1.This application dated 29th December 2021 is brought under Section 1A & 1B of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules seeking for orders for stay of execution of the ruling delivered on 2nd December 2021 in Nyeri Children’s Case No. 11 of 2016 pending the hearing and determination of the appeal. The applicant further seeks that the court orders the respondent to continue complying with the judgment delivered on 19th August 2016 pending the hearing and determination of the appeal.
2.In opposition to the application, the respondent filed a Replying Affidavit dated 27th January 2022. The applicant thereafter filed two Supplementary Affidavits dated 29th March and 22nd April 2022 which are titled Replying Affidavit.
3.The applicant states that judgment was delivered on 19th August 2016 granting the applicant physical and legal custody of the minors with unlimited access to the respondent during weekends, school holidays, visiting and parents days. The applicant was ordered to provide shelter and pay for all the utility bills whereas the respondent was to cater for school fees and all school related expenses. The parties were to share the clothing expenses by providing Kshs 7,500/- each after every four months or Kshs. 1,875/- each month. The parties were also to share food expenses of Kshs. 10,600/- during the months the minors are on school holidays.
4.The applicant contends that the respondent breached the terms of the judgment by failing to pay a sum of Kshs. 283,300/- towards school fees and school related expenses. Consequently, the applicant states that she took out a Notice to Show Cause. The respondent thereafter filed an application dated 15th September 2021 seeking to stay execution of the Notice to Show Cause and revise the non-existent orders of 31st August 2016.
5.The applicant further states that both the Notice to Show Cause and the application were heard simultaneously and a ruling delivered on 2nd December 2021. The applicant states that the ruling reapportioned parental responsibility to her detriment and being aggrieved with the decision she lodged an appeal. She states that as a result, she cannot cater for the extra expense the court has bestowed on her. As such, she prays that the application be allowed as prayed.
The Respondent’s Case
6.The respondent concedes that he owes the applicant a sum of Kshs. 270,000/- however he states that the court directed that the same be paid in equal instalments of Kshs. 6,000/-, which order the respondent is complying with. He further states that he has a wife and two children that he maintains and his wife is a housewife making him the sole breadwinner.
7.The respondent contends that he is obligated to pay school fees for the minors which he is doing. He avers that the applicant has not disclosed any tangible reason to warrant a revision on how the sums owed to her ought to be paid nor has she demonstrated that the same has occasioned her any loss. The respondent states that the applicant is only required to cater for academic accessories, shopping, clothes and transport, which is advantageous to her. Moreover, the respondent contends that the applicant did not consult him before taking the minors to expensive schools. He avers that this move was ill motivated to serve as a punishment to him for their failed relationship. Further, the applicant is not welcoming of the idea of transferring the minor to an affordable school as directed by the court.
8.The respondent avers that the applicant is a person of means as she is a nurse and is likely she is earning more than him. In that regard, they ought to share parental responsibility. Moreover, the respondent contends that the applicant has not enclosed herein recent payslips to demonstrate that she is not in a position to sustain the ruling on the modification of the judgment. Furthermore, the respondent contends that he filed an application to have the judgment modified and the court partially allowed the same. Moreover, one of the minors has already attained the age of majority and thus the court directed that he only cater for her academic expenses. The respondent avers that the applicant is trying to run away from her parental responsibilities without any justifiable reason. He further contends that the applicant wants to retain the position of being a person of a low income earner which is not the case.
9.The applicant filed two supplementary affidavits and states that the respondent did not provide any documentary evidence to show that he is married with other children. Moreover, the applicant states that she relies on her monthly salary as her source of income and she complied with the orders of 19th August 2016 and should not be made to pay for the mistakes of the respondent.
10.The applicant contends that in the interests of justice, the court allows the stay of execution of the ruling as the minors will be prejudiced as the respondent does not have their interests at heart.
11.The applicant further contends that her salary is paid by the County Government of Laikipia part of which is servicing a loan taken in 2016 to build her residential house instead of paying rent. The applicant further contends that she is not able to meet the financial obligations given in the ruling of 2nd December 2021 which includes shelter and utilities, food, clothing, medical care, school accessories, transport, pocket money, college accommodation of one of the minors amounting to Kshs. 46,000/- per year and provide food and maintenance for the child in college.
12.I have perused the affidavit dated 22nd April 2022 and note that it is repetitive of the earlier affidavits and contains sentiments that do not relate to the minors but the parties relationship which is not the subject at trial here.
13.Parties hereby disposed of the application by way of written submissions.
The Applicant’s Submissions
14.The applicant relies on the case of Butt vs Rent Restriction Tribunal  KLR 417 and submits that the court should exercise its discretion in a way not to prevent the appeal. The applicant further makes reference to Article 53 (1) (e) of the Constitution and submits that the parental responsibility as re-apportioned has occasioned her hardship and she is not in a position to meet the children’s requirements. Further, the applicant contends that the respondent owes her a substantial amount of money resulting from the non-compliance of the judgment delivered on 19th August 2016. The applicant further contends that she has a loan she is servicing sourced for building the house she lives in.
15.The applicant submits that the orders that were reviewed are non-existent as the respondent does not have another family he is supporting.
16.The applicant submits that the application has been filed timeously as the ruling was delivered on 2nd December 2021 and she filed her application for stay on 29th December 2021. On the issue of security of costs, the applicant submits that she is ready and willing to abide by the conditions the court may impose as a condition for the grant of the orders sought.
