AW v ST
The bottom line
#Kenya's Court of Appeal paused a ruling allowing a mother to relocate her son to the UK, so the father's appeal can be heard first.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was not frivolous; the question of the child's best interest on relocation was at the heart of the intended appeal.
The court held that whether relocation of TNW to the UK was in his best interest was central to the issues the applicant intended to canvass, and that he had an undoubted right to pursue the appeal. Best interest is case-specific and for the appeal bench, so the appeal was arguable.
Nugatory value of the appeal
Relocation before the appeal was heard would render the appeal nugatory; the status quo should be maintained.
The court found it important to maintain the prevailing status quo so it could pronounce itself with finality on the best-interest question. Relocation would disrupt TNW's life and, if the appeal succeeded, entail further costs and disruption in relocating him back to Kenya.
Nature of the stay granted
A conditional stay was granted, conditioned on filing and serving the intended appeal within sixty days, failing which the stay lapses automatically.
The court regarded the matter as requiring utmost urgency in resolution and therefore issued only a conditional stay, tying the continuation of the stay to diligent prosecution of the appeal within sixty days from the date of the ruling.
Legal principles established
#- To obtain stay of execution pending appeal, an applicant must satisfy the court that the intended appeal is arguable and that the appeal will be rendered nugatory if stay is not granted.
- Whether relocation of a child is in the child's best interest depends on the peculiar circumstances of each case and is a matter for the bench hearing the appeal.
- A child is entitled to equal parental care, protection and responsibility of both parents whether married or not.
Court orders
#- 1.Conditional stay of execution of the High Court judgment and decree pending the hearing and determination of the intended appeal
- 2.The applicant to file and serve the intended appeal within sixty (60) days from the date of the ruling, failing which the stay shall automatically lapse
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HC Family Appeal No. 63 of 2019
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant stay of execution pending an intended appeal (notice of appeal lodged)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AW v ST", Case Analysis (2022). Civil Application E236 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/387/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.