KK v EW [2022] KEHC 12584 (KLR)

KK v EW (Family Appeal 12 of 2020) [2022] KEHC 12584 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12584 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal 12 of 2020

JN Onyiego, J

July 15, 2022

BETWEEN EW .......................................................................................PLAINTIFF VERSUS SKK ...................................................................DEFENDANT AND KK ......................................................................................3RD PARTY

Between

KK

Appellant

and

EW

Respondent

(Being appeal from the judgment/ Order of Honorable L K Sindani ( SRM) in the children case No 90 of 2011 Mombasa delivered on the 29th June 2020)

Judgment

1. Through a plaint dated 9th May 2011, EW suing as guardian and next friend of the children namely; AN , CK and EB, instituted a suit against her estranged husband and father to the said children one SKK seeking orders that;a.A declaration that SKK defendant herein has parental responsibility over all the children herein namely; AN, CK and EB and an order giving that effect.b.A permanent injunction restraining the defendant, his agents, servants and or relatives from selling the properties situated in Portriez ( 1525/VI/XX) Bokole (29XX) Bomu (20XX) and Migadini.c.An order requiring the plaintiff to manage and to collect rents from the tenants of the properties situate at Portriez (1525/VI/XX); Bokole /29XX; Bomu /20XX and Migandini and to use the income towards the maintenance of the children herein.d.Costs of this suit and interest therein at the court rates.e.Any other relief this honorable court may deem fit.

2. The plaintiff’s claim was that she and the defendant contracted a customary marriage in 1988. Out of the said marriage , the couple was blessed with two children namely; CK born on April 26, 1999, and AN born on November 11, 2000. She however stated that she was the biological mother to EB , born on February 6, 1988 implying that the defendant is not the biological father to E whom he nevertheless accepted to take full parental responsibility over.

3. It was averred that due to irreconcilable differences, their marriage hit a rock hence separated sometime November, 2010. That during the subsistence of the said marriage, they acquired the aforestated properties which were developed and therefore generating about kshs 40,000 as rent per month for the benefit of the family in terms of maintenance and paying school fees. She claimed that around March 2011, the defendant appointed an agent to manage the properties, collect rent and then remit the full amount to him (defendant) thus rendering the plaintiff destitute as the source of her income was cut short while the plaintiff withdrew his parental responsibility over the children.

4. Consequently, she filed this suit claiming;a.maintenance - 72,000 p.ab.food - 240,000 p.ac.school fees - 10,000 p.ad.shoes -10,000 p.ae.books -15,000 p.af.clothes - 36,0000 p.ag.transport to school -43,200 p.ah.school uniform - 10,0000 p.ai.others- 24,000total - 472,200

5. In response, the defendant filed his defence and counter claim dated June 6, 2021 claiming that the three properties were his investments to support his 3 wives and children among them the plaintiff and her three children aforementioned. He denied evading his parental responsibility. He averred that the amount claimed was excessive as he was providing for the children’s maintenance and school fees expenses.

6. In his counter claim, he sought custody of his two biological children so as to join the other siblings in Kitui.

7. After canvassing that hearing, the court pronounced itself vide its judgment delivered on November 10, 2014 directing that; the defendant to pay school fees for the children directly to the school; pay maintenance of ksh 30,000, per month; joint legal custody to both parents; actual custody to the plaintiff with unlimited access to the defendant and; that the plaintiff to cater for her own rent and medical expenses when necessary.

8. Despite the court order, the defendant defaulted in honoring the judgment in full thus incurring arrears to the tune of kshs 1,060,000 as at November 15, 2017. Having failed to appear in court to show cause why he could not pay the said outstanding amount, the court issued a warrant of arrest directing his attendance in court on January 10, 2018. Consequently the defendant never turned up and he could not be reached. As a consequence, the court re –issued a warrant of arrest against the defendant.

9. Vide a notice of motion dated August 10, 2018, the plaintiff moved the court for execution of parental responsibility beyond the 18th birthday; an order authorizing her to collect rent from the three properties mentioned above to meet the needs of the children and; that whoever was to obstruct the plaintiff and contravenes the orders once issued and served be liable to arrest and prosecution.

