PK v EMM [2022] KEHC 11620 (KLR)

PK v EMM (Civil Appeal E004 of 2022) [2022] KEHC 11620 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11620 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E004 of 2022

LW Gitari, J

May 16, 2022

Between

PK

Applicant

and

EMM

Respondent

Ruling

1. The parties herein are the biological parents to two minors, IK and SG. Judgment was delivered on 31st August 2021 in Chuka Chief Magistrate’s Court Children’s Case no. E014 of 2021. In the said judgment, the Appellant was ordered to shoulder school fees for the two minors and provide an upkeep of Kshs. 5,000/= per month as well as bear a portion of shelter, clothing, food cost, and emotional and physical care of the minors.

2. Dissatisfied with the said judgment, the Appellant filed an appeal vide a Memorandum of Appeal dated 3rd February 2022 and filed on February 7, 2022.

3. Contemporaneous with filing the Memorandum of Appeal, the Appellant filed an application for stay of execution filed on the like day. The said application forms the subject of this ruling. The prayers sought therein were couched as follows:a.Spent.b.That this Honourable Court be pleased to order that pending the hearing and determination of the application and the Applicant’s appeal, there be a stay of execution of the judgment of Honourable M. Sudi delivered on 11th September 2021 in Principal Magistrate’s Court at Chuka Children Case No. E014 of 2021 and all other consequential orders issued therein.c.That this Honourable Court be pleased to order that pending hearing and determination of this suit, this Honourable Court be pleased to stay execution of warrant of arrest and all consequential orders issued on 1st February 2022 of the Children’s Court pending the inter partes hearing and determination of this case.d.That this Honourable Court be pleased to order that in the alternative, this Honourable Court be pleased to recall the Chuka Children Court Case No. E014 of 2021. e.That the costs of this application be provided for.

4. The application is premised on the grounds on the face of it and supported by the affidavit of applicant sworn on 3rd February 2022. The applicant depones that unless the application is allowed, the Respondent will proceed to execute the judgment of the trial court thus rendering the appeal nugatory. The applicant further depones that the subordinate court erred in issuing warrants of arrest against him despite his alleged compliance with the orders issued against him.

5. The application is opposed by the Respondent vide her Replying Affidavit sworn on February 24, 2022. She deponed that the Appellant only started complying with the court orders after the warrant of arrest was issued. She thus urged this court to dismiss the application and order the Appellant to comply with the orders issued by the trial court in respect of maintenance of the subject minors.

6. The main issues for determination in the present application are whether this court should make an order of stay of:a.The judgment delivered by the subordinate court.b.The warrants of arrest issued against the Appellant.

Analysis a. Stay of execution of judgment 7. The Constitution of Kenya 2010 requires that in all matters concerning children, the best interest of the child shall be of paramount importance. Article 53(2) of provides:“(2). A child’s best interests are of paramount importance in every matter concerning the child.”

8. Section 4(2) and (3)(b) of the Children Act echo the constitutional imperative by providing as follows:“(2). In all actions concerning children whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.(3)All judicial and administrative 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 this is consistent with adopting a course of action calculated to—(a)Safeguard and promote the rights and welfare of the child;(b)and promote the welfare of the child;(c)…”

9. In prayer no. 2 of the present application, the applicant is praying for the stay of execution of a judgment that was issued on 11th September 2021. From the record, there is no such judgment. The judgment by the trial court was delivered on 31st August 2021.

10. It is now trite principle in law that parties are bound by their pleadings. Nevertheless, I note that the parties herein are both not represented by counsel. In addition, the matter relates to children hence their best interests should be considered. Thus, it is my view that this court can invoke the provisions Article 159(2)(d) of the Constitution of Kenya 2010 and conclude that the judgment being referred to in this application is the one dated 31st August 2021. There could be no other judgment that the applicant is challenging as that is the only Judgment relating to this matter.

11. I now move to the substance of the prayer sought under this head. The accepted principle in applications for stay of execution of maintenance orders in children's cases is that the suspension of the maintenance order can never be in the best interests of children. This was the holding of Musyoka J inZ M O v E I M [2013] eKLR where he stated:“As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable.”I am in total agreement with this holding.

12. It follows from the above authority that allowing the stay of execution of the judgment would militate against the best interest of the minors herein who are school-going children. As such, the applicant has not persuaded this court that he is entitled to the prayer No. 2 in the present application. In any case it is averred by the respondent that the applicant started to comply with the order upon warrants of arrest being issued. It means that he has the ability to comply.

b. Stay of execution of warrants of arrest 13. The lower court issued warrants of arrest against the Appellant on 1st February 2022. The court ordered for the Appellant to be committed to civil jail for a period of 30 days unless he pays the arrears due in compliance with the maintenance orders issued by the court.

14. On 8th February 2022, the court noted that the warrant of arrest issued on 1st February 2022 against the Appellant had not been effected. The court made an order to the OCS Chogoria Police Station to effect the same.

15. It is not clear from the record whether the said order has since been effected. I however highly doubt it.

16. The applicant presented himself before this court on 25th April 2022 for the hearing of the present application. Considering the fact that the Appellant is required to provide for the subject minor, it is in the interest of justice that this court lifts the warrants of arrest against him. Committing the applicant in jail will jeopardize his ability to comply with the judgment.

Conclusion 17. For these reasons I find that prayer (2) is without merits and is dismissed. As regards prayer © I order that the execution of the warrant of arrest shall be stayed pending the hearing and determination of this appeal. This is granted on condition that the applicant complies with the Judgment of the trial magistrate pending the outcome of the appeal or further orders of this court.I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MAY 2022. L.W. GITARIJUDGE