Automated Summary
Key Facts
Katelo v Wakala (Criminal Miscellaneous Application E001 of 2026) involves an appeal by Barako Giro Katelo, a Chief Medical Officer in Marsabit County, against a ruling by the Honorable Kadhi dated October 31, 2025, concerning child custody and maintenance. The High Court granted leave to appeal out of time (90 days delay deemed not inordinate), partially allowing the application by reducing monthly child maintenance from Kshs.30,000 to Kshs.20,000 pending appeal, while dismissing the stay of execution request. The court emphasized the best interests of the four children involved.
Issues
- The court considered whether to stay the execution of the maintenance decree pending appeal. The court partially granted the stay by reducing the monthly child maintenance from Kshs.30,000 to Kshs.20,000, without a full stay, to protect the children's welfare.
- The court considered whether the appellant should be granted leave to appeal out of time against the ruling dated 13th December 2024. The appellant filed the appeal 90 days after the ruling, and the court found the delay was sufficiently explained and not inordinate, thus granting leave to appeal.
Holdings
The court partially allowed the application, granting the applicant leave to appeal against the Kadhi's ruling dated 31st October 2025 within 14 days. The court dismissed the stay of execution request but reduced monthly child maintenance from Kshs.30,000 to Kshs.20,000 pending the appeal. The respondent was awarded costs of Kshs.20,000, and the appeal was ordered to be fast-tracked for hearing within 90 days.
Remedies
- The respondent was awarded costs of the application amounting to Kshs.20,000 inclusive.
- The court granted the applicant leave to file an appeal against the ruling of the Honourable Kadhi dated 31st October 2025, with the appeal to be filed within 14 days of the delivery of this ruling.
- The court reduced the monthly child maintenance from Kshs.30,000 to Kshs.20,000 pending the appeal, noting that the applicant has custody of two children and had been paying school fees for all children.
Legal Principles
- The court granted leave to appeal out of time, holding that the delay was explained and not inordinate, and the respondent would not be prejudiced. The court relied on principles from Section 79G of the Civil Procedure Act and case law (Susan Ogutu Oloo v Doris Odindo Omolo, 2019; Nicholas Kiptoo Arap Korir Salat v IEBC, 2014).
- The court applied the constitutional principle of the best interest of the child (Article 53 of the Constitution of Kenya) to reduce the child maintenance amount from Kshs.30,000 to Kshs.20,000, ensuring both parents share the financial responsibility for the children.
Precedent Name
- Butt v Rent Tribunal
- Suleiman v Amboseli Resort Limited
- Amal Hauliers Limited v Abdulnasi Abukar Hassan
- Nicholas Kiptoo Arap Korir Salat v IEBC
- Susan Ogutu Oloo & 2 Others v Doris Odindo Omolo
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules
- Constitution of Kenya
Judge Name
Francis Rayola Olel
Passage Text
- 10. This application was filed 90 days after the challenged ruling was delivered and I do find that the delay has been sufficiently explained and is not inordinate.
- 16. At this point, the court cannot consider the merits or otherwise of the Kadhi's finding and in exercising its discretion, must opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589. The scale of justice tilts in favour of both parents being in their children's life and positively contributing for their wellbeing both emotionally and financially. Considering the circumstances herein, completely staying the primary decree, would be to detrimental to the children's welfare and thus order that pending the determination of this appeal, the monthly child maintenance due from the applicant will be reduced to Kshs.20,000/.