10. The application having not been opposed was allowed as prayed on September 26, 2018. Effectively, the mode of execution of the decree shifted from execution of warrant of arrest against the defendant to attachment of rental income out of the mentioned properties. Subsequently, the defendant filed an application dated October 17, 2018 seeking to stay the orders of September 26, 2018 and an order stoppingOCSChangamwe police station not to arrest him.

11. After hearing both parties, the court delivered its ruling on January 3, 2019 dismissing the application thus reinstating the orders of September 26, 2018.

12. Again videapplication dated January 14, 2019 the defendant sought the court to stay the orders of January 3, 2019. Subsequently, the plaintiff also filed an application dated January 25, 2019 seeking police assistance in execution of the orders of September 26, 2018. From the record, the application was allowed on January 28, 2019. Thereafter, the plaintiff again filed another application dated May 7, 2019 seeking recovery of kshs 1,382,000 being arrears of school fees , and maintenance expenses pursuant to the judgment (decree)and order of September 26, 2018. Unfortunately, despite the court granting several adjournments to ensure the defendant filed a response and submissions to the application, the defendant did not file any response. Accordingly, the application of May 7, 2019 was allowed, as prayed on May 29, 2019.

13. Having hit a dead end in executing the court decree arising from the judgment and order of September 26, 2018, the plaintiff again filed the application dated October 24, 2019 and filed on October 25, 2019 seeking orders to hold one KK in contempt of court orders because he was obstructing execution of the orders of September 26, 2018.

14. The court on its own motion directed for K who was not a party to the suit to be enjoined as party to facilitate execution of the court order and decree. Despite having been served with application of October 24, 2019, the said Kaloki did not turn up nor file response. Again, the defendant and his son K who was collecting rent from the said properties against the court order did not file any response nor turn up in court on December 4, 2019 which was the hearing date. Accordingly, the court allowed the application and a warrant of arrest was issued against the said K a third party. When K was arrested and presented in court, on January 8, 2020, Mr Mokua advocate appearing for him vigorously argued that there was no service effected upon K the 3rd party and that in any event his firm ought to have been served and not his client.

15. After careful consideration of the arguments raised ,the court gave K a benefit of doubt and consequently stayed the execution of the warrant of arrest orders and then gave K 14 days to file and serve a formal application for stay of execution. The plaintiff was also directed to serve the application dated October 24, 2019. Hearing of the two applications was fixed for February 10, 2020.

16. Later, the plaintiff filed another application dated January 17, 2020 seeking that pending the hearing of the application dated October 24, 2019, the defendant be compelled to pay school fees for the children. ByFebruary 10, 2020, the 3rd party had not filed any response to the application dated October 24, 2019 nor his application to stay execution of warrant of arrest against him. For those reasons, the court reinstated the earlier warrant of arrest against the 3rd party.

17. Subsequently, the 3rd party through an application dated February 13, 2020 and filed on February 14, 2020 sought stay order against execution of warrant of arrest arguing that he was not a party to the suit and that he was never informed that he was to be joined as a 3rd party. Although he admitted that he was collecting rent from the said properties, he denied obstructing execution process of the court decree.

18. After arguing the application interpartes, the court delivered its ruling on June 29, 2020 in which it ordered that;a.The warrants of arrest against KK are set aside but the orders of September 26, 2018 to remain in force and the 3rd party herein K is hereby restrained from obstructing any form of execution of the said orders.b.The 3rd party KK is hereby ordered to purge the contempt with immediate effect in default of which warrant of arrest issued on December 4, 2019 be reinstated and thereafter the 3rd party to be committed to civil jail.

19. Dissatisfied with those orders of June 29, 2018, the 3rd party moved to this court. He filed a memorandum of appeal dated July 29, 2020 citing 9 grounds of appeal as follows;a.That the learned magistrate erred in law and in fact in making a finding that the 3rd party /appellant was in contempt of court orders without affording 3rd party a hearing and contrary to the evidence.b.That the leaned magistrate erred in law and fact in roundly enjoining the 3rd party /appellant to the proceedings and failing to appreciate that parental responsibility as envisaged under the law cannot be an excuse for the party to unjustly enrich herself under the guise of executing an alleged monetary decree when in fact the adjudged party had fully met his obligations of parental responsibility.c.That the learned magistrate erred in law and in fact in totally disregarding the evidence tendered by the 3rd party /appellant and the defendant and thus made erroneous orders that fail to meet the ends of justice.d.That the learned magistrate erred in law and in fact in failing to consider the 3rd party /appellant’s fundamental rights to property.e.The learned magistrate erred in law and in fact in shifting burdens to the 3rd party /appellant in total disregard of the law.f.The learned magistrate erred in law and in fact by making a partial ruling in total disregard of the overwhelming evidence on record in favour of the defendant and the 3rd party.g.The learned magistrate erred in law and in fact by consistently ruling against the defendant and the 3rd party without legal basis or merit and contrary to the weight of the evidence on record.h.The learned magistrate erred in law and in fact by granting the plaintiff numerous orders regarding the suit property contrary to the caveats raised and the original judgment by the trial court.i.The learned magistrate erred in law in issuing orders beyond the jurisdiction of the children’s court.

