SCK v TA [2014] KEHC 71 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO. 244 OF 2013

S C K................................................................. APPELLANT

VERSUS

T A................................................................. RESPONDENT

RULING

By an application dated 24th January 2014, the appellant seeks  orders of  stay  of  execution  of  the  decree  dated 26/1/2013 arising from  the judgment in  the subordinate court, to  the  extent that the respondent is allowed unsupervised  access  to   the  child  herein  for   half    the period  of  the  school  holidays,  or   alternate  weekends, pending the hearing and determination of the appeal.

The applicant also seeks that the respondent be allowed access to the child or alternate weekends and in the presence of the mother, at all times.

The grounds are that:-

(a) The appellant has lodged an appeal against the judgment which granted the contested orders, as the effect is disruptive to the child’s welfare.

(b) The child is only 4 years old and has been staying with the appellant with    limited access to   the respondent. The argument raised is that, it would not   be   in   the   best interest of the minor to   be separated from his mother for such a long period.

The appellant and respondent are the biological parents of the   child referred to as MRS.     However  the parents have lived  separately since the  year 2010 and formally obtained divorce on  25th October 2013 in  Divorce Cause No.462 of  2011  (Milimani).  The   parties have had a string of protracted tussles regarding the custody, access and maintenance of the child resulting in several interim orders which subsisted pending hearing and determination of the cause. The  appellant deposes in  her supporting affidavit that soon after the  High  Court issued orders in  the  year 2011,  the respondent left  the country, and for  over  two years the  appellant brought up the child single   handedly   until the  year 2013,   when   the respondent got  back to  the country.   The judgment by the trial court granted the appellant custody of the child, with the respondent having the contested access orders.

The  appellant's contention is that, by  ordering the child to shuttle  between the  parents  for   half   of  the  school vacation, the  court did  not  take into account the fact  that the  child is  only  4 years old,  and has always stayed with the  appellant, and the   changes are likely to  disrupt her well- being.    This  concern  is  boosted  by the  fact   that during trial, the   respondent  informed the court that he was  yet  to  find  a permanent place of abode, nor was he in any gainful employment.

The   appellant clarifies that  she  is  not  opposed  to  the respondent spending time  with the   child, but the unsupervised  access,  given   his   past  conduct  when he took  the  child outside the  country, resulting in the court issuing orders for  her  return, is what causes her to  have reservations about unsupervised access.

This fear is further supported by the fact that the respondent retains the child's passport.  The respondent is said to have an Angolan fiancee and that he is likely to settle in Angola.

She offers facilitating the respondent's access to the child every alternate weekend pending hearing of the appeal.

In opposing the application, the respondent has deposed in a replying affidavit the court gave him visitation rights, which the appellant has refused to honour, and even when she was summoned to court to show cause why she'd   not   complied,   she   never   showed   up.    The respondent views the present application as part and an attempt by the appellant to avoid   complying with the court orders.   She is accused of having a history of not obeying court orders relating to visitation, prompting the respondent to move   to court to seek appropriate orders when he sent to her cheques for the child's upkeep as shown by annextures TA2.

The respondent also laments that all his attempt to visit the minor since the year 2013, have been thwarted by appellant.  He avers that he lives in a spacious home in Njoro  with   his   parents.    There is a three bed-roomed separate house for his use where the appellant and the child have stayed in the   past.   The   respondent has no wish for the appellant to be present during the visitations saying on several occasions.....

The respondent's   objection to supervised visits stems from the fact that in the  past visiting, the appellant was accompanied by   her   advocate  and  friend  Mr.   Katwa Kigen  with   a view   to intimidate him and prevent him from enjoying the visitation. On other occasions, she has turned up with   her   relatives and strange men who she claimed were her security people.

The    respondent  points  out    that  no    harm  has  even befallen   the    child  whenever  she  was  bee    in    in   his custody, so  issues of supervision are totally uncalled for. He denies the claims that he has a girlfriend in Angola or that he intends to relocate to that country, saying no evidence has been presented to confirm that.  He  further states that he  has no  plan or  desire whatsoever to  take the  child outside Kenya, and urges the court not to  give the   appellant a  blank cheque which will  allow  her  to behave as she pleases.

In  a supplementary affidavit by the  appellant, she denies the issues  raised  by   the    respondent,   terming  them falsehoods and claims that the  respondent is in  contempt of orders which she is  already against.  She claims that the respondent is out to harass her and is not bothered about the welfare of the child.

She claims that the access order exposes the child to hardship as it  means that for  every  alternate Friday she will  travel  to   Nakuru  and  be   back  to   the  undisclosed residence  by  Sunday  at  4. 00  p.m. in preparation for school the next day.

