E W R v L W M [2016] KEHC 3800 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER67 OF 2013

EW R....................... APPELLANT

Versus­

L W M .................RESPONDENT

(Being Arisingfrom the ruling and Order of hon. M.A. Otindo, SRM, delivered on the 22ndApril 2013 in Nakuru Children Case No. 214 of 2012­ Nakuru)

JUDGMENT

1.  This appeal is from the ruling delivered on the 22nd  April 2013 in Nakuru Children's Court Case No 214 of 2012.

It was ordered:

1.  That the application   to lift the warrants of arrest issued against the  Defendant, E W  R,  be  and is  hereby disallowed.

2.  That the  Warrants  of arrest  herein  to remain  in force  until theDefendant presentshimself in person before this court.

Being  dissatisfied  with   the  said  orders,  the  appellant   E W R filed this appeal and preferred the following grounds:

1. The Learned Magistrate erred in law and in fact in finding that the Appellant had not purged the contempt.

2.  The Learned Magistrate erred in law and in fact in declining to lift the warrants of arrest issued against the Appellant.

3. The learned Magistrate erred in law and in fact in failing to find that the Respondent has substantially complied with the court order.

4. The Learned Magistrate erred in law in failing to find that  the said warrants were issued using wrong  provisions of the law.

5. The   learned   Magistrate   erred   in  law  in  finding   that  the Appellant personal attendance was required for her to lift warrants of arrest.

6. The  Learned  Magistrate  erred  in law and in fact  in failing  to consider the submissions by the Appellant's advocate.

It is proposed that the appeal be allowed and the ruling above be set aside or varied with costs.

2. While the appeal was pending for hearing, the Appellant approached the Court by his  application  dated 1st  June 2013 seeking  an order of stay of execution of the warrants of arrest issued against him on the 5th  October 2012 and all consequential orders therefrom.  He further sought an order to stay proceedings in the Children's Case No. 214 of 2012pending determination of the appeal.

On the 20th  December 2013, the Court (RPV. Wendo, J) granted the said orders.

3. Parties filed written submissions on the appeal and highlighted the same. A brief background leading to this appeal shall suffice. The trial Children's Court was brought by L W M the plaintiff and mother of the minor M W against the appellant alleged to be the father of the minor, though not the biological father, by virtue of the respondents marriage to the appellant and allegedly assumed  parental responsibilities over the minor.

4. The Respondent moved to  court  exparteon  the  27th    September 2012 seeking  maintenance for  the minor  in the sum of  Kshs.110,000/=  per month. The court without hearing the appellant directed that the appellant do deposit his passport in court which would be released to him upon him deposing six months maintenance at Kshs.110,000/= in a joint account of the parties Advocates, as security for his court attendance.  That was not done, and on the 5th   October 2012 the court issued  warrants  of arrest against the appellant.

The appellant, upon being served with the court order deposited a sum of Kshs.604,675/=  as directed.   It  is  on record that the said monies  were released to the Respondent by order of the said Children Court without the appellants consent and involvement as he had not been accorded a hearing.

5.  By an application  dated 30th  January 2013 the appellant  approached the court for an order to set aside the warrants  of arrest issued  on the 17 th October 2012 but the court failed to lift the warrants  of arrest. This is the basis of the appeal.

6.  The appellant  by his  Advocate Mr.  Mukururi submits  that the appellant complied with the court orders and deposited the sum of Kshs.604,675/= as directed that has been released to the Respondent in effect purging the contempt orders.  He submits    that the order of arrest ought to have been lifted as the appellant had been attending court by Advocate who explained the circumstances that led to the appellant not complying with  the court order in time, and tendered an apology.

It is  submitted that although the trial court accepted the apology,  it has insisted that the appellant attend in court in person.

7. The appellant submits that the issue of whether the appellant assumed parental responsibility over the minors maintenance is still pending in the Children's Court for determination.

