EGK v LN (Family Appeal E101 of 2021)  KEHC 13360 (KLR) (Family) (30 September 2022) (Ruling)
Neutral citation:  KEHC 13360 (KLR)
Republic of Kenya
Family Appeal E101 of 2021
MA Odero, J
September 30, 2022
1.Before this court for determination is the notice of motion application dated February 10, 2022 by which the applicant EGK seeks the following orders:-
2.The application was premised upon order 42 rule 6, order 51 of the Civil Procedure Rules 2010, sections 1A, 1B, and 3A of the Civil Procedure Act and all enabling provisions of the law was supported by the affidavit of even date sworn by the applicant.
3.The respondent LN filed grounds of opposition dated March 10, 2022. The matter was canvassed by way of written submissions. The applicant filed the written submissions dated May 25, 2022 whilst the respondent filed upon her written submissions dated June 7, 2022.
4.This appeal and application emanate from the judgment delivered on August 27, 2021 by Hon F Terer resident magistrate in Nairobi Children Case No Exxx of 2021: LN – vs EGK. In that judgment the learned trial magistrate made the following orders.3.That parental responsibility between the parties is apportioned as follows:-
Plaintiffa.50% of rent – Kshs 30,000.00b.50% of Food – 25,000,000.00c.Utilities (water and electricity; andd.House help
Defendanta.School fees and school related expensesb.Months contribution towards upkeep at the rate of Kshs 25,000; payable on or before 10th day of every month effective September 10, 2021.c.50% of rent 30,000.00d.Medical4.That each party to bear his/her own costs.'
5.Following delivery of the judgment in which the applicant was ordered to pay 50% of the rent and to contribute 50% towards the costs for the minor’s food, the applicant filed in the children court the application dated September 16, 2022, seeking a partial stay of the judgment.
6.On January 28, 2022, the trial magistrate dismissed the application for stay. The appellant then filed the memorandum of appeal dated September 15, 2021. Contemporaneously with said memorandum of appeal, the applicant filed this present application seeking a partial stay of the judgment of the children’s court pending the hearing and determination of his appeal.
7.The applicant is aggrieved by the orders requiring him to pay 50% of the respondents rent and to contribute 50% towards the food expenses for the minors. He submits that the trial court did not properly address the issue of stay.
8.That in coming to his decision the trial court did not appreciate the fact that the applicant is already fully meeting the costs for the minors medical and educational expenses amounting to approximately Kshs 200,000. That if the stay prayed for is not granted the applicant stands to suffer substantial loss. The applicant prays that the court grant an order for partial stay of execution of the judgment delivered on August 27, 2021 and make an order for status quo ante that date allowing the applicant to continue remitting a sum of Kshs 20,000 monthly as maintenance.
9.The application was opposed by the respondent who submitted that the applicant has failed to comply with the orders of the lower court and therefore does not deserve audience before the High Court as he is in active contempt of court orders.
10.The respondent submits that the applicant has the financial capacity to comply with the orders of maintenance made by the lower court. That a stay would not be in the best interest of the minors as the minors would starve if the maintenance was stayed. She urges that this court dismiss the present application with costs.
Analysis and determination
11.I have considered the application before this court, the grounds of opposition filed in reply thereto, the written submissions filed by both parties. The applicant is seeking a partial stay of the judgment delivered by the trial court on August 27, 2021. He prays that the court order that he pay Kshs 20,000 monthly towards the maintenance of the minors which was the position ante August 27, 2021.
12.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 stay is not granted.(c)The applicant has provided security for the due performance of the decree.
13.In this case the judgment in issue was delivered on August 27, 2021. The present application was filed on February 10, 2022, six (6) months after delivery of said judgment. The application therefore cannot be said to have been filed without unreasonable delay. If the applicant was aggrieved why did he not approach court sooner.
14.The impugned orders were made in relation to the maintenance and upkeep of a minors. It is trite law that in matters concerning the welfare of children courts are required to give priority to the best of the child.
15.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.'
16.Likewise Children Act at section 4(2) provides as follows:-
17.In the case of Bhutt vs Bhutt – Mombasa HCCC No 8 of 2014, the court held as follows:-
18.The parties herein are the biological parents of the minors in question. Actual custody of the minors was granted to the respondent (mother) with the applicant being allowed regular access to the minors. The trial court additionally made orders regarding maintenance of the minors through payment of rent and provision of the minors food.
19.The respondent has alleged that the applicant has failed to comply with the orders made by the trial court and is therefore in active contempt of court and does not deserve a hearing before this court. The applicant has not denied the allegation that he has failed to comply with the orders made by the trial court.
20.The applicant cannot come to court seeking a stay of orders, which he has in any event disobeyed. It is trite that courts do not make orders in vain. A person to whom a court order is directed is obliged to obey said order however unpalatable it may be, unless or until the same is reviewed and/or set aside. The trial court heard from both parties before delivering the judgment of August 27, 2021.
21.In the case of Hadkinson – Hadkinson  ALL ER it was held:-
22.Nearer home, in the case of Econet Wireless Kenya Ltd – vs – Minister For Information Of Kenya & Another  eKLR, the court relying on the decision of the Court of Appeal in Gillab Chand Pupatlal Shah & another – vs - Civil Application No 39 of 1990 stated that:-
23.Finally, on the point in Teachers Service Commission – vs – Kenya Union Of Teachers & 2 Others  eKLR the court stated as follows:-
24.I am in agreement with the respondent that having disobeyed the orders made by the trial court, the applicant does not merit the exercise of this courts discretion in his favour. Moreover, it is pertinent that the orders made relate to the welfare of minors. It cannot be in the interests of the minors to have orders relating to provision of their accommodation and food stayed.
25.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.
26.In the case of MN – vs – TAN & another  eKLR a case which is on all fours with the present case the court held as follows:-
27.The applicant cannot approach this court seeking to stay orders which he has not fully obeyed. That amounts to an abuse of court process.
28.I find no valid grounds to stay the orders made on August 27, 2021. The welfare of the children is paramount consideration and cannot be stayed, as this would be detrimental to the welfare of the said children.
29.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  eKLR held as follow:-
30.All in all I find no merit in this application for stay of execution. The notice of motion dated February 10, 2022 is dismissed in its entirety. For avoidance of doubt the orders of August 27, 2021 made by the Nairobi Children’s Court in Case No Exxx OF 2021 remain valid and enforceable. This being a family matter I make no orders on costs.
DATED IN NAIROBI THIS 30TH DAY OF SEPTEMBER 2022.…………………………………..MAUREEN A ODEROJUDGE