MMG (Suing as the Mother and Next Friend of PMK, TA, FB, DK and EM) v TO (Civil Appeal (Application) E012 of 2023) [2023] KECA 1197 (KLR)
The bottom line
#A mother lost her bid to freeze a custody ruling on appeal because she proved her appeal was arguable but not that it would be pointless without a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable; the grounds in the draft memorandum of appeal, including the setting aside of the trial court's custody order regarding DK, are not frivolous and deserve the court's consideration.
The court examined the draft memorandum of appeal, noting that the applicant challenges the High Court's reversal of the trial magistrate's custody award of DK and seeks to retain actual custody pending appeal. The court held that children's issues are sensitive and best canvassed within an appeal, concluding that a single bona fide ground suffices and the grounds raised met that threshold.
Whether the appeal will be rendered nugatory if stay is not granted
The appeal will not be rendered nugatory. Execution of the High Court decree reverts the parties to the position before the trial court judgment, a reversible situation, and staying orders on counselling, shared custody, the Social Inquiry Report and school fees could be disastrous to the minors.
DK had been in the applicant's actual custody since June 2021, but prior to that she lived with the respondent and her siblings. Execution would simply restore the pre-trial-judgment position, which the court could reverse if the appeal succeeded. The court weighed the minors' welfare, finding it could be disastrous to stay orders concerning counselling, shared custody, the Social Inquiry Report and payment of school fees.
Cumulative satisfaction of the twin principles under Rule 5(2)(b)
Both limbs must be demonstrated; the applicant, having satisfied only the arguability limb, failed and the application was dismissed.
Relying on Trust Bank Limited v Investech Bank Limited and Republic v Kenya Anti-Corruption Commission, the court reiterated that the applicant bears the duty to demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay. Arguability alone does not earn a stay; the failure of the nugatory limb was fatal to the application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles - that the appeal is arguable and that it will be rendered nugatory absent stay; satisfying only one limb is insufficient.
- The jurisdiction under Rule 5(2)(b) is original, independent and discretionary, but must be exercised judiciously and with reason, not on impulse or pity.
- In children matters, stay applications are decided with utmost sensitivity to the minors' best interests, and contentious child-welfare issues are best determined within the appeal itself rather than on a stay application.
- An appeal will not be rendered nugatory where execution of the decree merely reverts the parties to a prior, reversible position which the court can restore if the appeal succeeds.
Court orders
#- 1.The application dated February 9, 2023 is dismissed
- 2.Costs shall abide the outcome of the intended appeal
- 3.The intended appeal be fixed for hearing on a priority basis
- On appeal from
- High Court of Kenya
- Appeal against Nakuru CMCC Children Case No. E002 of 2021 (judgment of M. T. Matheka, J. dated February 6, 2023)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022; sections 3, 3A and 3B of the Appellate Jurisdiction Act; sections 8 and 9 of the Children's Act No. 29 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MMG (Suing as the Mother and Next Friend of PMK, TA, FB, DK and EM) v TO (Civil Appeal (Application) E012 of 2023) [2023] KECA 1197 (KLR)", Case Analysis (2023). Court of Appeal Application dated February 9, 2023 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1197/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.