[2001] KECA 246 (KLR)
The Court found that while the intended appeal was not frivolous, the applicant failed to demonstrate that refusal to grant stay would render the appeal nugatory. The children involved were not infants, and there was no evidence of serious or lasting emotional harm or practical difficulties that would make the...
Source-derived case information.
- Citation
- [2001] KECA 246 (KLR)
- Parties
- Applicant: Zuleikha Mohamed Naaman; Respondent: Gharib Suleiman Gharib
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application 360 of 2000
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed
- Judges
- AM Akiwumi, D Ole Keiwua
- Legal Topics
- Child Custody, Stay of Execution, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zuleikha Mohamed Naaman
Applicant
Gharib Suleiman Gharib
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether refusal to grant stay would render the intended appeal nugatory.
Ratio Decidendi
The Court found that while the intended appeal was not frivolous, the applicant failed to demonstrate that refusal to grant stay would render the appeal nugatory. The children involved were not infants, and there was no evidence of serious or lasting emotional harm or practical difficulties that would make the appeal futile if successful. The practical issues, such as changing schools, were not considered crucial or lasting enough to justify a stay. Therefore, the application for stay was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay is dismissed with no order as to costs.
- The appeal to be set down for hearing on a priority basis.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA (CORAM: AKIWUMI, TUNOI & KEIWUA, JJ.A.) CIVIL APPLICATION NO. NAI. 360 OF 2000 (177/2000 UR) BETWEEN
ZULEIKHA MOHAMED NAAMAN ............................ APPLICANT AND GHARIB SULEIMAN GHARIB .............................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Mombasa (Commissioner Mrs. Khaminwa) dated 15th November, 2000 in GUARDIANSHIP CAUSE NO. 2 OF 1998) ************************* RULING OF THE COURT
The present application for stay by the applicant will as is usual, be granted not only, where the intended appeal is arguable but also, if stay is not granted, the appeal if successful, would rendered nugatory. The appeal we can say right away, is not frivolous. But can it be said that the decision from which the applicant intends to appeal, which granted the custody of the children from the applicant, the mother, to the respondent, the father, would be rendered nugatory if the appeal succeeds? We would say, no! Firstly, the children, two boys, who are aged 12 and 13 are not quite infants. Secondly, there is no evidence to support the proposition that the appeal if successful, would be rendered nugatory, and really what does that imply. It is not an easy proposition, but as we see it, there would be no serious and lasting emotional debacle that would be involved.
The practical problems as to the boys move to new schools will not be that crucial and lasting as to render the successful appeal nugatory. In the result, the application is dismissed with no order as to costs and we also hereby order that the appeal be set down for hearing on a priority basis.
Dated and delivered at Mombasa this 19th day of January, 2001.
A. M. AKIWUMI
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
M. KEIWUA
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR