Moe v Family & 1 other

orders. As such, the orders of the court remained and it was incumbent upon the Appellant to oblige.” 3. 4. On 8 October 2024, the Appellant/Applicant filed the present Chamber Summons seeking the following orders: i. That the Honourable Court be pleased to vacate/set aside the judgement the Honourable Court delivered and signed on 29 August 2024, which the Honourable Court made under Order 17, Rule 3 on its own motion as I was not served with any hearing dates of 9 July 2024; ii. That the Honourable Court be pleased to reinstate the orders granted by the Honourable Court on 2 June 2023 and I be granted opportunity to prosecute my appeal under Article 48, on access to justice and Article 50 (1) on right to a fair hearing; iii. That the Honourable Court be pleased to quash or vacate any orders the Respondent obtained ex parte in the Children’s Case No 27 of 2013 as there was an active order dated 2 June 2023 (that there be a stay of further proceedings in the Children’s case No. 27 of 2013 pending the hearing and determination of the appeal which orders have not been vacated or varied by a court of competent jurisdiction as the Respondent has been moving the court in the Children’s case No 27 of 2013 on various dated between 29 January 2024 – 9 September 2024, although the trial court had been served with the orders; iv. That despite the honourable court having issued restraining orders against the Respondent, her agents, servants and her legal representative, are restrained from entering and/or in any way attempting to enter or purporting to appoint AZTEC Auctioneers, P. O. Box 3501 – 00100 Nairobi, Tel 072811XXXX or a Mr Paul Ngatia of Hamud Realtors, HRC Rehani, 9th Floor, P. O. Box 37297 Nairobi Tel 075629XXXXX or any of their representative as agents to collect rent or otherwise manage the property of the Appellant, Hamud Realtors Ltd has manifested themselves as Keyquest Realtors LTD, their agents have been hovering over my property under the instructions of the Respondent, I invite Court to give a restraining order; v. The Honourable Court be pleased to restrain Reizen Auctioneers P.O. Box 23280- 00200, a Mr Walter Okoth, Mbabu Kimathi from carrying on any warrant of attachment in execution of Order obtained ex parte by the Respondent when there was a stay of further proceedings, the trial court continued to hear the matter in children case No. 27 of 2013 despite having knowledge of the stay order; vi. That the Honourable Court be pleased to vary Kshs 5,000 monthly on account of subsistence since the circumstances has changed, the minor is in boarding school in [Details withheld] and I am paying all her fees including boarding fees, shopping for her needs I shall suggest I only pay for the subsistence during the holidays, i.e April, August, December; vii. That I do not owe the Respondent a sum of Kshs 1,397,522 as reflected in her application for a decree dated 25 July 2024 which is full of creative accounting and the trial court just rubber stamped without giving me the opportunity to reply. I demand that the court be pleased to order for a forensic audit before execution in any event there was a suspension order in place suspending further proceedings in the children case No 27 of 2013 until the appeal is heard and determined. Even before the said Application could be heard, the Appellant/Applicant lodged yet another appeal, Appeal No. 146 of 2024, arising from the same Children’s Case, against orders issued on 9 September https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5916/eng@2026-04-30 2

