CM v DN [2022] KEHC 1235 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

FAMILY DIVISION

FAMILY APPEAL NO.23 OF 2018

CM.....APPELLANT/RESPONDENT

VERSUS

DN........RESPONDENT/APPLICANT

(Being an appeal from the judgement of Hon.L.K Sindani in Tononoka Children’s Case No.296 of 2016, delivered on 30th May, 2018)

BETWEEN

DN..........PLAINTIFF

AND

CM......DEFENDANT

RULING

1. The respondent herein moved Tononoka Children’s Court  vide a plaint dated 11th August,2016 seeking  orders as follows; a declaration that both the plaintiff and the defendant have equal parental  responsibility over the issues herein namely; WM and YM ;a residence order do issue in favour of the plaintiff requiring the children to reside with the plaintiff; legal custody, care and control of the children do vest in the plaintiff; the defendant to contribute Kshs 105,700/=per month for the maintenance in respect of the issues herein; the defendant do pay school fees and school related expenses as required from time to time by the children’s learning institutions; an order requiring the defendant to make adequate contribution towards additional medical and educational expenses, as and when the same may arise; costs of the suit and interests therein at court rates.

2. The trial Court delivered its judgement on 30th May,2018  and gave the following orders; both the plaintiff and the defendant have equal parental responsibility to the issues  herein; actual/physical custody to vest in the plaintiff with unlimited access to the defendant on alternate weekends and during half of the school  holidays; legal custody to vest in both parents; the plaintiff to provide shelter for the children ;the defendant to provide school fees directly to the children’s school and meet all the school related expenses directly to the school from time to time in the current school or in a mutually agreed on school from time to time ;the children to remain under both party’s medical cover and the defendant to meet any extra medical expenses as and when it may arise from time to time; parties to share monthly maintenance of food and upkeep at a ratio of 70: and 30 as against the defendant and the plaintiff respectively thus the defendant to contribute Kshs 45,500 /- per month payable to the plaintiff on or before the 5th day of every month; each party to provide for entertainment while with the children; clothing to be provided by both the plaintiff and the defendant  at 50:50 in any event not less than twice a year.

3. The appellant herein dissatisfied with the judgement of the lower court filed this appeal which was canvassed by way of written submissions. This honourable court rendered itself in its judgement delivered on 17th July, 2020 setting aside the order of contribution by substituting it with the order that the appellant be paying the respondent a sum of Kshs 30,000 every month being his contribution towards the upkeep of the children. The court however sustained the other orders of the trial court.

4. The respondent later filed an application for contempt of court orders citing the appellant for disobeying a court order. After hearing the application, the court issued orders on the same through its ruling delivered on 24th September, 2021 thus finding the appellant guilty of contempt of court. The court gave the appellant 30 days to clear the outstanding school fees and related expenses plus maintenance expenses in default to pay a fine of Kshs 100,000 or serve 30 days.

5. Despite disobedience of the said court orders and issuance of several warrants of arrest, the respondent could not be arrested. Consequently, the applicant moved this honourable court through a Notice of Motion dated 22nd December 2021 and filed on 23rd December,2021, seeking the following orders;

a. Spent

b. That the honourable court allows execution of the decree herein by sale of immovable property belonging to the respondent (appellant) i.e. THIKA MUNICIPALITY BLK xx/xxx and give an early date for the NTSC.

c. That the costs of the application be provided for.

6. The application is premised on the grounds thereof stated and the supporting affidavit of DN sworn on 23rd December, 2021. It’s the respondent’s/applicant’s argument that the appellant/respondent has continued to defy the orders of the court despite being a person of means. That as a result there are warrants of arrest in force but he has evaded execution all through.

7. The respondent/applicant further argued that the appellant/respondent is in arrears of up to Kshs1,121,258. That the actions of the appellant/respondent continue to prejudice the interests of the minors. The respondent /applicant urged the court to allow the application and issue a date for the NTSC. In response, the appellant /respondent filed a replying affidavit sworn on 24th January, 2022 stating that he is jobless hence unable to pay the amount sought. He further claimed that the amount in arrears is exaggerated by overpricing items Vis-a-Vis the actual expenses incurred and the same should be put to scrutiny.

8.  The appellant/respondent further stated that he was willing to take up responsibilities of taking care of the children and absolve the applicant of any financial obligations on the same if given physical custody of the children.

9. The application was canvassed by way of oral submissions. However, the appellant/respondent’s advocate was absent from court with no explanation and thus there were no submissions on behalf of the appellant/respondent.

10.  The respondent/applicant submitted that she was applying for the attachment and sale of the respondent’s property so as to take care of the insurance cover for the children, school fees and maintenance as she is the only one taking care of the same. She further submitted that the appellant/respondent was a person of means who has deliberately disobeyed a lawful court order.

11.  I have considered the application herein, response thereof and submissions by the respondent/applicant in person. The issue for determination is whether execution of the decree by sale of immovable property belonging to the appellant/respondent known as THIKA MUNICIPALITY BLK xx/xxx should be allowed. This court has the discretion under Order 22 rule 68 to make an order of sale of immovable property in execution of a decree. The same position was reiterated in the case of Data Guard Distributors Limited v Virginia Njeri Kigo & 3 others [2019] eKLRwhere the court in dealing with order 22 rule 68 stated that;

“I have considered these provisions of law and I find that indeed under Rule 68 referred to above, an immovable property may be sold by an order of the court in execution of a decree.  However, this sale must be under the supervision of the court.  The general conduct of a sale would require that, the property be first valued to ascertain whether it is viable to order for a sale taking into account the amount of the decree.”

12.   I have noted from the court’s record that the appellant/respondent was found guilty of contempt of court and as a result a warrant of arrest issued on 2nd December, 2021. It is also the respondent/applicant’s argument that despite the appellant/respondent being found guilty of contempt of court orders he has deliberately refused to surrender to the court.

13.  From the record, the sale of the subject property has also not been disputed. However, I have noted that the respondent/applicant has not produced any documentation to prove ownership of the subject property and/or whether the same has any encumbrances. A court can not authorize sale of property belonging to a judgement debtor without doing valuation first and then attach ownership documents. She should have at least filed a copy of title deed and a search.

14.  I must however caution that the appellant/respondent has no right of audience to address the court in any manner before purging the contempt orders by surrendering himself to the court for execution of the orders in force.

15.  In view of the above, it’s my finding that this application lacks merit and is incapable of implementation hence dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 18TH DAY OF MARCH, 2022

J.N.ONYIEGO

JUDGE