REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY MISCELLANEOUS NO E017 OF 2021

NICKSON JUMA NYONGESA................................................................RESPONDENT  

VERSUS

MARY NAMALWA WANJALLA ..............................................................DEFENDANT  

RULING

1.   Vide  Tononoka  children’s  case No 145 of 2016, Mary Namalwa  Nyongesa  (hereinafter  the respondent) filed a suit against  Nickson  Juma Nyongesa  (hereinafter  the applicant)  on  25^th  April, 2016 seeking  actual custody  of their  children; declaration that the  respondent  has  a parental responsibility over their children; periodic financial support as maintenance for the  children;  payment of  school fees; medical expenses  and,  the  applicant be  restrained from removing the children subject  of this case from her  custody.

2.   In response, the respondent filed defence and subsequently had the matter heard through viva voce evidence.  After hearing  evidence from  both parties,  the  court  delivered its judgment  on 19^th October, 2016 thus ordering  the  applicant /defendant  to;

a.   Pay school fees directly to the school which shall be mutually agreed by parties.

b.   Defendant /applicant  to cater for  school  fees related  expenses  for  term one of  2017 and  thereafter , the  plaintiff to  cater for the same.

c.   The defendant shall cater for medical expenses as when need may arise.

d.   The  defendant to contribute  ksh 4,500 payable to the  plaintiff  on  or before the  5^th day of every month

e.   The plaintiff (respondent) to cater for the needs that the children may require from time to time.

3.   Thereafter, various  exparte  applications   among them  a notice to show cause and  attachment  of the  applicant’s  salary were  made on  grounds that  the  applicant had defaulted in meeting his financial obligations. Subsequently, an order for attachment of the appellant’s salary at kshs18, 479 every month was made on 29^th April 2021.

4.   Aggrieved by the said order, the applicant filed a notice of motion before the trial court on 11^th May, 2021 seeking stay of execution but failed to secure the orders as the court certified it urgent and gave a hearing date.

5.   Consequently, the applicant moved to this court vide  a  Chamber Summons dated 24^th  May, 2021 seeking stay of execution of the order of attachment of his salary pending  hearing and  determination of the  application interpartes; leave  to appeal  against the   salary attachment order made on 28^th April, 2021 and that  leave to  operate  as stay.

6.   The application is anchored on the grounds outlined on the face of it and averments contained in  the affidavit in  support sworn on  24^th May, 2021  stating that  the  respondent has  persistently neglected the  children by  abandoning them under the care of her  sister and also by refusing to stay  in their village matrimonial house.

7.   That the respondent has unilaterally obtained court orders thus varying the judgment against him. He lamented that at the instigation of the respondent, the trial court issued orders of arrest against him despite deduction of his salary from the source.

8.   He further stated that the attachment order for a sum of 18,421 against a sum of kshs7, 800 agreed upon by consent was contrary to the judgment. That if the adjusted amount is not stayed, the other six children and their mother will suffer.

9.   In response, the respondent filed a replying affidavit stating that the application culminating to the impugned order was duly served upon the applicant who chose to ignore the same hence the exparte orders. That the application amounts to an abuse of the court process as a similar application filed before the lower court is still pending.

10. She deponed that the orders for attachment of the appellant’s salary were made after he paid the amount directed for three months and then defaulted in paying school fees.

11. When the matter came up for hearing, parties agreed to file submissions in canvassing the same.

Applicant’s submissions

12.  Through the firm of Mwawasi and company advocates, the applicant filed his submissions on 12th July, 2012, reiterating the content contained in the affidavit in support of the application. It was submitted that the appellant was condemned unheard as the application giving rise to the impugned orders was not served upon him nor was any evidence tabled to prove service.

13.  He averred that the orders made sometime in March, 2019, 13^th July 2020 and 19^th August 2020, were all addressed to the principal secretary DOD directing attachment of his salary were made exparte. That there was no justification made to warrant the upward adjustment of the already attached salary.

14.  Counsel submitted that failure by the respondent to serve the applicant with the application leading to the attachment of his salary at kshs18, 611 was against the principles of natural justice. In support of this proposition, counsel made  reference to the  holding in the case of  Joseph Lekamano &248 others  vs African  Welfare  Foundation  & 4 others  (2017) e KLR

Respondent’s submissions.

15. Mr Obonyo advocate appearing for the respondent filed his submissions on 3^rd November, 2021 also adopting the averments contained in the affidavit in reply. Learned counsel dismissed claims of non-service of the applications leading to the salary attachment orders. Mr Obonyo contended that the respondent is a victim of his failures by refusing to honour court orders and also running into arrears of maintenance expenses.

16. It was counsel’s submission that the application herein amounts to an abuse of the court process as a similar application was filed before the lower court and the same is pending to date. In his view, the applicant is forum shopping courts in search of a favourable order. In that  regard, counsel  referred to the  holding  in the  case of JGK V FWK(2009) e KLR in  which the court  castigated parties who  engage in  forum shopping.

