1. The Respondent filed a matrimonial cause before the Kadhi’s Court on 22nd August 2024. The Hon Kadhi, upon considering the submissions of the parties, delivered a judgment on 4th November 2024 vide which he:-
(1) Dissolve the marriage between the Respondent and the Appellant, celebrated on 27th March 2009, with effect from 4th November 2024, and ordered that the divorce certificate be issued;
(2) Ordered that dowry of Kes.400,000.00, which he found as not having been paid, to be paid “in form of assets”;
(3) Granted the Respondent full custody of the children;
(4) Gave the Appellant the right to visit and access the children during school holidays and on alternative weekends from 11 am until 6 pm;
(5) Ordered the Appellant to pay Kes.60,000.00 on or before the 5th day of each month towards the maintenance of the children;
(6) Ordered that “the Petitioner and the Respondent shall provide 30% respectively towards the school fees and other related expenses”; and
(7) Ordered that the Appellant herein shall pay the cost of the suit.
2. Being aggrieved with the decision, the Appellant filed an appeal to this Court vide a Memorandum of Appeal dated 8th November 2024. Among the grounds of appeal were that the High Court at Meru was seized of the matter. Hence, the Kadhi Court had no jurisdiction, that the Court below was wrong to find that cruelty had been proved “despite the Respondent not adducing any scintilla of evidence to corroborate and support her allegation of cruelty” and that the said Court erred by ordering him to pay Kes.60,000.00 towards the maintenance of children without first directing him to file an affidavit of means.
3. The Appellant filed a Notice of Motion application dated 8th November 2024 vide which he sought the following orders:-
1. Spent;
2. Spent;
3. Pending the hearing and determination of the appeal, this Court be pleased to stay the execution of the judgment of the Honourable Abdiaziz Maalim Mohamed delivered on 4th November 2024 in Mombasa Kadhi’s Court Divorce cause no E301 of 2024; SAS vs AA; and
4. The cost of this application be provided.
4. The Respondent opposed the application through a Replying Affidavit sworn on 11th November 2024 in which she deposed inter alia that:-
1. She filed the divorce cause in Mombasa on 22nd August 2024 and that judgment was delivered on 4th November 2024;
2. Meru HCCA No E017 of 2024 was filed at the Meru High Court on 9th September 2024 against the decision of the CM Court in CM Children Cause No E040 of 2024;
3. The three matters mentioned above were similar in substance and involved the same issues and the same subject matter, including the custody of the four minor children;
4. The Meru Children's Cause was filed after the Kadhi Divorce case was filed; and
5. It wasn’t true that the High Court at Meru had divested the Kadhi’s Court of jurisdiction to hear the matter.
5. The Respondent further deposed that the Appellant abducted the four children and took them to Meru. Upon the happening of the said event, she reported the abduction to the police and the sub-county children officer.
6. It was averred that it hadn’t been shown what substantial loss the Appellant would suffer if the orders sought were not granted.
7. The Appellant filed a Supplementary Affidavit sworn on 20th December 2024, in which he, inter alia, stated that the Kadhi Court had no jurisdiction to hear and determine children's matters and exceeded its jurisdiction when it did so. He accused the Respondent of having filed Tononoka Children Case No E366 of 2024 on 28th August 2024, which had since been stayed and of not disclosing the said fact.
8. The Appellant averred that orders were issued by the Hon. Mr Justice Heston Nyaga, on 20th November 2024, which granted him custody of the children pending the hearing and determination of the Meru Children case No E040 of 2024. The said order was premised on the fact that the Court interviewed the two eldest children and considered the report of the Children’s Officer. He denied that the children were abducted.
9. The Appellant accused the Respondent of not being truthful.
10. The matter was canvassed by way of written submissions. The Appellant’s submissions are dated 20th December 2024. It was urged that in deciding the matter, I ought to consider whether:-
1. The appeal was arguable;
2. Whether the Appellant would suffer substantial loss;
3. Whether the application was made without undue delay; and
4. What would be in the best interest of the children?
11. On the arguability of the appeal, it was urged that the learned Kadhi disregarded the fact that the High Court at Meru was already seized of the matter and ignored the preliminary objection raised, challenging its jurisdiction. Further, it was submitted that whether or not the Appellant had been cruel or if he deserted the Respondent were arguable points. Lastly, it was urged that the Court was wrong to order the Appellant to pay Kes.60,000.00 per month without directing him to file an affidavit of means.
12. On whether the Appellant would suffer a substantial loss, it was submitted that the Respondent would seek to enforce the orders of the Hon Kadhi, notwithstanding the fact that the Meru High Court issued orders granting the Appellant the custody of the Children. Enforcement of Hon Kadhi’s orders, it was urged, would cause substantial loss to the Appellant.
13. It was urged that the application was filed without undue delay since the judgment was delivered on 4th November 2024, whereas the application was filed on 8th November 2024.
14. Lastly it was urged that the best interest of the children would be served by issuing the orders sought.
15. The submissions of the Respondent are dated 23rd December 2024. The Respondent relied on Order 42 Rule 6 of the Civil Procedure Rules and submitted that for stay to issue, the following had to be shown:-
1. That there would be a substantial loss unless the stay were grated;
2. The application was filed without undue delay; and
3. Such security for the due performance of such decree or order as may ultimately be binding on the Applicant had been given.
16. On the first test, counsel for the Respondent urged that no evidence of substantial loss had been given in the affidavits sworn on 8th November and 20th December 2024. Counsel, relying on the decision of Platt, JA in Kenya Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR in which the learned Judge of Appeal stated that:-
“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss, in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”
17. Further reliance was placed on the decisions of the Court on Century Oil Trading Co. Ltd vs Kenya Shell Ltd; Nairobi (Milimani) HCMCA No 1561 of 2007 and Sumvee Trustees Ltd vs Guardian Bank Ltd; Nairobi Milimani HCCC NO 795 OF 1997.
18. On whether there had been an unreasonable delay, counsel submitted that there hadn’t been such a delay.
19. Regarding the security for the due performance of such orders as may ultimately be binding on the Appellant, it was urged that he hadn’t offered any security.
20. Counsel for the Respondent urged that the children were of tender age. That being the case, their best interest would be served if their custody remained with the mother. Reliance was placed in the decision of Kimaru, J (as he then was) in DKN vs JKN [2011]eKLR in which the learned judge stated that:-
“The general rule is that where the custody of a child of tender years as defined by section 2 of the Children Act is in issue, the mother of the child should have custody…”
21. Counsel submitted that the Kadhi’s Court had jurisdiction to determine custody of children whose parents are Muslims. Relying on several decided cases, it was submitted that custody and maintenance of children fell within “persona status” and that the Kadhi Court had jurisdiction.
22. Based on the foregoing, it was urged that the motion be dismissed with costs.
23. I have considered the Notice of Motion dated 8th November 2024, the Replying Affidavit and Supplementary Affidavit, and the submissions filed by the parties hereto.
24. Since what is sought is a stay of execution pending appeal, I must have regard to Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, which provides as follows:-
“(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
25. From the foregoing, it is evident that it must be shown by the Appellant that:-
1. He will suffer substantial loss unless a stay is granted;
2. The Application was filed without undue delay; and
3. Security for the due performance of any order that may ultimately be binding on the Appellant has been given.
26. In addition to the foregoing, since this is a matter regarding, in part, the best interest of children, regard must also be had to Article 53 (2) of the Constitution of Kenya, 2010, and Section 8 of the Children Act, 2022.
27. Article 53(2) of the Constitution of Kenya, 2010 provides that:-
“(2) A child’s best interests are of paramount importance in every matter concerning the child.”
