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Court of AppealAllowedCivil Application E236 of 2021· [2022] KECA 387 (KLR)

AW v ST

Court of Appeal
4 March 2022
1,246 words in judgment
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The bottom line

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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

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Executive summary

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The Court of Appeal (M'inoti, Mohammed and Ole Kantai, JJA) ruled on an application by AW, the biological father of an eleven-year-old boy, TNW, for stay of execution of a High Court judgment (Mutuku, J., 24 June 2021) allowing the boy's mother, ST, to relocate with him to the United Kingdom. The parents never married; a 2013 magistrates' ruling granted joint custody with the father having unrestricted access, and the child lived with the father from 2019, schooling in Nairobi. The magistrate had refused relocation, but the High Court allowed the mother's appeal, finding relocation to be in the child's best interest. The father lodged a notice of appeal and sought stay, contending the appeal was arguable - raising the 'exceptional circumstances rule', the child's best interest, and the weight given to the child's wishes - and that relocation would render the appeal nugatory. The mother opposed, arguing the appeal was premised on the father's rather than the child's interests, contrary to Article 53(2) of the Constitution and section 4(3) of the Children's Act. Applying the established test of arguability and nugatory value, the court found the intended appeal not frivolous, since the child's best interest on relocation was central to it. It held that maintaining the status quo was important so the Court could pronounce itself with finality, noting the child's entitlement under Article 53(1)(e) to equal parental care from both parents whether married or not, and that relocation would be disruptive and costly if the appeal succeeded. The court granted a conditional stay: the father was to file and serve the intended appeal within sixty days, failing which the stay would automatically lapse. Costs of the application were to abide the outcome of the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not frivolous; the question of the child's best interest on relocation was at the heart of the intended appeal.

Reasoning

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.

p. 2
02

Nugatory value of the appeal

Holding

Relocation before the appeal was heard would render the appeal nugatory; the status quo should be maintained.

Reasoning

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.

p. 3
03

Nature of the stay granted

Holding

A conditional stay was granted, conditioned on filing and serving the intended appeal within sixty days, failing which the stay lapses automatically.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Conditional stay of execution of the High Court judgment and decree pending the hearing and determination of the intended appeal
  2. 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. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 53(2)
  • Constitution of Kenya, 2010Article 53(1)(e)
  • Children's Actsection 4(3)

Cases cited (3)

  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others
    [2013] eKLR

    Test for stay of execution pending appeal: arguability and nugatory value.

  • ANM v. RKM
    [2018] eKLR

    Relied on by the respondent on the best interest of a child of tender years.

  • KMM v. JIL
    [2016] eKLR

    Relied on by the respondent that enforcement mechanisms can be set up after relocation.

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.