J I K v J W [2017] KEHC 9599 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

CIVIL APPEAL NO. 29 OF 2017

J I K………..……………APPELLANT/APPLICANT

VERSUS

J W...……..……………………………RESPONDENT

(Being Appeal against the Ruling of Hon. Gitonga (Senior Resident Magistrate) delivered on 10th April 2017 in the Children’s Court at Nairobi Children Cause No. 613 of 2010)

R U L I N G

1. Before this Court for determination is a Notice of Motion dated 15th June, 2017 and taken out under Sections 3A, 75, 78 79Gand the Civil Procedure Rules and all other enabling Provisions of the Law.  The 1st and 2nd prayers having been spent the Appellant/Applicant now seeks Stay of Execution of the Ruling, order issued by Hon. Gitonga, Senior Resident Magistrate on 10th  of April, 2017 pending the hearing and determination of the appeal, Nairobi HCCA No. 613 of 2010.

2. The application is premised on the grounds that Ruling in this matter was given on 10th April 2017 compelling the Appellant/Applicant to take out a second comprehensive cover in addition to the comprehensive NHIF Cover that befits him as a doctor and also pay a monthly children’s upkeep of Kshs.25,000/= regardless of whether the children are in boarding school, or at home.  That if a stay of execution is not granted the Appellant/Applicant will suffer substantial loss if he continues paying the monthly upkeep, and also takes out a second comprehensive monthly cover.  He will be subjected to double jeopardy and may not recover any funds paid out in the event the appeal is successful.

3. The Appellant/Applicant asserts that his appeal against the said Ruling has overwhelming chances of success and if execution of the said Ruling/Order is not stayed, the aforesaid appeal will be rendered nugatory thereby occasioning loss to the Appellant.

4. The application is supported by the affidavit of J I K, the Appellant/Applicant herein, sworn on even date, in which he reiterates the content in the application.

5. Opposing the application, the Respondent filed a Replying Affidavit on 2nd October, 2017 and averred that the Applicant’s application has been brought in bad faith as it is not in the best interest of the minors subject of these proceedings.  That when the Appellant was ordered by the Judgment delivered on 15th August, 2016 to pay monthly upkeep for the children of Kshs.25,000/= by 5th of every month from September, 2016, and also take out a reasonable Medical Insurance cover above the Mandatory NHIF, he made an application on 5th September 2016 to seek review.

6. The Respondent further averred that in the review the Appellant prayed that he be allowed to be remitting the monthly maintenance of Kshs.25,000/= by the 10th and not the 5th of every month.  The court however declined to grant his prayer that he be allowed to provide for Medical cover under the mandatory NHIF only and instead ordered him to pick a reasonable Medical Insurance cover and issue the Respondent with the card within 60 days from 10th April, 2017.  The Appellant has not complied with the said orders to date.

7. The Respondent asserts that the Applicant does not deserve at all the orders being sought and in any event he has come to court with unclean hands.  That the granting of any of the orders sought by the applicant will greatly prejudice the welfare of the minors.

8. This court having carefully considered the application, the affidavits for and against as well as the respective oral arguments, forms the view that the main issue for determination is whether the Applicant has made out a case to warrant the exercise of this court’s discretion in his favor by granting him the orders of stay of execution sought.

9. The conditions for granting a stay of execution pending appeal are well settled. An order for stay is a discretionary remedy.  The discretion is however, circumscribed by the conditions set out under Order 42, Rule 6of theCivil Procedure Rules.  These are that the application should be made without undue delay; show that substantial loss may be suffered by the applicant unless the order is made and finally that the applicant should offer such security as may be ordered by the court.

10. The orders which the Applicant seeks to stay execution thereof were made on 10th April 2017 while the instant application seeking stay was filed on 15th June 2017, three months after delivery of the said orders. There is no explanation for the delay and this court is not satisfied that the application was made timeously.  The application therefore has not satisfied the first limb of Order 42 Rule 6of theCivil Procedure Rules.

11. On the second limb on substantial loss, Mwera J (as he then was) stated in the case of Adah Nyabok -vs- Uganda Holding Properties Limited (2102), that:

“Demonstrating what substantial loss is likely to be suffered, is the core to granting a stay order pending Appeal”

In Daniel Chebutul Rotich & 2 Others v Emirates Airlines Civil Case No. 368of2001,Musinga, J (as he then was) explained substantial loss in the following terms:

‘...substantial loss” is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum.’

12. In the instant case what this court has been told by the Applicant is that if a stay of execution is not granted he will suffer substantial loss if he continues paying the monthly upkeep, and also takes out a second comprehensive monthly cover.  That this will subject him to double jeopardy and he may not recover any funds paid out in the event the appeal is successful.

13. The Respondent on the other hand states, and it has not been denied by the Applicant, that at the time of instituting the proceedings which culminated in this application, the subject minors enjoyed a comprehensive medical cover besides the mandatory NHIF Cover.  That the Applicant/Appellant unilaterally discontinued the medical cover in the middle of the proceedings.  It is my considered opinion that if the Applicant saw the need to provide the minors with a second cover there before, it has not been demonstrated that the need has since dissipated.

14. It is also not lost on this Court that when the Children’s Court made the said orders, one child was already in boarding school even then, yet when the Applicant applied to the court for review he only sought to vary the date on which the monthly remittances were to be made.  He did not complain about the child in boarding school. The Children’s court considered the welfare of the children and the circumstances of the Applicant in arriving at its decision. In any event the Applicant has not established that this was not the case.

15. The orders that the Applicant seeks to stay relate to children. In law, in any matter concerning children, the best interest of the children is paramount.  See Section 4(3) of the Children Act, which reads as follows:

“(3) All judicial institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that is consistent with adopting a course of action calculated to -

(a)  safeguard and promote the rights and welfare of the child;

(b) conserve and promote the welfare of the child...”

The orders made by the Children’s Court, which are now impugned and which this Court has been invited to stay were made in favor of children and were meant to serve the interests of the said Children.

16. The court also notes that the Applicant has not obeyed the said orders. Court orders have to be obeyed as soon as they are issued and it matters not whether the recipient agrees with them or not.  In  Hadkinson vs. Hadkinson(1952) All ER 567, the court maintained that:

“CourtOrders must be obeyed whether one agrees with them or not. If one does not agree with an order, then he ought to move the court to discharge the same. To blatantly ignore it and expect that the court would turn its eye away is to underestimate and belittle the purpose for which the court is set up”.

This point was emphasized in KanchanbenRamniklal Shah vs. Shamit Shantilal Shah & 6 Others (2010) EKLR by Njagi, J (as he then was) as follows:

“A Court Order is valid and effective from the moment it is made. It is born mature and has no period of infancy, and therefore commands obedience forthwith.”

17. A litigant who refuses to obey court orders has shown that he will not submit himself to the Jurisdiction of the court when it does not suit his purpose.  To blatantly choose to disobey orders made by a Court of competent jurisdiction is to abuse the dignity of the court, and to have no regard whatsoever for the rule of law.

18. I call to mind the sentiments of Ibrahim J (as he then was) in Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828, wherein he stated as follows:

“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void”.

These orders having been made by a court of competent jurisdiction, the Applicant who is aggrieved thereby, must first indicate that he has endeavored to comply with them even as he moves the higher court on appeal.

19. In view of the foregoing, this court holds that the circumstances of this case are such that it cannot exercise its jurisdiction to grant the orders sought at this interlocutory stage, for to do so would not serve the best interest of the children herein.

Accordingly, the application is found to have no merit and is dismissed with no orders as to costs.

SIGNED DATEDandDELIVEREDin open court this 3rd day of November, 2017.

…………………………………….

L. A. ACHODE

JUDGE