REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

CIVIL APPEAL NO 120 OF 2019

GERALD NYAGA NJUE....................................................................................APPLICANT

VERSUS

MARY WANGARE KIRUMBA....................................................................RESPONDENT

(Being an appeal from the Ruling of the Honourable Senior Resident Magistrate

H.M Mbati (Mrs.) delivered on 11^th September 2019)

RULING

1. Before this for determination is the Notice of motion dated 17^th October 2019 by which the Application GERALD NYAGA NJUE seeks the following orders:-

“a. Spent.

 b. Spent

 c. THAT this Honourable court be pleased to stay execution of Order No. 1 of the Orders issued on 7^th October 2019 pending hearing and determination of the intended appeal.

 d. That this Honourble Court be pleased to grant the Applicant leave to appeal out to time against the order of Honourable Senor Resident Magistrate, H M Mbati (Mrs) delivered on 11^th September 2019 in Children Case No 313 of 2016.

 e. That costs of this application be provided for.”

2. The Application was premised upon Sections 79G and 95 of the Civil Procedure Act, Order 46 Rule 6 (2) of the Civil Procedure Rules and Sections 1A, 1B, and 3A of the Civil Procedure Act and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent MARY WANGARE KIRUMBA opposed the application through her Replying Affidavit dated 14^th November 2019. The Application was canvassed by way of written submissions.

  BACKGROUND

4. The genesis of this Application is the Ruling delivered on 11^th September 2017 by Hon H.M. MBATI – Senior Resident Magistrate in Nairobi Childrens Case No .313 of 2016. Vide said Ruling the trial court made the following orders-

“1. THAT the Defendant to settle in full the amount totaling to Kshs 400,000/- by end of September 2019. In default, a warrant of arrest shall issue without further notice and the Defendant shall be imprisoned for 28 days under Section 101 (7) of the Children’s Act.

 2. THAT the claim for school fees and related expenses is disallowed and the Defendant is discharged from paying school fees for C.N for the entire 2019 since annual school fees was paid in January 2019.

 3. THAT going forward, the Plaintiff is at liberty to return C.N to Consolata School. In the alternative, the parties may discuss and agree an alternative school that C.N may join. All the same, the Defendant is expected to provide school related expenses such as stationery and personal effects required by C.N until he completes his secondary education.

 4. THAT in the circumstances, parental Responsibility for C.N is here extended pursuant to Section 28 of the Children’s Act to ensure the completes his secondary education.

 5.  THAT if he is in boarding, hi maintenance portion of Kshs 12,500/- shall only be paid during school holidays. Likewise, his daily maintenance of Kshs 417/- shall be provided by the Defendant when he is on half terms, for the number of days he shall be out of school.”

5. Being aggrieved by the above ruling the Applicant sought to file an appeal out of time and also filed this present application seeking to stay Order number (1) pending heading and determination of the intended appeal.

6. The Applicant prayed that Order Number (1) directing him to settle in full arrears of maintenance amounting to Kshs 400,000 be stayed. He pleaded that the monthly maintenance of Kshs 50,000 awarded by the court was excessive in the prevailing tough economic times given that he already provides for the minors shelter and education. That he is only able to afford Kshs 10,000 per month.

7. The Applicant further averred that he had made a payment of Kshs 290,000/- towards the minors school fees at Consolata School but that the Respondent instead moved the child to Juja Preparatory School. As a consequence the money he had paid to Consolata remained unutilized. That the Respondent has refused to refund him this sum of Kshs 290,000/- which he could have used to offset the Kshs 400,000/- arrears.

8. The Applicant further averred that he failed to file an appeal within the time allowed, as he was unaware that Ruling had been delivered. That his Advocate failed to apply for stay of Execution in the lower court. He seeks enlargement of time within which to file the appeal and asserts that this will not prejudice the Respondent.

9. On her part the Respondent deponed that the Applicant had failed to comply with the orders of maintenance made by the Childrens Court leading to the accumulation of arrears of maintenance. She argues that the Applicant is a man of means who is financially secure and is well able to afford the Kshs 50,000 monthly payment ordered by the court. That a stay of execution would not be in the best interest of the minor. The Respondent urges the court to dismiss the application.