20. When the matter came for directions, parties agreed to argue the appeal orally.

21. Ms Nduku counsel for the appellant argued 5 issues in advancing the appellant’s case. The first issue is whether the appellant was properly enjoined to the proceedings. It was counsel’s submission that the appellant was brought on board through the application for contempt against the defendant in the primary suit; that by the court ordering joinder of the appellant to the proceedings suo moto, it denied the appellant the right to be heard. Secondly, counsel agreed that the appellant is not a party to the children subject of the proceedings hence cannot bear parental responsibility while the parties are alive. Thirdly, learned counsel submitted that the orders purported to have been disobeyed were not served upon the appellant. That in any event, the purported disobeyed order was not intended to punish the appellant.

22. Fourthly, the court order of June 29, 2018 was contrary to the court order of November 10, 2014 and that the application giving rise to the impugned orders was not canvassed on merit. Lastly (5th issue), counsel submitted that the children court has no power to issue an order on management of family property.

23. In reply, the respondent who is appearing in person opposed the appeal. She stated that her husband (defendant) was ordered to maintain and educate the children but refused. She claimed that she was suffering in educating children alone yet there were orders compelling the father to the children to educate them. She contended that the houses in question were joint properties acquired by her and her husband hence the appellant who is her step son has no legal right to circumvent the court order by stopping her from collecting rent from their properties to maintain and educate their children. She stated that K was aware of the court order but has chosen to disobey the same.

24. In her rejoinder, Ms Nduku submitted that the appellant was not served with the court order .She contended that the appellant was ready to obey the court order and that his intention was to collect rent and pay the samme to the respondent.

Determination. 25. I have considered the record and grounds of appeal herein and oral submissions by Ms Nduku for the appellant and the respondent in person.

26. A perusal of the trial court’s record reveals that the judgment delivered on 10th November, 2014 directing the defendant one K to pay school fees for his children and maintenance of Kshs 30,000 per month has never been set aside. An attempt to review and or set aside the same was unsuccessful. Therefore, as it stands, the judgment and decree arising therefrom is valid and subsisting.

27. It is also not in dispute that vide an order made on September 26, 2018 the plaintiff/respondent was directed to collect rent from the three family properties. Equally, parental responsibility over the children beyond their 18th birthday was extended without the court specifying up to when or subject to fulfilment or attainment of what age or obligation.

28. The issues that crystalize for consideration are;a.Whether the appellant was properly enjoined to the proceedings.b.Whether the appellant is liable for contempt.

29. The appellant listed 9 grounds of appeal but argued 5 of them which I have further broken into two. The undisputed facts of this case are that; The appellant is a son to K the defendant from the 1st family (house) while the plaintiff is his step mother; the properties whose rent is being disputed is family property; the appellant is the one managing and collecting rental income from the three properties; the appellant has never remitted rent collected therefrom to the respondent; the respondent has not been able to collect rent from the three properties as directed by the court owing to the appellant’s impediment; the orders extending parental responsibility over the children indefinitely have not been reviewed nor appealed against.

30. The key question is, was the appellant properly enjoined to the proceedings? Was he served and made aware of the impugned court order? did he obey or deliberately disobey the said court order. Joinder of parties is guided by order 1 of the Civil Procedure Rules. Order 1 rule 1 provides that joinder should be permitted of all parties in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist ,whether jointly, severally; or in the alternative, where if such persons brought separate suits; any common question of law or fact would arise.

31. However , I am alive to the fact that under order 1 rule 10 of the Civil Procedure Rules joinder of any party to the proceedings can be done by either party or on the court’s own motion see Lucy Nungari Ngigi and 128 others v National Bank of Kenya 19another (2015) e KLR where Gikonyo J held as follows;“the court may even in its own motion add a party to the suit if such party is necessary for the determination of the real matter in dispute or whose presence is necessary in order to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit”

32. Similar position was held in the case of JMKvsMWW andanother(2015)e KLR where the court made reference to order 1 rule 10 by stating;“commenting on this provision , the learned authors of Sarkar’s Code of Civil Procedure ( 11th ed reprint 2011 Vol 1p 887) stated that;“the section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all the persons necessary for a complete adjudication should be made parties”

33. Before an order for joinder of a party to proceedings is made, the court must be satisfied that the presence of the intended party is necessary for effective adjudication of a matter to completion. In the instant case, the court delivered its judgment on November 10, 2014 against the defendant. The same was not honored fully leading to accumulation of arrears.

34. Frustrated by disobedience or noncompliance to the order, the plaintiff sought to attach rent collected from some of the family properties. These orders were made on September 26, 2018 with a caution or rider that whoever would frustrate execution be found guilty of contempt. To circumvent execution of this order, the defendant decided to appoint his son K (appellant) as a care taker and agent for collection of rent from the same properties. It is this change of tactic by the defendant that K was summoned to show cause why he could not be punished for disobeying a court order.

35. The court after realizing K had been arrested before being heard directed that he be served with the application dated October 24, 2019. It is therefore not in doubt that the appellant was made a party suo moto by the court for the sake of affective execution of the court order. The appellant was a necessary party to the proceedings. It was not necessary that he ought to have been a party from the initial stage because at that stage he was not a necessary party.

36. Without joining him to the proceedings at the execution stage, the order could have been rendered obsolete. For the reasons stated, the joinder by the court was proper and in accordance with the law. As to whether he was condemned unheard, the record will bear witness that he was served and even appeared personally in court through his counsel Mr Mokua. He cannot feign ignorance of the proceedings. In conclusion therefore , it is my finding that the joinder was within the law for purposes of execution.

37. Was the appellant guilty of disobedience of the court order? Before a party can be cited and punished for contempt, the court must be satisfied that the contemnor was made aware of the order alleged to have been disobeyed; the order is un ambiguous and clear, it was served upon and disobeyed and that the disobedience was deliberate. This position has been recited time and again in various judicial precedents inter alia Mutitika v Baharini Farm ( 1982-88) 1 KLR 863, Hadkinson v Hadkinson( 1952) All ER 567 , Christine Wangari Gachege v Elizabeth Evans and 11 others Civil Application No 33/2013}} andWoburn Estate Limited v Management Bashforth ( 2016) e KLR

38. It is trite that court orders are not meant to protect the individual dignity of a Judge or private rights of a litigant but rather to preserve and protect the supremacy of the law and the rule of law.

39. Whether an order of the court is bad or not in the eyes of any party, it must be obeyed until discharged. It is not for the dissatisfied party to choose whether to obey or not to obey it .see Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah and another civil Appeal No 39 of 1990 where the court held that;“a party who knows of an order, whether null or valid , regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors ,or their solicitors could themselves judge whether an order was null or valid; Whether it was regular or irregular; that they should come to the court and not take upon themselves to determine such question... He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed”.

40. In the circumstances of this case, the appellant is arguing that he was not aware of the orders and that it was not served. This is not correct as he did appear personally and through counsel attempting to set aside the orders of September 26, 2018. He cannot be used by his father to evade execution process. The claim that the children court has no power to make orders on family property is misplaced as there is no ownership dispute. An order made by a children court in a civil suit is as good as an order made in an ordinary suit whose execution can stretch as far as attaching any known source of income payable to a judgment debtor including applying for ganrnishee proceedings or attaching any property associated with the judgment debtor.

41. Having held as above and considering the appellant’s admission and or concession that he is willing to obey the court order, I do not find any merit in the appeal. The only remedy is to obey the trial court’s order and if the defendant is dissatisfied with the orders of September 26, 2018 especially their indefinite nature in extending parental responsibility indefinitely, he shall be at liberty to seek review before the trial court. Accordingly, it is my finding that the appeal herein is not merited and same is dismissed with costs to the respondent. Original file be return to the lower court for execution process to continue as contemplated and the applicant to comply.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF JULY, 2022J. N. ONYIEGOJUDGE