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JudgmentKenneth VS WINNIE MEJASITAH LANGO9 min read

Kenneth VS WINNIE MEJASITAH LANGO

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CHILDREN CIVIL APPEAL CASE NO. E006 OF  2024

IN THE MATTER OF: J.A.O (Minor)

KENNETH OTIENO OGARE..... ………….....................  APPELLANT/APPLICANT

VERSUS

WINNIE MEJASITAH LANGO..................................................… RESPONDENT

RULING

Introduction

  1. The application before this court is the Notice of Motion application dated 12th July 2024 brought pursuant to provisions of Section 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42, 22, 50 of the Civil Procedure Rules, The Fair Administrative Actions Act, Article 25, 50 and 159 of the Constitution of Kenya 2010 and all enabling provisions of the Law. Prayers 1 and 2 of the said application are basically spent and the main prayers sought are prayer 3 and 4 which seeks:
  2. Payment by the applicant of Ksh.16,000.00 per month towards maintenance of the minor
  3. Stay of the order of attachment of applicant’s salary and a cash payment does issue.
  4. The application is based on the grounds on the face thereof and supported by a supporting affidavit of the Applicant sworn on 12th July 2024.
  5. This application is opposed by the Respondent who filed a Replying Affidavit sworn on 29th October 2024.
  6. The facts in this application are not in contention as there is a valid ruling delivered on 2nd July 2024 in the Children Case No. E018 OF 2023 at Mavoko Chief Magistrate’s Court. What is in contention is the amount to be paid by the applicant and the mode of payment of that amount which is by attachment of his salary.
  7. Parties were directed to canvass the application through written submissions. Both parties complied. The Applicant’s submissions are dated 18th November 2023 whilst the Respondent’s submissions are dated 22nd November 2024.

Analysis & Determination

  1. I have carefully considered the Application, Supporting Affidavit, Further Affidavit, Replying Affidavit, the Judgment dated 2nd July 2024 and the Parties rival submissions and the two issues for determination are:
    1. Whether attachment of applicant’s salary can be stayed and an order for cash payment does issue pending hearing and determination of the appeal.
    2. Whether the applicant should be allowed to pay Ksh.16,000.00/= per month towards maintenance of the minor.
  2. Whether attachment of applicant’s salary can be stayed and a cash payment does issue pending hearing and determination of the appeal.
  3. Amongst the provisions under which the applicant has brought the application is Order 42 of the Civil Procedure Rules. Stay of execution pending appeal under the said Order is governed by Order 42 Rule 6 of the Civil Procedure Rules. Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010 provides as follows:

“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under subrule (1) 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 him has been given by the applicant.”

8.    In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely:

  1. application must be made without unreasonable delay,
  2. satisfaction of substantial loss and
  3. the furnishing of security.
  4. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt Vs Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & Another Vs Agnes Nalika Chereto (2012)eKLR)
  5. The case of Masis Mwita vs Damris Wanjiku Njeri (2016)eKLR provided the guiding principles which the court should consider while determining an application of this nature. These were;

(a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

(b) The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not to be rendered nugatory should that appeal court reverse the judge's discretion.

(c) A judge should not refuse stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.

(d) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements.

  1. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether applicant has brought this application without unreasonable delay.  The decision as against which this appeal has been filed was delivered on 2nd July 2024 and the instant application was filed on 18th July 2024 which was after about sixteen (16 days). This court is of the view that the application was filed within reasonable time.
  2. The second criterion is whether the Applicant/Appellant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution are not granted. The Applicant submitted that he was not given an opportunity to be heard before the order to attach his salary was made and his employment is likely to be prejudiced should the order be served upon his employer as a result of which he will suffer great loss.
  3. The question then that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that

“The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory”

  1. I have perused the record and I agree with the Applicant that he was not given an opportunity to be heard on how he intended to make the maintenance amounts or an opportunity to show cause why his salary should not be attached. There is no evidence that the Applicant had declined to make the payment through any other manner therefore in my considered view the order for attachment of the Applicant’s salary was made in error and further that no prayer for such order was sought.  I can discern from the decision that, the Children Court opted for the attachment of Applicant’s salary because of the toxic relationship between the parties. However, it is my view that the court would have employed alternative modes of payment that do not really involve close contact of the parties who are said to be in a toxic relationship for instance bank deposits or money transfers. It follows that should the Applicant’s salary be attached; his employment will be prejudiced as a result of which the minor’s welfare too will be affected and both the Applicant and the minor are likely to suffer great loss.
  2. The third criterion is that the Applicant/Appellant must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellant and the Respondent.  The Appellant who seeks to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of herjudgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that:

“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”

  1. It is now trite that, in applications for stay in respect of decrees or orders made in matters involving children, the welfare of the child in question be given utmost consideration. In Mombasa HCCC No. 8 of 2014: Bhutt vs. Bhutt, for instance, the Court took the view, which I entirely agree with, that:

"In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 rule 6 of the Civil Procedure Rules, must be complemented by an overriding consideration of the best interest of the child in accordance with the inunction of Article 53(2) of the Constitution..."

  1. Bearing the foregoing principle in mind, I have carefully considered the application for stay and the Applicant’s Further Affidavit and I establish that the Applicant has obediently been paying the ordered amount directly to the minor’s school a fact that the Respondent has not controverted.  On this issue it will only be prudent that the Applicant continues to pay the ordered amount of Kshs.35,000.00/= directly into the minor’s school account pending hearing and determination of the appeal or pending further orders of this court.
  2. Whether the applicant should be allowed to pay Ksh.16,000.00/= per month towards maintenance of the minor
  3. Having determined that the applicant should continue making payment of the Kshs.35,000.00/= as stated under paragraph 17 above, it follows therefore that his prayer to be allowed to pay Ksh.16,000.00 per month is declined at this stage and the same can be canvassed in the appeal. This court is of the view that should the amount complained of be paid and the appeal succeeds, it shall be recoverable by paying less the amount he could have lost by virtue of that order to pay Kshs.35,000.00/=. In the case of ZMO v E.I.M [2013] eKLR the court in considering the issue of stay in children’s cases held as follows:-

“The solution ideally lies in expediting the disposal of the appeal and staying the matter before the children’s court to wait for the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before the arguments are heard from both sides on the merits of the same.” 

  1. Accordingly, I hereby partially allow the Applicant/Appellant’s application dated 12th July 2024 as follows:
  2. That the order for attachment of the Applicant/ Appellant’s salary made on 2nd July 2024 is hereby set aside and in place an order is hereby issued directing the Appellant to continue without fail to make monthly deposit of Kshs.35,000.00/= into the minors’ school account pending hearing and determination of the appeal and or pending further orders of the court.
  3. The Appellant shall file and serve the record of appeal within Forty-Five (45) days from the date of this ruling.

d.   A mention date to be fixed for further directions on the appeal.

  1. It is so ordered.

RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 6TH FEBRUARY 2025  

     NOEL I. ADAGI

                JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 6TH FEBRUARY 2025

In the presence of :

Kenneth Ogare............................ for Appellant

Ms Wambui......................... for Respondent

Millygrace…........................ Court Assistant

    Kenneth VS WINNIE MEJASITAH LANGO Kenneth VS WINNIE MEJASITAH LANGO