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|Case Number:||Civil Appeal 130 of 2011|
|Parties:||JULIUS KIBURE NYANGI v SOPHIA BOKE MACHOGU|
|Date Delivered:||19 Dec 2011|
|Court:||High Court at Kisii|
|Citation:||JULIUS KIBURE NYANGI v SOPHIA BOKE MACHOGU  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. 130 OF 2011
The applicant/appellant moved the court through her application dated 5th October, 2011 seeking the following orders:
2. This Honourable Court be pleased to grant a temporary stay of execution of the Decree of the Subordinate court appealed against herein together with all the consequential orders arising there from which decree is dated 9th June, 2011 pending hearing and determination of this application.
4. Costs of this application be provided…”
a. Maintenance of the issues (sic) for kshs. 10,000 per month.
c. An order of variation of (a) and (b) above and
The suit was heard and determined vide the Judgment of Hon. Temba Sitati (DMII) Kehancha dated 9th June, 2011 and a decree for the attachment of kshs. 7,455 being the defendant’s salary to satisfy the maintenance order.
When the matter came before me, Mr. Kisera in urging the application relied on the grounds set out in the application and the supporting affidavit sworn on the 5th October, 2011 by Julius Kigure Nyangi, the defendant. The grounds are:-
b. The appellant/applicant has an arguable defence which raises triable issues interlia that the trial court was not a gazetted court by the Honourable Chief Justice pursuant to section 73 of the Children Act thereby rendering the entire proceedings, the Decree and any consequential orders therefrom a nullity in law.
d. The respondent is intent on illegally attaching the appellant/ applicant meager salary and if same is allowed then the appeal herein shall be rendered superfluous and spent before hearing and determination
In the supporting affidavit, the appellant states that he is an employee of the department of defence on a net salary of kshs. 13,000/= per month and that attaching kshs. 7,000/= per month in satisfaction of the decree would cause him substantial loss. He further reiterates the ground that the matter should have been heard and determined by a children’s court as may be gazetted by the Hon. Chief Justice in terms of section 73 of the Children Act.
The respondent further submitted extensively on the issue of the rights of the children to wit their right to shelter, education and maintenance as provided for under the Convention on the Rights of the Child, the Constitution (Article 53) and the Children’s Act (Section 3, 4 and 9. She impored the court that such rights override every other interest and that the court should dismiss the application in order that the respondent discharge his duty to the children. She further cited various authorities in support of her proposition that the maintenance ordered by the subordinate court was proper.
From the pleadings and the respective submissions, I find that the issues for determination are:-
ii. Whether or not the consequential order and Decree should be upheld and executed.
I first address the first, second and third issues. The application seeks to stay the execution of the Decree and consequential orders. I have carefully perused the proceedings and judgment of the subordinate court, the present application, the supporting affidavit and the respective oral submissions by the parties. I find that the cause before the subordinate court in Kehancha was one primarily seeking the maintenance of the children as set out in the prayers listed on page one of the Judgment to quote “maintenance of the issues for kshs. 10,000/= per month for upkeep of the issues”. Indeed the Judgment dwells a lot on whether or not the applicant has parental responsibility over the two children. This finding is further supported by the respondent’s oral submissions before me when she time and again emphasized that the application should be dismissed in order that the maintenance of the children be safeguarded and that in the event the court allowed the application, the children would suffer.
“…If a court has no jurisdiction over the subject matter of the litigation, its judgment and orders however precisely certain and technically correct are made nullities and not only voidable, they are void and may be set aside at any time by the court in which they are rendered but declared void by every court in which they may be presented…”.
“…Any Order made without jurisdiction is a nullity and no amount of legal ingenuity can turn that into a valid order. What is a nullity remains a nullity…”.
I turn now to the fourth and critical issue namely the position of the affected children. Having found the judgment and Decree a nullity, I must ask myself a pertinent question. What then happens to the children who are the subject matter of the Decree in question? Should their rights which are guaranteed under the international law, the Constitution and the Children Act fall by the wayside along with the fatally defective Decree? The answer is an emphatic No. This court is seized with original and unlimited jurisdiction under Article 165 3(a) of the Constitution. It also has and exercises supervisory jurisdiction over subordinate court under Article 165 (6) and (7), which provide that:-
For purposes of clause (6) the High Court may call for the record of any proceedings before any subordinate court, person, body or authority referred to in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration of justice…”. (Article 165 (7)).
In exercise of this jurisdiction and the inherent power of the court under section 3A of the Civil Procedure Act, I further make a consequential order and direct that maintenance cause No. 7 of 2010 previously determined by the subordinate court in Kehancha be tried afresh and expeditiously determined by a gazetted magistrate in accordance with section 73(d) (ii) of the Children Act. I make this order pursuant to section 4(3) (a) and (b) of the Act which imposes a duty on this court to safeguard and promote the rights and welfare of the child.
Each party will bear their costs in this application.
Ruling dated, signed and delivered at Kisii this 19th day of December, 2011.