 Analysis and Determination

10. I have carefully considered the present application, the Affidavit in Reply as well as the submissions on record.

11. Order 42 Rule 6(2) of the Civil Procedure Rules 2010 provide 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 stayis not  granted.

( c) The Applicant has provided security for the due performance of the decree.

12. In this case the Ruling in question was delivered on 11^th September 2019. The orders were issued on 7^th October 2019. The Notice of Motion was filed on 17^th October 2019. Thus this application was filed about one (1) month after the order being challenged was made.  Accordingly, I find that the application was brought in a timeous manner.

13. The impugned orders were made in relation to the maintenance and upkeep of a minor. It is trite law that in matter concerning the welfare of children courts are required to give priority to the best interest of the child.

14. 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.”

15. Likewise Children Act at Section 4(2) 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, the best interests of the child shall be a primary consideration”. (own emphasis)

16. In the case of BHUTT VS BHUTT – 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)

17. The Applicant claims that he stands to suffer great prejudice if the orders are not stayed as the amount awarded as maintenance were in his view excessive and that he will to be able to recover the amount he paid to Consolata School.

18. The question of whether or not the maintenance awarded is excessive is one which cannot be determined at this interim stage. That is a matter, which can only be determined upon a full hearing of the Appeal.

19. The orders which the Applicant seeks to stay related to the maintenance of a minor. It cannot be in the best interests of the minor to stay said orders. The Applicant has not denied paternity and as such, he together with the Childs mother have an obligation to provide for the needs of their child.

20. It has been revealed that the Applicant has not complied with the orders of maintenance. The Applicant is reminded that courts do not make orders in vain. Parties are obliged to obey court orders even where they do not agree with said orders.

21. It is trite that he who comes to equity must come with clean hands. It is duplicitous of the Applicant to approach this court seeking to stay orders, which he has in any event disobeyed.

22. In the case of MN – VS – TAN & another [2015] eKLR a case which is on all fours with the present case the court held as follows:-

“ A valid court order has to be obeyed or complied with regardless of how aggrieved a party is about it. The order has the force of law.  It is not a mere wish or proposition. Disobedience or non-compliance with it attracts severe consequences.  It would appear to me that the appellant believes that the orders of 30^th July 2013 are not valid, and has explained why he has chosen to disregard or disobey them. Yet he is bound to obey the orders for as long as they are still in force.  He has no choice, he cannot decide when and how to obey or comply with them.

The appellant has applied to the court for a discretionary relief, yet he is not ready to obey the orders that he is seeking relief against it.  He has therefore come to court with unclean hands.  The court cannot exercise discretion in favour of such a litigant who has no respect for the rule of law” (own emphasis).

23. The Applicant cannot approach this court seeking to stay orders which he has never obeyed. That amounts to an abuse of court process.

24. I find no valid grounds to stay the orders made on 17^th September 2019. The welfare of the child is paramount consideration and cannot be stayed, as this would be detrimental to the welfare of the minor.

25. I am fortified in this finding by the decision of my learned brother Hon. Justice William Musyoka who is in the case of ZM v EIM [2013] eKLR held as follow:-

 “As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same”. (Own emphasis)

26. Regarding the prayer to file the Appeal out of time I find that the Applicant has a right to appeal. The Respondent will suffer no prejudice if this prayer is allowed as he is accorded the right to oppose the appeal if she so wishes. I therefore grant the Applicant leave to file his appeal out of time.

27. Finally, and in conclusion this court makes the following orders:-

(1) The prayer seeking a stay of the orders made on 7^th October 2019 is declined.

(2) For avoidance of doubt the orders requiring the Applicant to pay Kshs 50,000 as monthly maintenance of the minor remain valid and enforceable.

(3) The Applicant is hereby granted leave to file his appeal out of time.

(4) The said Appeal to be filed and served within twenty one (21) days of the date of this Ruling.

(5) This being a family matter each side will pay its own costs.

Dated in Nairobi this 18^th day of March 2022.

........................................

MAUREEN A. ODERO

JUDGE