Section 8 of the Children
28. The provision of the Constitution is given effect by section 8 of the Children Act, 2022, which provides in part that:-
“(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity…”
29. Before considering whether the test in order 42 Rule 6 has been met, I note that on 19th November 2024, my brother judge “upon hearing the counsels” ordered in paragraphs 5 and 6 of the order issued on 20th November 2024 as follows:-
“5. In the interim and before the suit in the Children's Court Case No E040 of 2024 is heard and determined, the Appellant shall have physical custody of the Children; and
6. I am reluctant to give further orders. Any other issue will be dealt with by the trial Court. (It is to be noted that the Court has interviewed the two eldest children and noted their wishes. It is with this in mind that I order that the status quo be maintained).”
30. It is reasonable to assume that since the counsels for both parties were (presumably) present before the Hon., Mr. Justice H. Nyaga, he was made aware of the decision of the Hon. Kadhi and that he issued the said orders knowingly. Given that very fact and also that his lordship and I have equal status it is not necessary for me to issue further orders regarding custody of the Children. Those made by his lordship would appear, to me, to be sufficient regarding custody of the children. This Court won't engage in a fatuous, pointless exercise by issuing further orders when similar orders made by a Court with jurisdiction similar to this Court already exist.
31. In my view, it will be necessary to avoid a situation where two opposing decisions regarding the same matter are made by two courts of equal status. Any party aggrieved by the decision of the Meru High Court ought, therefore, to seek a review of the said decision or appeal against it.
32. Having made the above observation, I note that there are matters that the Children's Court has no jurisdiction to determine. These are:-
1. Whether the Kadhi Court made the correct finding on the divorce; and
2. Whether the Kadhi Court has jurisdiction to determine custody and maintenance of children, either in a stand-alone suit or as part of matrimonial proceedings.
33. Whereas these are arguable points, I must nevertheless use the test prescribed in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, to determine whether a stay ought to be issued on these latter grounds.
34. The only order in respect of the divorce proceedings capable of being executed is the payment of the dowry the court below found as having not been paid. To succeed, the Appellant needed to show that he would suffer substantial loss if the payment was made. The burden of proof was on him.
35. What amounts to substantial loss has been discussed in very many decisions of the courts of records. In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR the Court stated as follows:-
“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
36. Execution has as often been declared is a lawful process. Execution alone is not sufficient ground to warrant the issuance of a stay of execution. I am guided by the decision of Muchemi, J in Chege v Gachora [2024] KEHC 1994 (KLR), where the learned judge expressed herself as follows:-
“The applicant contends that he stands to suffer irreparably if the respondent levies execution against him. The respondent argues that the applicant has not demonstrated the substantial loss he stands to suffer. On perusal of the applicant’s affidavit, I have noted that the applicant has not demonstrated how he stands to suffer substantial loss if the orders sought are not granted. The applicant merely states that he is exposed to execution of the decree unless a stay is granted and further that the intended appeal shall be rendered nugatory if stay is not granted. Only in his submissions does the applicant state that he stands to suffer irreparable damage as the respondent will not be financially able to repay back the decretal sum.”
37. In my view, the Appellant did not show that he would suffer substantial loss if the dowry were paid back to the Respondent.
38. Since the requirements are conjunctive, that is to say, that all the ingredients must be present for the orders of stay of execution to be issued, and not disjunctive, in the absence of proof of substantial loss, it is not necessary that I consider the other two grounds.
39. As this is a children's matter, I make no orders as to costs.
40. It would seem to me that in the interest of justice, this appeal ought to be heard and determined without delay.
41. In the interest of justice and for quick determination of this matter, I order as follows:-
1. The Record of Appeal to be filed within 30 days of today; and
2. Mention for directions on 6th February 2025.
42. Orders accordingly.
Dated and signed at Mombasa this 6th day of January 2025. Delivered virtually via Microsoft TEAMS.
(1) Dissolve the marriage between the Respondent and the Appellant, celebrated on 27th March 2009, with effect from 4th November 2024, and ordered that the divorce certificate be issued;
(2) Ordered that dowry of Kes.400,000.00, which he found as not having been paid, to be paid “in form of assets”;
(3) Granted the Respondent full custody of the children;
(4) Gave the Appellant the right to visit and access the children during school holidays and on alternative weekends from 11 am until 6 pm;
(5) Ordered the Appellant to pay Kes.60,000.00 on or before the 5th day of each month towards the maintenance of the children;
(6) Ordered that “the Petitioner and the Respondent shall provide 30% respectively towards the school fees and other related expenses”; and
(7) Ordered that the Appellant herein shall pay the cost of the suit.
