BERE J: This application was brought on a certificate of
urgency and it seeks to stay execution of a certificate of
confirmation of arrear maintenance issued in terms of section 23 (b)
of the Maintenance Act1 pending determination of the
appeal filed in this court under HCA 117/15 challenging the
confirmation of the computation of arrear maintenance.
The facts of this case which are not in dispute are as follows;
Sometime in December 2012 the respondent who is on separation from
the applicant got an order for maintenance to the tune of $150 per
month. In January 2014 the respondent sought and obtained a
variation of the order of maintenance from $150 per month to $280 per
month under case number M 809/12. The applicant has been paying the
adjusted amount of $280 per month ever since variation was effected.
Despite the applicant having been religiously paying the maintenance
amount, in September 2015 the Maintenance Court went on to issue a
certificate of confirmation that the applicant had accumulated arrear
maintenance to the tune of $3 000 based the erroneous assumption that
the applicant had defaulted in the payment of $150 per month.
The computation clearly failed to appreciate that there was no
separate order for $150 per month but that this order had been built
into the adjusted sum of $280 per month which the applicant has been
paying ever since the variation was effected.
When the applicant sought to have this normally corrected in the
lower court the learned magistrate surprisingly felt that correcting
the error amounted to him reviewing the lower court's earlier
judgment and noted in its own judgment that the simple error could
only be corrected by the High Court. Strange reasoning indeed!
It is this accepted clear error by the lower court which has
satisfied me that the applicant has established a prima facie
case warranting the issuance of a provisional order.
The applicant must continue to pay the adjusted maintenance amount
of $280 per month until such time his appeal is heard.
I must note that it is most unusual that the lower court would
accede to the prosecution of the applicant for the error that is
there for all to see, an error which the lower court itself concedes
to.
It was precisely for these reasons that I felt inclined to grant the
provisional order of the 2nd of February 2016 without
hearing the parties because the error had been conceded to by the
court a quo.
In granting this provisional order I used my discretion which flows
from Order 32 Rule 244, High Court Rules, 1971, which rule does not
require the court to always hear the parties before granting
what it perceives to be an appropriate order.
Makuku Law Firm, applicant's legal practitioners
1. Chapter 5:09