8.   For the Respondent, Ms. Magana Advocate submitted that under Section24(2)of the Childrens Act,a man automatically acquires parental responsibility over a woman's child once he marries that woman, and once acquired, it remains, permanent and cannot be terminated. She stated that the contested oder issued on the 22nd  April 2013 required personal attendance of the appellant and as he disobeyed the same, the court was right to issue the warrants of arrest, which in her  submission are in force until purged.   She further  submits  that the appellant  failed   to pay the monthly maintenance of Kshs.110,000/= per month. It is her submission that the trial court was being requested to sit on appeal on its  orders to set aside the said arrest orders.   She submits  that  the appellant  complied  with  the court  orders  partially  by payments  of  the deposit of Kshs.604,000/­ but has failed to pay the monthly instalments, a sum of Kshs.3,041,807/= as at June 2014.  It is also stated that the minor is now over 18 years old.

To that, it is  urged that an order be issued  directed  to the appellant  to make good the arrears in maintenance sums pending hearing and determination of the Children's case in the Children's Court.

9.  I have considered the circumstances leading to the appeal hereof together with the pleadings and counsel submissions.

There is  no dispute  that  the appellant  has complied  partially withchildren's court order by payment of deposit for security for his court attendance.That money was without his consent removed to the order of  the the Respondent. It is also not in dispute that the  orders of maintenance to the tune of Kshs.110,000/­ per month were made exparte, and without giving the appellant a chance to   ventilate his defence before the seat of Justice  which is  a fundamental right enshrined  in the Constitution.   See Article 50 of the Constitution 2010.

10. It is on record that the appellant tendered an apology for failure to attend court and pay the sums ordered on time, and that the court acknowledged and accepted the apology but failed to lift the warrants of arrest. It does appear that  the trial Magistrate  required  more from  the appellant  than payment of  the  sums ordered, his  personal attendance in court. The appellants failure to appear in person was disobedience of a lawful court order.   The warrant of arrest was however stayed by this  court pending determination of the appeal.

11. Given the circumstances stated above, the court finds that the ruling dated 22nd   April 2013 subject  of this  appeal was merited.   It  is  true that  the appellant failed to appear before the court in person but his explanation for the failure was accepted as well as the apology.

The court having  accepted the explanation,  it ought   to have lifted  the warrant of arrest.  It had no cause or reason for the failure unless, like I have stated, it had something more, to demand the appellants  personal attendance in court.

If that were so, the court should not have accepted the explanation and the apology.

I find the trial court's instance on the appellants personal appearance in court as unwarranted after it accepted the apology, and the failure to lift the warrant of arrest was not explained sufficiently as the reason given “­­­ overtaken by events” was not expounded.   It   was submitted by the appellants   counsel   that   the   appellant   has  already  left   the   court's jurisdiction, to Germany.

12. The Children's  case is  pending  hearing. There are triable  issues  for determination as raised in the defence, and acknowledged by the respondents  counsel  in her submissions, as to whether or not under the Children's Act a man automatically assumes parental responsibility over the woman's children from other unions.

Until that issue is determined, this court shall stay all orders of execution issued by the trial court against the appellant.

In particular, an order of stay of execution against arrears of maintenance at the rate of Kshs.110,000/=  per month is  stayed pending  hearing  and determination of the Children's Case.

13. The court    further  notes  that    the  sum of  Kshs.604,750/­ ordered as security for the appellant's court attendance was by order of the Children's Court released to the respondent. The trial court erred in ordering release of that money to the appellant as it was not ordered  for maintenance but for “security for appellants   court attendance.” It ought to have been retained during the pendency of the case.  That was in my opinion a misdirection on the part of the Children's Court Magistrate.

14.  For the reasons stated above, the court finds the appeal merited and it is allowed, in the following manner:

1.  That the ruling of the Children's Court dated 22ndApril 2013 is set  aside, and the  Warrants  of arrest  against  the  appellant  are hereby lifted.

2. That the Children's  Court Case No. 214 of 2012shall be listed down for hearing on priority basis and in any   event   within 60 days of this judgment.

3.  That pending  the  hearing  and determination  of the  Children's case, there shall be an order of stay of execution of all orders of maintenance for the minor (now adult) issued against the appellant by the Children's Court.

4.  Each party shall bear its costs of the appeal.

Dated, signed and delivered in open court this 28thday of July 2016

JANETMULWA JUDGE