REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

CIVIL APPEAL 9 OF 2018

LAO............................................................APPELLANT

VERSUS

OK ARAP M............................................RESPONDENT

RULING

1. L A O, the Appellant herein is by her application (the Application) dated 16.3.18, seeking stay of execution of the Judgment of 24.1.18 in Tononoka Children’s Court Case No. 233 of 2013 (the Judgment) and revert to the status quo ante on interim orders of 11.6.13 and 8.10.14 pending the hearing and determination of the Appeal she has filed herein.  

2. The Appellant claims that the Judgment had the effect of reviewing the orders of 11.06.2013 and 8.10.14 with regards to custody and maintenance of the child to the detriment of a child who has special needs and who suffers from psychosomatic disorder. In the Judgment, the Hon Magistrate reduced the maintenance of the child of the parties’ payable by OK Arap M, the Respondent from Kshs 52,639/= to Kshs 10,000/= per month. The Respondent was to cater for medical needs as and when the medical issues arise in place of an existing medical cover provided by his employer, amongst other issues to the detriment of the child. The Appellant and the child shall suffer loss and damage as the Respondent already withdrew the medical cover for a few weeks after the Judgment causing the child to suffer and only reinstated it when the Appellant threatened to go to court. Unless the prayers sought are issued, the child shall continue to suffer against the best interest of the child. The Appellant claims that she has an arguable appeal that has overwhelming chances of success and deserves the right to ventilate the same. The Appellant claims that she currently works with her elderly father in Kisumu assisting him with farm work  , and he pays her an allowance that she uses for the child's needs.

3. The Respondent in his replying affidavit sworn on 29.3.18 avers that the Application is vexatious, frivolous, defective, bad in law and therefore an abuse of the process of Court. The child is well covered under his employer's medical scheme. He exhibited a medical card for the child and a letter that the child was in the former cover of 2017 and is still covered for 2018. Neither the Applicant nor the child shall suffer any loss as the Respondent will pay school fees for him and the child has medical cover. 

4. The Respondent further stated that the Appellant keeps serving the documents on M/S Mboku Co. Advocates while the firm that has always been on record is M/s IRB Mbuya and Company Advocates thus causing great confusion. He further avers that Appellant's Advocate has never entered appearance and as far as he knows, the firm on record is Aziz and Company Advocate. He prayed that the Application be dismissed and that the status quo be maintained pending the hearing and determination of the Appeal.

5. The jurisdiction of the Court to grant stay of execution is set out in Order 42 of the Civil Procedure Rules which provides:

''(2) No order for stay of execution shall be made under subsection (1) 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 order for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant''

6. This is a matter concerning a child. The Court is mindful of the provisions of the Constitution of Kenya, 2010 and of the Children Act which oblige the Court to give paramount importance to the best interest of the child. Article 53(2) of the Constitution provides:

“A child’s best interests are of paramount importance in every matter concerning the child.

The Children Act on the other hand provides at Section 4(3) that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

7. As the Court makes its decision that will impact the child herein all circumstances affecting the child must be taken into account. The overriding focus shall be a solution that is in the child's best interests.

8. The law requires that an application for stay of execution be filed without unreasonable delay. The decision of the lower Court by which the Applicant is aggrieved was made on 24.1.18 while the Application was filed on 16.3.18. I am therefore satisfied that this Application for stay has been brought to court in a timeous manner.

9. On the issue of loss, the Court must look beyond the possible substantial loss to be suffered by the Applicant and consider the substantial loss to be suffered by the child. The interests of the child supersede those of the parties and must be upheld at all times. It is not disputed that the child suffers from a medical condition. Whether the condition is terminal or not is however contested. It would however appear that the condition requires constant medical. If the orders sought are not granted, the child’s monthly maintenance will be reduced from Kshs 52,639/= to Kshs 10,000/= per month. It is not clear how this reduction will affect the health and general wellbeing of the child. The decision of this Court must be made with the ultimate goal of fostering and encouraging the child's happiness, security, health, and emotional development. Pending the hearing and determination of the Appeal therefore, restoring the status quo ante will be in the best interest of the child.  The balance tilts in favour of the child.

10. The merits of the decision of the learned Magistrate to reduce the monthly maintenance are the subject of the Appeal filed by the Applicant which is yet to be heard. This issue will best be considered at the hearing of the Appeal. Any attempt to interrogate the correctness of the judgment of the lower Court will inevitably preempt the Appeal.

11. In the circumstances, I allow the Application dated 16.3.18 and direct that the Appeal herein be fixed for hearing on priority basis, for the expedited hearing and disposal of the same in the best interest of the child. 

DATED, SIGNED and DELIVERED in MOMBASA this 20^th December 2018

________

M. THANDE 

JUDGE

In the presence of: -

........................................ for the Appellant

....................................for the Respondent

.......................................... Court Assistant