Basically the appellant not only seeks stay of the   trial court's orders with regard to unsupervised access to the child, she also wishes the orders to be varied with regard to    respondent's   access   to    the     child   on    alternate weekends.

In considering an application for stay, Order 42 Rule 6(2) Civil Procedure Code provides that:-

"No order for stay of execution shall be made....... unless:-

(a) The court is satisfied that substantial loss may result to the applicant unless the order  is  made,  and that  the application has been   made  without unreasonable delay, and

(b) Such  security  as  the  court  orders for the due  performance of such decree or order as may ultimately be  binding on his has been given by  the applicant

I   confirm that this application was brought without undue delay.

The issue which then arises is what substantial loss will the applicant suffer if the trial court's   orders are realised?  She says the child will suffer hardship and she is  likely  to  be  permanently  deprived of  the child by  the respondent as  he  could  easily  leave  this  court's jurisdiction.

I have considered the written submissions by counsel - the   applicant's   counsel   has   basically repeated   the contents of the appellant’s affidavit, in his submissions. The  respondent's counsel argues that the applicant has failed  to  show that  execution of  the  court  orders  will create a state of  affairs that  will  irreparably   affect  or negate the  very essential core  of her  successful appeal.

The  guiding provision for  an application such as this one is Order 42 Rule 6(1) Civil   Procedure  Rules  which provides that:-

"No  appeal .......  shall operate as a  stay of  execution or  proceedings under a decree  or  order aggrieved  from  except in  so  far   as  the  court appealed  from may   order....... for sufficient cause......... stay of  execution.........."

The principles that a court will take into account were set out by Ringera J (as   he then was)   in   the case of GLOBAL TOURS TRAVELS LTD.  (Winding Up Cause No.43 of 2000) as being:-

(1) Whether it is in the interest of justice to order stay.

(2) The need for expeditious disposal of cases.

(3) Whether the application has been made timeously.

My perception of the  applicant's grievance, borne by  her deposition in  the  affidavit is  that she is  extremely angry that the  respondent left  Kenya for  a period of two  years, during  which  time  she  brought  up  the    child  single handedly, and she is  offended by  the thought that after her single contribution to  the child, the   respondent can now gleefully have  access  to   the   child. This fact is repeated several times in her supporting affidavit, supplementary affidavit and even submissions by her counsel.

Can this substantial loss be extended to the child?

I acknowledge  the  age  of the  child  vis-a-vis the orders for alternate weekend's access and the  fear  that she may  be spirited out  of  the  country. The most paramount consideration is the best interest of the child.   Article 53(1) (e) of the Constitution provides that:-

"Every child has the right:-

(e) To parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not."

The Constitutional recognition is echoed in section 24(1) of the Children’s Act, and the basis for this provision is not hard to see.

A child needs the participation of both parents in his/her life so as to enrich the child’s quality of life. This is why it is important that unless completing unavoidable, such interaction between parent and child should not be unnecessarily curtailed.

I find  the case of Mangit Singh Amrit V Rapinder  Kaur Atwal [2009] eKLR very  useful in  this aspect.  Onyancha J stated in that case as follows:-

"The concern  that the child  should grow  and develop with the help of  both his parents, will  be  taken into account in the  issue  of  access which the Department will  be  given in  respect of the child. ... in the best interest of  the child. ..."

The applicant's fears that the child might be spirited out of Kenya especially because the  respondent has her passport - that is the only   real   fear.  Claims of an amorous liaison with some un-named individual from Angola, or an intended relocation to that country are not supported by any evidence. It has not been suggested that the respondent is of violent or perverted character so that it would be risky to leave the child with him without supervision.  I  think  the   fear   of  leaving this  court's jurisdiction can  easily be  addressed by  ordering the respondent to  deposit the  said passport in  court.  In  the absence of any  evidence to  persuade this court that the presence of the  appellant is  necessary during the child's visit  to  the respondent, is with  the  greatest of respect, patronising and similar of a prefect's conduct, intended to create mistrust in  the young mind of the  child towards her  father.

No psychological assessment  report has been presented to  this court to  confirm that  the   alternate  visits  which have a  traumatory or physically  drawing  effect  on   the child, infact children generally unlike adults  enjoy the frequent  change of scenes and  the appellant as a responsible mother ought to  ensure  that on  Sundays when the child is  back from  visiting so  as to re-energise. That alone would not persuade me to define the child of the necessary interaction she needs with her father. The application has no merit and is dismissed with costs to respondent.

Delivered and dated  this 25th day of June, 2014 at Nakuru.

H.A. OMONDI

JUDGE