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2024 and 22 October 2024. The Memorandum of Appeal was accompanied with Chamber Summons dated 4 November 2024, seeking almost similar orders. 5. Following this Court’s directions on 8 October 2025, the two matters were consolidated. Further directions given were that the two Applications would be canvassed together. The Respondent filed her Grounds of Opposition to the Application dated 4 November 2024. Parties filed their submissions with respect to the Applications. Brief Background 6. The genesis of the present appellate proceedings is a judgment delivered by the trial court, presided over by Hon. R.O. Mbogo, SRM, on 21 December 2018 in Children’s Case No. 27 of 2013. The trial court, after evaluating the evidence, ordered that the parties share joint legal custody, while actual custody, care, and control of the minor remained with the Respondent. Financial obligations were apportioned: the Appellant was ordered to provide Kshs 8,000/= for rent, to pay school fees and related educational expenses until the child earned a first degree or diploma, to secure medical cover, and to contribute Kshs 8,000/= per month towards shared food and utilities. 7. Following subsequent disputes over the interpretation of these financial obligations—specifically regarding ambiguous claims for upkeep—the trial court delivered a clarification on 3 November 2022. The presiding Magistrate explicitly noted the parameters of the financial decree, stating that the Appellant was directed to provide rent at Kshs 8,000/=, school fees, and food and utilities at Kshs 8,000/= per month. The court emphatically clarified that the issue of an additional Kshs 8,000/= for upkeep was strange and had never been ordered by the court, capping the Appellant's monthly contribution for food, utilities, and rent at Kshs 16,000/=. 8. Despite this clarification, the relationship between the parties remained highly litigious. Aggrieved by the accumulated arrears calculated by the Respondent and the execution steps sanctioned by the trial court—now under Hon. C.C. Oluoch, Chief Magistrate—on 17 November 2022, the Appellant lodged High Court Family Appeal No. E126 of 2022. 9. The appellate process provided a temporary reprieve. On 2 June 2023, this Court issued interim conservatory orders, specifically granting a stay of further proceedings in Children’s Case No. 27 of 2013 pending the hearing and determination of the appeal. This stay was conditionally granted on the premise that the Appellant continues to pay Kshs 5,000/= per month towards the minor's subsistence and clears the minor's school fees at her current institution. 10. On 14 March 2024, the Court proceeded to vacate the conditional stay on the basis that the Appellant/ Applicant had failed to comply with the orders. It is noteworthy that the Appellant/Applicant had been absent from Court on three prior instances, including 14 March 2024. The Appellant/Applicant was directed to file and serve his submissions on the appeal within 14 days, which he failed to do. 11. The matter was subsequently mentioned on 30 May and 16 July 2024. The Appellant/Applicant failed to attend court on both occasions. Even when the judgement was delivered on 29 August 2024, the Appellant/Applicant was not present. 12. Following the dismissal of the appeal and the lifting of the stay, the children Court—now presided over by Hon. B. Ochoi, Chief Magistrate—moved with striking alacrity. The court issued warrants of attachment and sale on 9 September 2024 and 18 September 2024, directed to Reizen Auctioneers Ltd, commanding the attachment of the Appellant's property, known as Nairobi/Block 121/9, to realize the claimed sum of Kshs 1,397,522. A subsequent Ruling was made on 22 October 2024, solidifying these execution directives and triggering immediate proclamation notices. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5916/eng@2026-04-30 3

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13. This rapid sequence of events precipitated the Appellant's urgent applications. He filed the 8 October 2024 application seeking to set aside the 29 August 2024 judgment, and subsequently filed the 4 November 2024 application appealing the 9 September and 22 October 2024 subordinate court execution orders. The Submissions 14. The Appellant’s core argument for setting aside the judgment is grounded in the constitutional right to a fair hearing. He argues that a judgment delivered ex debito justitiae against an unserved party is fundamentally flawed. He deposes that no hearing notice for 9 July 2024 was served upon him, violating Article 50(1) of the Constitution. 15. Regarding the subordinate court proceedings, the Appellant posits that the trial court acted with unbridled impunity. By processing execution applications between January and July 2024 when an active stay order issued by the High Court was in force, the lower court circumvented the appellate process. The Appellant relies on the doctrine that any proceedings conducted in defiance of a valid stay order are an absolute nullity and a profound abuse of the court process. 16. On the critical issue of execution, the Appellant raises a fundamental point of law regarding the capacity of the auctioneer. He provides documentary evidence that Reizen Auctioneers Ltd is an incorporated private limited company, bearing Certificate of Incorporation No. PVT-EYU7M99. Relying on the Auctioneers Act, he contends that corporate entities cannot hold an auctioneer's license, rendering all warrants directed to and executed by Reizen Auctioneers Ltd void ab initio for want of legal capacity. 17. Furthermore, the Appellant challenges the computation of the decretal sum. He highlights that the Respondent's application for execution dated 25 July 2024 includes claims for shared food expenses and additional upkeep that explicitly contradict the trial court's interpretation of the judgment rendered on 3 November 2022. He asserts he has paid Kshs 232,026/= directly via M-Pesa and that the Respondent collected Kshs 564,387/= in rent from his premises. 18. The Respondent, conversely, paints the Appellant as a recalcitrant parent who utilizes the judicial system to evade his responsibilities. She contends that the Appellant was properly served with all notices through the Judiciary's e-filing platform. She characterizes him as a seasoned court user who deliberately chose to abandon his appeal, rendering the dismissal of 29 August 2024 entirely lawful. 19. The Respondent emphasizes the extensive, traumatic history of the litigation. She deposes that the accumulated arrears across various court orders amount to a staggering Kshs 7,686,645/=. She argues that the execution processes, including the attachment of the Komarock property, represent the only viable mechanism through which the minor's rights can be enforced and destitution avoided. 20. On the issue of the minor attending a boarding school, the Respondent dismisses this as a basis for varying maintenance. She argues that a child requires a permanent, secure home during school holidays, and that she has faced severe hardships, including being locked out of rental houses due to the Appellant's failure to pay his mandated rent portions. The Respondent further argues that the subordinate court orders of September and October 2024 were properly issued because the High Court stay had already been vacated upon the dismissal of the appeal on 29 August 2024. Analysis & Determination 21. Having carefully perused the pleadings, the sworn Affidavits, the annexures, and the comprehensive written submissions, the Court isolates the following five central issues for determination: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5916/eng@2026-04-30 4

