In re TLL (Minor) (Civil Appeal E285 of 2024) [2025] KEHC 14346 (KLR) (19 February 2025) (Ruling)
Neutral citation:
[2025] KEHC 14346 (KLR)
Republic of Kenya
Civil Appeal E285 of 2024
NIO Adagi, J
February 19, 2025
IN THE MATTER OF TLL (MINOR)
Between
AWK
Applicant
and
AL
Respondent
Ruling
1.The application before this court is the Notice of Motion application dated 25th October 2024 brought pursuant to provisions of Order 42 Rules, Sections 1A, 1B, and 3A of the Civil Procedure Act 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 seek for stay of execution of the orders (d) and (e) issued by the trial magistrate on 11/10/2024 in Mavoko Children Case No. E023 of 2022, that is unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays pending hearing and determination of the appeal.
2.The application is based on the grounds on the face thereof and supported by a supporting affidavit of the Applicant sworn on 25/10/2024.
3.The application is opposed by the Respondent who has filed a Replying Affidavit sworn on 8/11/2024.
4.The facts in this application are not in contention as there is a valid judgment delivered on 11/10/2024 in the Children Case No. E023 of 2022 at Mavoko Chief Magistrate’s Court. What is in contention is whether the Respondent should have unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays pending hearing and determination of the appeal.
5.Parties were directed to canvass the application through written submissions. Both parties complied. The Applicant’s submissions are dated 27/11/2024 whilst the Respondent’s submissions are dated 6/12/2024.
Summary of Applicant’s Submissions
6.The Applicant submitted that the minor has been in her custody and care since his Eighth month and that the Applicant has been solely taking care of the minor’s needs. The reason the Respondent was separated from the minor is that he was extremely abusive and violent to the Applicant during their cohabitation culminating to violent ejection of the Applicant and minor from the home they lived in. The minor is now in a stable and safe environment and is already enrolled in a school and enjoys medical insurance. The Applicant therefore is apprehensive that if orders (d) and (e) will be executed, the minor is likely to be influenced by the Respondent’s character of violence, vulgar language and alcohol if he is given physical custody of him immediately without intervening period of bonding. Additionally, the Applicant wishes that the Respondent undergoes mandatory counselling owing to his violence, alcohol abuse and vulgar language he uses on her and the threat he has made before that he will keep the minor away when he gets hold of him.
Summary of Respondent’s Submissions
7.The Respondent submitted that the trial court’s decision was firmly rooted on the principles of fairness, equity and most importantly, the child's best interest, as provided for under Article 53 of the Constitution and the Children’s Act 2022. That the Respondent is a fit and capable parent committed to the welfare of the minor and emphasizes the importance of upholding the child’s right to a meaningful relationship with both parents, in line with the Children’s Act 2022. The continuous denial of access to his son over the years has denied the Respondent a critical part of the upbringing of his son which has continually frustrated him and any alleged exchanges with the Applicant if any, may have been as a result of the said frustration, helplessness and utter disappointment in denying the Respondent access to the child. This was and continues to be utter breach of the child’s right to love, care, and protection of both parents. The Respondent prays that the application be dismissed.
Analysis & Determination
8.I have carefully perused through and considered the Application, Supporting Affidavit, Further Affidavit, Replying Affidavit, the Judgment dated 11/10/2024 and the Parties rival submissions and for me the issue for determination on the application is whether this court will grant an order of stay of execution of unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays by the Respondent.
9.The principles for grant of stay of execution in children matters were set out in the case of Bhutt v Bhutt Mombasa HCCC No. 8 of 2014 (O.S) in which it was held that:-
10.In exercising its jurisdiction to grant stay of execution, the High Court is required by Order 42 Rule 6 of the Civil Procedure Rules, to be satisfied that:-a.Substantial loss may result to him unless the order is made;b.That the application has been made without unreasonable delay; andc.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
11.These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-
12.Similarly, in the case of Selestica Ltd...vs...GoldRock Development Ltd (2015) eKLR, the court held that:-
13.The relief of stay of execution is discretionary and the court must balance the competing interests of the parties where one seeks to enjoy the fruits of the judgment and the other the right to appeal.
14.The prayer sought at this stage is for an order of stay of execution of unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays by the Respondent.
15.The judgment of the Children’s Court Case No. E23 of 2022 at Mavoko was delivered on 11/10/2024 and the application herein was filed on 27/10/2024. The same was brought without undue delay.
16.The condition for security of execution does not arise in the circumstances of this case.
17.Having dealt with the two principles above, I am left with the issue of whether the Applicant is likely to suffer substantial loss. It is trite that grant of stay orders is a discretionary issue which must be exercised judiciously and reasonably bearing in mind the paramount consideration of Article 53 (2) of the Constitution which underpins the best interests of a child. A higher court will only interfere with the trial court’s discretion if proved that the trial court misdirected itself in the matter thereby arriving at a wrong decision. See Mbogo v Shah (1968) EA 93,96.