2. Being aggrieved with the decision, the Appellant filed an appeal to this Court vide a Memorandum of Appeal dated 8th November 2024. Among the grounds of appeal were that the High Court at Meru was seized of the matter. Hence, the Kadhi Court had no jurisdiction, that the Court below was wrong to find that cruelty had been proved “despite the Respondent not adducing any scintilla of evidence to corroborate and support her allegation of cruelty” and that the said Court erred by ordering him to pay Kes.60,000.00 towards the maintenance of children without first directing him to file an affidavit of means.
3. The Appellant filed a Notice of Motion application dated 8th November 2024 vide which he sought the following orders:-
1. Spent;
2. Spent;
3. Pending the hearing and determination of the appeal, this Court be pleased to stay the execution of the judgment of the Honourable Abdiaziz Maalim Mohamed delivered on 4th November 2024 in Mombasa Kadhi’s Court Divorce cause no E301 of 2024; SAS vs AA; and
4. The cost of this application be provided.
4. The Respondent opposed the application through a Replying Affidavit sworn on 11th November 2024 in which she deposed inter alia that:-
1. She filed the divorce cause in Mombasa on 22nd August 2024 and that judgment was delivered on 4th November 2024;
2. Meru HCCA No E017 of 2024 was filed at the Meru High Court on 9th September 2024 against the decision of the CM Court in CM Children Cause No E040 of 2024;
3. The three matters mentioned above were similar in substance and involved the same issues and the same subject matter, including the custody of the four minor children;
4. The Meru Children's Cause was filed after the Kadhi Divorce case was filed; and
5. It wasn’t true that the High Court at Meru had divested the Kadhi’s Court of jurisdiction to hear the matter.
5. The Respondent further deposed that the Appellant abducted the four children and took them to Meru. Upon the happening of the said event, she reported the abduction to the police and the sub-county children officer.
6. It was averred that it hadn’t been shown what substantial loss the Appellant would suffer if the orders sought were not granted.
7. The Appellant filed a Supplementary Affidavit sworn on 20th December 2024, in which he, inter alia, stated that the Kadhi Court had no jurisdiction to hear and determine children's matters and exceeded its jurisdiction when it did so. He accused the Respondent of having filed Tononoka Children Case No E366 of 2024 on 28th August 2024, which had since been stayed and of not disclosing the said fact.
8. The Appellant averred that orders were issued by the Hon. Mr Justice Heston Nyaga, on 20th November 2024, which granted him custody of the children pending the hearing and determination of the Meru Children case No E040 of 2024. The said order was premised on the fact that the Court interviewed the two eldest children and considered the report of the Children’s Officer. He denied that the children were abducted.
9. The Appellant accused the Respondent of not being truthful.
10. The matter was canvassed by way of written submissions. The Appellant’s submissions are dated 20th December 2024. It was urged that in deciding the matter, I ought to consider whether:-
1. The appeal was arguable;
2. Whether the Appellant would suffer substantial loss;
3. Whether the application was made without undue delay; and
4. What would be in the best interest of the children?
11. On the arguability of the appeal, it was urged that the learned Kadhi disregarded the fact that the High Court at Meru was already seized of the matter and ignored the preliminary objection raised, challenging its jurisdiction. Further, it was submitted that whether or not the Appellant had been cruel or if he deserted the Respondent were arguable points. Lastly, it was urged that the Court was wrong to order the Appellant to pay Kes.60,000.00 per month without directing him to file an affidavit of means.
12. On whether the Appellant would suffer a substantial loss, it was submitted that the Respondent would seek to enforce the orders of the Hon Kadhi, notwithstanding the fact that the Meru High Court issued orders granting the Appellant the custody of the Children. Enforcement of Hon Kadhi’s orders, it was urged, would cause substantial loss to the Appellant.
