PKA v MSA (Civil Application 285 of 2009) (20 November 2009) (Ruling) (with dissent - JG Nyamu, JA) [2009] KECA 414 (KLR)
The bottom line
#Kenya's Court of Appeal refused to suspend a custody order, ruling that winning an argument is not enough—you must prove waiting will cause harm that cannot be undone.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable (not frivolous) under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether, if a stay or injunction is not granted, the intended appeal, if successful, will be rendered nugatory
- 3.Whether this Court, on a rule 5(2)(b) application, may vary the superior court's order on access to the child
- 4.Whether the taking of the child's evidence in a private session with the trial judge, absent the parties and their advocates, is a ground affecting the application
Key legal issues
#Cumulative nature of the rule 5(2)(b) twin principles
Both arguability and the nugatory-principle must be demonstrated before a stay can be granted; demonstrating only arguability is insufficient.
The Court restated the settled principles governing rule 5(2)(b) applications: the applicant must show an arguable appeal and, in addition, that refusal of a stay or injunction would render a successful appeal nugatory. Although the applicant assumed an arguable appeal, the majority found the nugatory limb unmade out because the child had always lived with the respondent and a stay would merely restore the status quo ante.
Scope of the rule 5(2)(b) jurisdiction
The power under rule 5(2)(b) is principally conservatory; it does not extend to varying superior court orders such as access provisions, which is a power exercisable at the hearing of the appeal under rule 31.
The Court contrasted rule 31, which confers power on appeal to confirm, reverse or vary a decision, with rule 5(2)(b) applications, where no similar provision exists. The applicant's request for equal access was therefore a matter for the appellate hearing or for the superior court, not for an interlocutory stay application.
Best interests of the child and the child's voice in custody proceedings
Sections 4(2) and 4(4) of the Children Act make the child's best interest a primary consideration and entitle the child to express an opinion, which may be taken into account according to age and maturity; interviewing the child in confidence with the parties' consent was consistent with this.
The trial judge interviewed the 13-year-old child in confidence and acted partly on what the child said, with the consent of all parties and their advocates. The majority was prepared to assume arguability but did not accept that the in-camera interview rendered the proceedings invalid, noting the statutory basis for ascertaining the child's wishes.
Whether loss of access over time renders an appeal nugatory (minority view)
Nyamu JA, dissenting, held that where a parent's right of access would be irretrievably lost by the passage of time, the nugatory principle is satisfied and the overriding objective (sections 3A and 3B, Appellate Jurisdiction Act) justifies an interim order for equal access.
The dissent reasoned that the right to family life is intertwined with access to one's child and that liberty and basic rights once lost can never be recovered, citing Wanyiri Kihoro v Kona Hauthi Ltd. Invoking proportionality and equality of arms under the overriding objective, Nyamu JA would have granted a stay preserving custody in the respondent but equalising access, with liberty to apply to the superior court.
Legal principles established
#- On a rule 5(2)(b) application the twin principles must BOTH be demonstrated: the appeal or intended appeal must be arguable, and the appeal must be rendered nugatory if stay or injunction is refused.
- The jurisdiction under rule 5(2)(b) is original, discretionary and principally conservatory; the Court cannot on such an application vary the superior court's orders or pronounce conclusively on the merits of the appeal.
- Views expressed on a rule 5(2)(b) application are prima facie only, and a concluded opinion may be expressed only in clear and exceptional cases.
Court orders
#- 1.The application dated September 23, 2009 is dismissed
- 2.Each party to bear their own costs of the application
- 3.Recommendation that any appeal filed relating to the child should be given a priority date
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Bosire JA agreed with the reasoning and conclusions of Aganyanya JA, adding that the court on a rule 5(2)(b) application exercises original, conservatory and discretionary jurisdiction, cannot vary the trial judge's access order, and that the applicant's appeal would not be rendered nugatory for want of a stay.
I agree with the reasoning and conclusions reached by Aganyanya JA. I would only add a few words of my own.p. 6
Wrote the judgment
Aganyanya JA found only one of the twin rule 5(2)(b) principles demonstrated: the appeal was arguable, but refusal of a stay would not render it nugatory since the child had always lived with the respondent and a stay would merely restore the status quo. He would dismiss the application with each party bearing their own costs.
It is my view that in this application only one of them, the arguability of the appeal, has been demonstrated but not the nugatory aspect. In the circumstances, I would dismiss this application but as the parties are husband and wife I would order each to bear his/her own costs thereof.p. 10
Wrote the judgment
Nyamu JA found both limbs satisfied: the appeal was arguable and, because access rights lost through the passage of time could never be recovered, the appeal would be rendered nugatory. Invoking the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, he would have granted a stay with the respondent retaining custody but both parents enjoying equal access, with liberty to apply. He nonetheless bowed to the majority.
Notwithstanding the above, I bow to the majority ruling and orders shall issue as per the rulings of my learned brothers Bosire & Aganyanya, JJ.A.p. 15
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Case Number 6 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (with rule 42), a conservatory jurisdiction over an intended appeal against a High Court custody judgment
Relief refused
#Stay of the decree and judgment of the superior court delivered on July 1, 2009 in HCCC No 6 of 2009
Only one of the twin rule 5(2)(b) principles (arguability) was demonstrated; the nugatory limb failed because the child had previously and continuously lived with the respondent, so a stay would not benefit the applicant
Order allowing the applicant equal access to the child pending appeal
Varying the access order would involve the court in the merits of the intended appeal; variation is a power exercisable at the hearing of the appeal or on application to the superior court
Costs of the application against the respondent
As the parties are husband and wife, each was ordered to bear their own costs
Costs
Each party to bear their own costs of the application (as the parties are husband and wife), on terms proposed by Aganyanya JA; Nyamu JA would have ordered costs to abide the outcome of the intended appeal, but his proposal did not prevail.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances I agree that the application dated September 23, 2009, fails and accordingly it is dismissed on terms proposed by Aganyanya JA.
Notwithstanding the above, I bow to the majority ruling and orders shall issue as per the rulings of my learned brothers Bosire & Aganyanya, JJ.A.
It is a legal requirement that the twin principles stated herein before must both be demonstrated before an order of stay can be granted.
The power of the court under rule 5(2)(b), above, is principally conservatory.
In all actions concerning children whether undertaken by Public or Private social institutions, courts of law or legislative bodies, the best interest of the child shall be a primary consideration.
It is clear to us it would not be right to place a value on liberty because it is priceless.
Issues in the judgment
#The child's age is stated inconsistently: Bosire JA and Nyamu JA describe the child as about 13 years old, while Aganyanya JA and counsel state the child is 14 years old.
Ground (j) in the grounds of application states the court was 'absolutely biased against the respondent', which on its face contradicts the surrounding grounds alleging bias against the applicant; the reference appears to be a drafting error.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chairman Board of Governors Ng’iya Girls High School v Meshack Ochieng’ T/A Mecko Enterprises & 4 others [2015] KECA 751 (KLR)[2015] KECA 751 (KLR)8 May 2015followed
Cite this brief
#Cite this brief
Caselaw, "PKA v MSA (Civil Application 285 of 2009) (20 November 2009) (Ruling) (with dissent - JG Nyamu, JA) [2009] KECA 414 (KLR)", Case Analysis (2009). Civil Application Nai 251 of 2009 (as inferred from the application dated September 23, 2009; number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/414/eng@2009-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.