18.It appears from the supporting affidavit of the applicant and the grounds put forth to justify her opposition to the order for unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays by the Respondent is that the minor is now 6 years old and has been in her custody and care since he was eight month old and that the abrupt, unsupervised unlimited access to the child by the Respondent without providing for familiarization and bonding period would upset and traumatize the child and significantly disrupt his established routine and stability. That the child’s well being and the psychological impact of such a sudden change in living arrangement and certainly not in the best interest of the child. The Applicant is also apprehensive that if orders will be executed, the minor is likely to be influenced by the Respondent’s character of violence, vulgar language and alcohol if he is given physical custody of him immediately without intervening period of bonding. Additionally, the Applicant wishes that the Respondent undergoes mandatory counselling owing to his violence, alcohol abuse and vulgar language he uses on her and the threat he has made before that he will keep the minor away when he gets hold of him.
19.The Respondent has deposed that the trial court’s decision was firmly rooted on the principles of fairness, equity and most importantly, the child's best interest, as provided for under Article 53 of the Constitution and the Children’s Act, 2022. That the Respondent is a fit and capable parent committed to the welfare of the minor and emphasizes the importance of upholding the child’s right to a meaningful relationship with both parents, in line with the Children’s Act 2022. The continuous denial of access to his son over the years has denied the Respondent a critical part of the upbringing of his son which has continually frustrated him and any alleged exchanges with the Applicant if any, may have been as a result of the said frustration, helplessness and utter disappointment in denying the Respondent access to the child. This was and continues to be utter breach of the child’s right to love, care, and protection of both parents.
20.As pointed out above quoting Bhutt V Bhutt, (supra): “The best interests of a child are superior to the rights and wishes of parents, and they incorporate not just the physical comfort of the child but the welfare in its widest sense”.
21.It is quite unfortunate that this court did not get a chance to peruse through the Children Officer’s report that was presented before the trial court for consideration.
22.I will repeat to say that the best interest of the child shall always prevail as a matter of priority over and above anybody’s interest. For that reason, I will desist from delve into the issue concerning the Respondent undergoing mandatory counselling. In any event there is no prayer by the Applicant for the same and even if there were, this court would not have jurisdiction in this case to determine the same.
23.In the circumstances of this case, it is not in contention that the Respondent has not had contact of the child from since he was 8 months old. This court appreciates that the Respondent as a biological father to the child herein has a right to play an active role in his life and upbringing.
24.Article 53(1) (e) of the Constitution provides that:-
25.The Constitutional recognition is echoed in Section 11 of the Children’s Act, 2022 and the basis for this provision is not hard to see.
26.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.
27.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:-
28.In addition, it is not in the interest of justice to deny the child access to his father. In MAK v RMAA & 4 Others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (2 March 2023) (Judgment), the court of appeal held:-
29.This court is of the considered view that the Respondent having been away from the child for such a long period of time, might at the beginning be like a total stranger to the child and as such, the child will require some time to familiarize himself with him. The Respondent might also not be in a position to understand properly and or know the preferences of the child and his style of upbring and any sudden changes are likely to disrupt his well- being. It will only be prudent that the Respondent be allowed to gradually bond with the child as will be directed by this court.
30.The question of facts as to whether the Respondent is a fit person to be granted unlimited access of the minor herein is a matter to be resolved upon determination of the appeal. It is a matter which ought not to be determined on the basis of disputed facts set out in affidavits filed by the parties at the interim stage.
31.This court is of the view that the Applicant’s proposal for limited access through video calls, is with the greatest of respect, patronising and intended to create mistrust in the young mind of the child towards his father.
32.In the circumstances, I find that it is in the best interest of the child in this case to be physically accessed by the Respondent, his father. No exceptional circumstances have been demonstrated to justify why the Respondent should be denied physical access of his child.
33.Accordingly, I make the following orders:a.I hereby set aside orders (d) and (e) issued in the judgment delivered by the trial magistrate on 11/10/2024 in Mavoko Children Case No. E023 of 2022, on unlimited access to the minor on alternate weekends and custody of the minor for half of the school holidays by the Respondent and substituted thereof an order that the Respondent shall have physical access of the minor every Saturday as from 9.00AM to 5.00PM commencing the 2nd coming Saturday of this ruling to allow for Father-Son familiarization and for gradual bonding pending further orders of the court and or pending the hearing and determination of the appeal..b.Either party shall be at liberty to move the court on the compliance of order (a) above.c.I, direct the appeal be heard expeditiously on a date to be fixed on priority basis.d.Each party shall bear their own costs of the application.It is hereby so ordered.
RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 19TH FEBRUARY 2025NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 19TH FEBRUARY 2025In the presence of :............. for Appellant.............. for Respondent............ Court Assistant