. That from the foregoing the Applicant submit that, there are exceptional circumstances to warrant the Court to exercise discretion in her favour and award her custody of the minor herein in the interim.

30. The exceptional circumstance herein being that the minor is aged 4 years and is a child of tender years. He has been in her custody since birth and she has been taking care of his needs solely. In addition, no evidence has been presented before this Court to indicate or otherwise show that she is unfit to have the custody of the minor herein. All along she has been a responsible, loving and caring mother to the minor herein.

31. Based on the foregoing the Applicant urges this Court, to grant her full custody with orders of access and maintenance in the interim.

32. On costs of the application, the Applicant submits that, there is no reason why she should be denied the costs of this application. she urges the Court to uphold the principle that costs follow the event and award costs of the application her as she has given sufficient reasons to warrant the Court to exercise discretion in her favour.

33. The Applicant submits that, she has discharged the requirements for grant of stay and urge the Court to grant the orders as sought.

Analysis and Determination 34. This Application is predicated upon an Appeal ostensibly filed to challenge an order of dismissal of an application to set-aside judgment. This is not an appeal against the judgment.

35. This Court further notes that the Application does not attach the Memorandum of Appeal and that, the physical Court file is without the Memorandum of Appeal. Without the benefit of the same this Court has been left to determining the Application on the basis of the documents before it.

36. This Court equally contends that the contest as to whether the dismissal of an application to set aside ex-parte judgment was proper may if successful on appeal result in the matter being ordered to be heard on its merits by the trial Court.

37. The Court of Appeal, outlined the requirements for granting stay of execution pending appeal in Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365, It held that:“whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 (as it then was) of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security.”

38. The first requirement is that the intended appeal must be arguable. This first ground is therefore not met. The essence of considering whether the appeal raises triable issues is to avoid the same being rendered nugatory should the decision of the appellate Court overturn that of the trial Court.

39. The second aspect is to consider whether the Application before Court had been filed without undue delay. I noted that the Ex-Parte Judgment was entered on the 11th October 2022 the Applicant filed her Application for review and setting aside on the 5th April 2023 which was dismissed on the 14th June 2023 and this Application was filed on the 28th July 2023 slightly over one month after the order was made. Thus, I am of the view that, there is no undue delay.

40. Thirdly, this Court must determine whether not granting the order will occasion substantial loss to the Applicant. Substantial loss was explained in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that: -“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

41. I have perused the further Affidavit of the Applicant dated 28th February 2022 and noted that her main concern is custody of the minor but she affirms that no order exists baring her from access to the minor. Thus, she would not suffer irreparable loss where stay was not be granted. On the other hand, the Respondent has not participated but would appear to have the custody of the minor. This Court while balancing these two interests, must satisfy itself that that no party would suffer undue prejudice.

42. This principle was enunciated in the decision of the Court of Appeal in Absalom Dova v Tarbo Transporters [2013] eKLR, where it stated:“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the Court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation ... ”

43. This Court is alive to its jurisdiction to entertain Appeals against rulings and orders only expressly and where Leave is a prerequisite and in this instance the Appellant shall be expected to demonstrate having obtained leave. The Court Nonetheless grants stay to afford the Applicant her right to Appeal.

44. The Jurisdiction to make determination on the custody (Full or otherwise) of the minor SKT under Section 83 of the Children’s Act is before the trial Court in Nakuru Chief Magistrate's Court Children's Case No. E050 of 2021 as consolidated with Nakuru Chief Magistrate's Court Children's Case No. EO15 of 2021.

45. All other reliefs sought in addition to stay of execution are found to be without merit.

46. An Appeal against a judgment where custody orders have been made pursuant to section 83 of the Children’s Act may afford the Court jurisdiction to either confirm or overturn the finding so at this juncture it is premature to entertain the same.

47. This Court finds favor and allows the Application for stay, exercising its inherent jurisdiction on the following terms:i.An Order of stay execution of the judgment, decree and all consequential orders of the Children's Court made in Nakuru Chief Magistrate's Court Children's Case No. E050 of 2021 as consolidated with Nakuru Chief Magistrate's Court Children's Case No. EO15 of 2021 on the 11th October 2022 pending the hearing and determination of the Appeal is hereby issued.ii.That the Prayer for full Custody of the minor herein pending the hearing of the Appeal herein is declined.iii.That the Prayer for the Respondent to be granted supervised access to the minor herein is declined.iv.That the Prayer for the OCS Nakuru Central Police Station ensure full compliance with these orders is declined.v.The Applicant shall set down the Appeal for hearing within the next 60 days from todayvi.That the costs of the application be in the Appeal.It is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 17TH NOVEMBER 2023MOHOCHI S.MJUDGE