Pgm & 1 other v Ogm
The bottom line
#Kenya's Court of Appeal let grandparents keep custody of a six-year-old girl pending appeal, prioritising the child's stability over the High Court's judgment.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application for failure to annex certified copies of the decree and orders
The application was properly before the court, being anchored on two notices of appeal against the judgment and the ruling, and no principle under Rule 5(2)(b) requires annexure of the impugned decree or orders.
The court found notices of appeal dated 29th May 2020 and 17th August 2020 annexed to the application. Since none of the crystallised principles governing Rule 5(2)(b) applications requires a party to annex certified copies of the decree or orders, the respondent's objection was rejected and the court proceeded to the merits of the application.
Whether the intended appeal is arguable
The intended appeal was arguable, raising bona fide issues including the duration of the minor's residence with the applicants and the absence of exceptional circumstances justifying change of custody.
The applicants intended to argue that the Judge failed to appreciate that the minor had lived six uninterrupted years with them and that change of environment would impact negatively on her, and that custody of a young girl should not be given to the father absent exceptional circumstances. One arguable point suffices under the Rule 5(2)(b) jurisprudence.
Whether the appeal would be rendered nugatory, considering the welfare of the minor
Stay was granted to preserve the status quo of the minor's custody with the applicants, because the welfare of the minor is paramount and moving her again would destabilise her should the appeal succeed.
The substratum of the appeal is custody of a six-year-old girl who has been with her maternal grandparents since birth. Although the High Court decree could be reversed, the court held it prudent not to disturb the status quo, allowing the applicants to retain custody, care and control pending the appeal to avoid destabilising the minor.
Legal principles established
#- An application under Rule 5(2)(b) is not defeated by failure to annex certified copies of the decree or orders impugned; the twin principles of arguability and nugatory-ness must both be established
- There is no jurisdiction to grant relief under Rule 5(2)(b) where the impugned order resulted in a dismissal or striking out, i.e. a negative order
- Both twin principles - an arguable appeal and the nugatory-ness of the appeal - must be established before relief can issue under Rule 5(2)(b)
- In proceedings involving a child, the welfare of the child is the paramount consideration, and in custody disputes the court may preserve the status quo pending appeal to avoid destabilising the child
Court orders
#- 1.Prayer 3 disallowed as it arose from a negative order
- 2.Stay of execution of the judgment of the High Court at Kerugoya in High Court Appeal No. 40 of 2017 by Hon. L. W. Gitari issued on 18th May 2020 pending hearing and determination of the appeal, the minor remaining in the custody of the applicants until their appeal is heard and determined
- 3.The Deputy Registrar of the High Court appealed from directed to provide necessary documents to the applicants to enable them file the intended appeal within ninety days from the date of the ruling
- 4.Costs of the ruling shall abide the outcome of the appeal
- On appeal from
- High Court at Kerugoya
- Kerugoya HCCA No. 40 of 2017
- Jurisdiction invoked
- Section 3A of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya and Rule 5(2)(b) of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pgm & 1 other v Ogm", Case Analysis (2021). Civil Appeal (Application) No. 83 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1081/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.