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i. Whether the judgment delivered on 29 August 2024 should be set aside and the appeal reinstated. ii. Whether the proceedings and execution applications processed in the Subordinate Court constitute a nullity. iii. Whether the transition of the minor to a boarding school constitutes a material change in circumstances warranting a variation of the maintenance orders. Setting Aside the Judgment of 29 August 2024 22. The Appellant seeks the setting aside of the judgment that dismissed his appeal, relying primarily on the assertion that he was never served with a hearing notice for 9 July 2024, thereby stripping the resultant judgment of its procedural validity. The dismissal of appeals for want of prosecution or non-attendance in the High Court is governed by Order 42 Rule 35 of the Civil Procedure Rules. 23. The jurisprudence regarding the setting aside of dismissals is deeply anchored in the delicate balance between the expeditious disposal of cases and the fundamental right to a fair hearing under Article 50(1) of the Constitution, alongside the right of access to justice under Article 48. The cornerstone of this jurisdiction remains the landmark, enduring decision of the Court of Appeal in Shah v Mbogo EA 116, where it was held: "The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but it is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice." 24. This defining principle was expanded upon in Patel v E.A. Cargo Handling Services Ltd EA 75, where the Court emphasized that the main concern is to do justice to the parties, and the court will not impose conditions upon itself to fetter the wide discretion granted by the rules. Furthermore, contemporary courts have reaffirmed that while equity aids the vigilant, procedural technicalities should not entirely lock a litigant out of the seat of justice if an excusable mistake is demonstrated. A delay must be properly accounted for, and mere administrative oversights without proof do not automatically warrant the setting aside of a judgment. 25. In the instant case, the judgment of 29 August 2024 explicitly noted: "Without the benefit of submissions from the Appellant, and bearing in mind that both parties are acting in person, it is extremely difficult for this court to comprehend the grounds of appeal herein". The appeal was dismissed essentially on the perceived merits as decipherable from the sparse record, combined with the Appellant's absence and failure to file submissions. 26. While the Respondent alleges that the Appellant was served via the e-filing platform, this Court must tread with utmost caution. The right of access to justice demands that a litigant, particularly an unrepresented one, must be demonstrably aware of hearing dates. In this instance, both parties are lay persons. The record indicates that the Appellant/Applicant failed to attend court on several occasions, leading to the conclusion that he was not interested in prosecuting his case. The Sanctity of the Stay Order and Trial Court Proceedings 27. The record herein clearly indicates that since the conditions of the stay order were not met by the Appellant/Applicant, the same was lifted. The answer to the issue herein is undeniable; in the absence of the stay orders, the trial court possessed the jurisdiction to receive, entertain and process an execution application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5916/eng@2026-04-30 5

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Variation of Maintenance due to Boarding School Enrolment 28. The Appellant seeks a substantive variation of the monthly maintenance order—specifically the Kshs 5,000/= monthly upkeep and the Kshs 8,000/= rent/food contributions—on the grounds that the minor, VAA, is now enrolled as a full-time boarder at [Details withheld]. The Appellant has furnished bank deposit slips and school fee structures confirming substantial fee payments to the institution. 29. Section 101 of the Children Act vests the Court with the jurisdiction to vary or rescind maintenance orders where there is a material change in circumstances. However, any variation must be fundamentally guided by Article 53(2) of the Constitution, which mandates that the child's best interests remain paramount. 30. Nonetheless, I echo the sentiments of the trial court made on 17 November 2022: “ It was incumbent upon him (the Appellant/Applicant) to move the court as soon as the child joined a boarding school to review the orders.” 31. There is no evidence before this Court to demonstrate that the Appellant/Applicant made such an application before the trial court. Instead, the Appellant/Applicant has chosen this appellate forum to seek the review of the maintenance orders. The Appellant/Applicant ought to seek redress in the proper forum, which is the trial court. 32. In conclusion, litigation involving the welfare of a child must not be allowed to degenerate into a theatre of financial attrition and procedural warfare. the Constitution commands that the child's best interests dictate the proceedings. However, securing those interests must be done strictly within the bounds of due process, jurisdictional limits, and statutory mandates. 33. The Appellant/Applicant has failed to persuade this Court that he is deserving of the orders sought. For that reason, the two Applications fail. The same are dismissed. 34. Each party to bear their own costs. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE Delivered on virtual platform in the presence of: For the Appellant/Applicant: For the Respondent: Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5916/eng@2026-04-30 6

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