F M K v M O A [2017] KEHC 9528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY AND PROBATE DIVISION

CIVIL APPEAL NO. 67 OF 2017

F M K………….APPELLANT

VERSUS

M O A…………RESPONDENT

(Being an appeal filed against the ruling delivered in Nairobi Children Case No. 1055 of 2016 on 8th September 2017 and 11th September 2017)

RULING

1. The application for determination is a Motion dated 13th September 2017. It seeks stay of the proceedings before the lower court, and that the lower court file be called for to determine the legality of the proceedings being conducted in that matter. The interlocutory application is mounted within an appeal filed herein vide a memorandum of appeal dated 12th September 2017 and lodged herein on even date, which seeks that the decision of the lower court delivered on 6th September 2017 be set aside, or, in the alternative the order be varied with regard to the access hours. The gravamen of the application is that the lower court erred in allowing the respondent access to the child the subject of the proceedings, yet he had literally abandoned them and provided no maintenance to them.

2. In reply to the application, the respondent avers that he never lived with the appellant and therefore the issue of his walking away from the minors and parental responsibility does not arise. He pleads that the appellant has used all manner of machinations to ensure that the respondent was not able to access the child nor to offer or provide any sort of support.

3. The application was urged orally before me on 21st September 2017. The appellant pleaded that paternity was not disputed, but the respondent had never lived with the children, nor even seen them. It was argued that access should be a gradual process. The respondent on his part argued that the appellant had refused to comply with court orders on access.

4. It is not in dispute that the respondent is the biological parent of the children in question. He has a right to access the children, and a duty to be available to them. The children too have a right to have access to their father. The issue as to whether he provides for them or not should be immaterial to the question of access. In any event, the cause at the lower court is still alive, indeed there is a hearing scheduled for 15th November 2017. The issues are still alive for determination by the lower court. I am not persuaded that a cause has been made out for grant of the orders sought. It is my finding that the application dated 13th September 2017 is without merit, and I hereby dismiss the same with costs.  The lower court file to be returned to that court forthwith.

DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF NOVEMBER, 2017.

W. MUSYOKA

JUDGE