Alumasa & 4 others v Shibembe [2022] KEHC 12174 (KLR)

Alumasa & 4 others v Shibembe (Civil Appeal E027 of 2021) [2022] KEHC 12174 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12174 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E027 of 2021

PJO Otieno, J

May 12, 2022

Between

Wilson Luyali Alumasa

1st Appellant

Rodgers Mangala Shivembe

2nd Appellant

Emmanuel Khamasi Saballa

3rd Appellant

Renson Saballa Shibembe

4th Appellant

Allan Saballa Shibembe

5th Appellant

and

Carolyne Shiyombe Shibembe

Respondent

Ruling

1. I have listened to the respondent and her explanation why she did not comply with the orders compelling her to avail the Subject in court. I find the explanation implausible and not candid. I find her to have been in deliberate disobedience of the court order and deserves a punishment. For that, she is convicted for contempt.

2. However, taking into account the relationship between the parties and the uncontroverted assertion by therespondent of a medical condition, I do fine her to pay Kshs 10,000. 00 and in default serve fourteen (14) days in jail.

3. The respondent is reminded that court orders are not suggestions and that the mother, even if old, remains a human being whose wishes and choices must be respected.

4. On costs, the court gives regard to the fact that when the appeal was concluded by consent on the June 30, 2021, there was no award for costs. Where a prayer is made and not expressly granted, it is deemed dismissed. See section 7 explanation 5.

5. The proceedings after the order determining appeal have been consequential and incidental to the conclusion of the appeal. They must abide the determinate order.

6. By failure to award costs when the appeal prayed for such costs, the court declined to award the costs of the appeal to the appellants. No costs are therefore due for award thereafter.

7. In addition and more importantly, this is a family dispute which all, advocates and the court, ought to do everything to help the family regain their fractured relationship. On that basis I direct that each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT, THIS 12TH DAY OF MAY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Majimbo for the 1st AppellantMr. Kamende and Mwinzi for the 2nd – 5th AppellantsMr. Athunga for the RespondentCourt Assistant: Kulubi