The Respondent’s Submissions
17.The respondent relies on the case of C.M vs S.W.A (2019) eKLR and submits that one of the minors has attained the age of majority and therefore she can seek employment and cater for her own basic needs and entertainment. Furthermore, the respondent states that since the child is a government sponsored student she ought to apply for Higher Education Loans Board (HELB) to offset her academic school fees.
18.The respondent further submits that the applicant is a nurse at [Particulars Withheld] Level 5 Hospital and is therefore a person of means. Furthermore, the respondent contends that she has not enclosed her current pay slip to back up her allegations of servicing a loan to build her house. Moreover, since the applicant is a person of means, the respondent submits that the court was right to direct that the parties share parental responsibility equally. The respondent further contends that the parcel of land and the house the applicant is currently residing in is jointly owned by him and the applicant. Thus, the assertion that the applicant is paying rent is ill motivated and a recipe for misleading the court.
19.The respondent relies on the case of Joachim Ndaire Macharia vs Mary Wangare Ndaire & Another Nyeri HCCA No. 63 of 2006 and submits that he has another family who rely solely on him to maintain them. He urges the court to take this fact into consideration. He further contends that the court allow him to continue paying Kshs. 6,000/- to offset the Notice to Show Cause as he has another family that he is maintaining. The respondent makes reference to the cases of A.A.J vs A.A. Suing through M.M  eKLR and Crispus Maghanga Mzae vs Mary Mukhwana Kwansu Mombasa HCCC No. 58 of 2004 and submits that if the court directs more than the said amount of Kshs. 6,000/- together with the school fees, it will land him into financial problems and that is why he could not adhere to the orders in the judgment delivered on 19th August 2016.
20.The respondent states that the trial court was within its purview to review the judgment dated 19th August 2016 because he demonstrated that the applicant is a person of means and the judgment as is was oppressive to him. As such, the respondent relies on the case of Mbogo vs Shah  E.A 93 urges the court to exercise its discretion in upholding the trial court’s ruling as the trial court exercised its discretion judicially. The respondent submits that the application is am abuse of the court process and prays that the same is dismissed.
Issue for determination
21.The main issue for determination herein is whether the applicant has met the prerequisite for grant of stay of execution pending appeal.
Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal.
22.As a rule of thumb, an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-
23.Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1.Substantial loss may result to him/her unless the order is made;2.That the application has been made without unreasonable delay; and3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
24.These principles were enunciated in Butt vs Rent Restriction Tribunal  the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.3.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
25.Beyond the requirements of Order 42, this being a matter concerning children, this Honourable Court is enjoined by the Constitution of Kenya 2010 and the Children Act to consider the best interests of the Children. The Constitution of Kenya 2010 provides at Article 53(2) that:-
26.The Children Act on the other hand provides at Section 4(3) that:
27.As was observed in Bhutt vs Bhutt Mombasa HCCC No.8 of 2014 (OS), 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 interests of the child in accordance with Article 53 (2) of the constitution which provides:-
29.Having said that, we shall examine whether the applicant in the case herein has satisfied the above-discussed conditions.
30.Under this head, an applicant must clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of Shell Ltd vs Kibiru and Another  KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows:-
31.The learned judge continued to observe that:-
32.Earlier on, Hancox JA in his ruling observed that:-
33.The applicant states in her affidavit that since the ruling reapportioning parental responsibility she has suffered substantial loss because she cannot meet the children’s requirements as directed by the court. She further submits that the respondent owes her a substantial amount of money arising from the non-compliance of the judgment of 19th August 2016. She further states that the respondent does not have another family and thus he should be liable to cater for the children’s needs as directed by the court on 19th August 2016. Notably, the applicant has stated what substantial loss may occur to her if the stay orders are not granted. However as noted earlier, the best interests of the child are more paramount than that of the parties. The children’s interests supersede those of the parties as was enunciated in the case of C.K.K vs C.M.M.  eKLR where the Judge stated:
34.Likewise, in the instant case, it is the children and not the applicant who stands to suffer substantial loss if the orders sought are not granted. The rights of the children override the rights of the applicant and the applicant has not demonstrated to this court what substantial loss the children stand to suffer if the orders for stay are not granted. I have also perused the ruling dated 2nd December 2021 and noted that the respondent was ordered to pay Kshs. 286,300/- in equal instalments of Kshs. 6,000/- monthly within 4 years and should the respondent fail to comply with the order, the applicant was at liberty to move the court for attachment of the respondent’s salary. Thus the court was evidently clear that in the event the respondent does not comply with the payments, the applicant could move the court to attach his salary. I have noted that although the applicant states that the respondent is not making the payments, she has not moved the court to attach his salary. This option is still open to the applicant.
The application has been made without unreasonable delay.
35.The ruling herein was delivered on 2nd December 2021. The applicant filed her Memorandum of Appeal on 21st December 2021 and the application herein for stay on 3rd January 2022. I am of the view that the application has been filed timeously.
Security of costs.
38.From the above decisions, it is clear that the issue of security is discretionary and it is upon the court to determine the same. Notably, the applicant has stated that she is ready and willing to abide by any conditions the court may impose as a condition for the grant of the orders sought.
39.Section 76 (2) of the Children Act sets out the general principles with regard to proceedings concerning children. It provides:-
40.I am also persuaded by the decision of Z.M.O. vs E.I.M  eKLR where the court held:-
41.I reiterate that as well as considering the best interests of the children in this application, the applicant has failed to demonstrate substantial loss as noted earlier in this ruling.
42.In the interests of justice and in the best interests of the children herein, I am of the considered view that the appeal herein be expedited.
43.Consequently, I find no merit in this application and it is hereby dismissed.
44.There will be no order as to costs.
45.It is hereby so ordered.