17.  Regarding service of the application, counsel referred to order 5 rule 19 which empowers service upon a serving soldier to be made through his employer or commanding officer.  That in  any  event, during the  occurrence of these  events,  the  respondent  was  acting in person  and therefore  a lay person  who cannot  be blamed for  not acting to the  required standard. To support this position, reliance was placed in the  case of  Anthony Mlolo Mutio vs Blue  Marlin Beach  Resort  Ltd ( 2014) e KLR  where  the court held that a lay   person cannot be  held to  the  same standard as high as  an  advocate.

18.  Further, Mr Obonyo contended that the respondent having tried to serve the applicant in vain, she had no choice but to serve him through the employer. That by10^th March, 2019 the arrears accruing since 2016 were over kshs55, 000 hence the recovery proceedings by way of attaching the appellant’s salary.

Determination.

19.  The application before me is seeking stay of execution orders against the orders made on 29^th April, 2021. It is also seeking leave to appeal out of time.

20.   I have considered the application herein together with the affidavit in support. I have also considered the responses thereto plus oral submissions by both parties.  Issues that emerge  for  determination are;

a.   Whether the applicant has met the threshold for grant of stay orders.

b.   Whether the application was filed without inordinate delay.

21.  The law governing stay of execution orders is anchored under order 42 rule 6 (2) of the Civil Procedure Rules. Before stay orders can issue, it is incumbent upon the applicant to prove that; he is likely to suffer substantial loss in the event that orders sought do not issue; the application has been filed without inordinate delay and that security for the due performance  of the  decree has  been  deposited.; See  Carter and  Sons Ltd vs Deposit  Protection  Fund Board  and 2 others  C A No. 291 of 1997

22.  It is  trite law that  issuance of stay of execution  orders is at the  discretion of the  presiding judge  or magistrate  depending on the  merits of the individual case  without losing  sight of the  fact that a stay  order is  intended  to  preserve the    purpose of an appeal. This position was succinctly held in the case of  Butt vs Rent Restriction Tribunal  Nairobi Civil Appeal No 6/1979 and  Shell Ltd vs Kibiru and another  (1986) e KLR

23.   In the instant case, the applicant is claiming that the impugned orders have substantially altered the substratum of the appeal thereby unilaterally raising the amount payable as financial support for the children from Kshs 7,800 per month to kshs18, 511. On the other hand, the respondent stated that the   extra amount of Kshs 10, 000 above the kshs7, 800 is also as a result of accrued arrears amounting to Kshs 55,000 which money the applicant has been reluctant to pay.

24.  According to the applicant, the exparte orders were made without him being served hence a violation of constitutional rights of being condemned unheard. However, to counter that assertion, the respondent contended that the appellant was elusive whenever he was being sought to effect service hence service had to be effected through his employer (commanding officer) in accordance with the law.

25. The dispute over service notwithstanding, the respondent did not tell the court what substantial loss he will suffer that cannot be compensated monetarily. If the amount complained of is paid  and  the  appeal succeeds, it shall be  recoverable by  paying  less the  amount he  could have  lost  by  virtue of that order. Proof of likelihood to suffer substantial loss is the corner stone for grant of stay orders. See James Wangalwa and another vs Agnes Naliaka  Chesato ( 2012) e KLR.

26.   Assuming for a moment that the court was to grant the order of stay, what will happen to the children’s needs which cannot wait? Obviously, the children must eat, go to school and enjoy other basic requirements that the financial support was intended to achieve. All those needs cannot be suspended unless under exceptional circumstances.

27.  In the case of  KKPM Vs SWW ( 2019 ) e KLR the court had this caution to make when dealing with an application for stay of execution touching on the welfare of children;

“I agree that where the duty to maintain a child is imposed on  a parent by  statute, it is  not in the best interest of the  child to suspend  a maintenance  order particularly where parentage is not  in  dispute and that an  expedited hearing of the  appeal  might be  a solution  where  there is  a challenge  on  quantum of   maintenance   rather than staying the  orders of the trial court’’

28.   I am in agreement with the above holding that except in exceptional circumstances, orders for child support should not as a matter of course be suspended from implementation. The best interests of the child being vulnerable persons must always reign and triumph over and above those of their parents. In the circumstances, and, in view of the above holding, I don’t find it prudent to issue stay orders.

29.  Regarding the question whether the   application was filed within reasonable time, one would have to look at the time the impugned ruling was made which is 29^th April, 2021 and the instant application filed in 25^th May, 2021. Accordingly, the application was filed within reasonable time.

30.   As regards filing similar application before the lower court, it amounts to  an  abuse of the  court process  although  nothing would have stopped  him  from filing another application after losing  a similar  one before the  lower court.

31.  I do not wish to  delve  into the  merits of the  appeal which is  anchored on failure to effect service  of the application giving  rise to  the  impugned  orders. These issues will be dealt with during the hearing of the appeal. Accordingly, I do not find any merit in the application for stay hence the same is dismissed with no order as to costs.

DATED SINGED AND DELIVERED VIRTUALLY AT MOMBAS THIS 18TH DAY OF MARCH, 2022.

J. N. ONYIEGO

JUDGE