13. It was urged that the application was filed without undue delay since the judgment was delivered on 4th November 2024, whereas the application was filed on 8th November 2024.
14. Lastly it was urged that the best interest of the children would be served by issuing the orders sought.
15. The submissions of the Respondent are dated 23rd December 2024. The Respondent relied on Order 42 Rule 6 of the Civil Procedure Rules and submitted that for stay to issue, the following had to be shown:-
1. That there would be a substantial loss unless the stay were grated;
2. The application was filed without undue delay; and
3. Such security for the due performance of such decree or order as may ultimately be binding on the Applicant had been given.
16. On the first test, counsel for the Respondent urged that no evidence of substantial loss had been given in the affidavits sworn on 8th November and 20th December 2024. Counsel, relying on the decision of Platt, JA in Kenya Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR in which the learned Judge of Appeal stated that:-
“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss, in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”
17. Further reliance was placed on the decisions of the Court on Century Oil Trading Co. Ltd vs Kenya Shell Ltd; Nairobi (Milimani) HCMCA No 1561 of 2007 and Sumvee Trustees Ltd vs Guardian Bank Ltd; Nairobi Milimani HCCC NO 795 OF 1997.
18. On whether there had been an unreasonable delay, counsel submitted that there hadn’t been such a delay.
19. Regarding the security for the due performance of such orders as may ultimately be binding on the Appellant, it was urged that he hadn’t offered any security.
20. Counsel for the Respondent urged that the children were of tender age. That being the case, their best interest would be served if their custody remained with the mother. Reliance was placed in the decision of Kimaru, J (as he then was) in DKN vs JKN [2011]eKLR in which the learned judge stated that:-
“The general rule is that where the custody of a child of tender years as defined by section 2 of the Children Act is in issue, the mother of the child should have custody…”
21. Counsel submitted that the Kadhi’s Court had jurisdiction to determine custody of children whose parents are Muslims. Relying on several decided cases, it was submitted that custody and maintenance of children fell within “persona status” and that the Kadhi Court had jurisdiction.
22. Based on the foregoing, it was urged that the motion be dismissed with costs.
23. I have considered the Notice of Motion dated 8th November 2024, the Replying Affidavit and Supplementary Affidavit, and the submissions filed by the parties hereto.
24. Since what is sought is a stay of execution pending appeal, I must have regard to Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, which provides as follows:-
“(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
25. From the foregoing, it is evident that it must be shown by the Appellant that:-
1. He will suffer substantial loss unless a stay is granted;
2. The Application was filed without undue delay; and
3. Security for the due performance of any order that may ultimately be binding on the Appellant has been given.
26. In addition to the foregoing, since this is a matter regarding, in part, the best interest of children, regard must also be had to Article 53 (2) of the Constitution of Kenya, 2010, and Section 8 of the Children Act, 2022.
27. Article 53(2) of the Constitution of Kenya, 2010 provides that:-
“(2) A child’s best interests are of paramount importance in every matter concerning the child.”
Section 8 of the Children
28. The provision of the Constitution is given effect by section 8 of the Children Act, 2022, which provides in part that:-
“(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity…”
29. Before considering whether the test in order 42 Rule 6 has been met, I note that on 19th November 2024, my brother judge “upon hearing the counsels” ordered in paragraphs 5 and 6 of the order issued on 20th November 2024 as follows:-
“5. In the interim and before the suit in the Children's Court Case No E040 of 2024 is heard and determined, the Appellant shall have physical custody of the Children; and
6. I am reluctant to give further orders. Any other issue will be dealt with by the trial Court. (It is to be noted that the Court has interviewed the two eldest children and noted their wishes. It is with this in mind that I order that the status quo be maintained).”
30. It is reasonable to assume that since the counsels for both parties were (presumably) present before the Hon., Mr. Justice H. Nyaga, he was made aware of the decision of the Hon. Kadhi and that he issued the said orders knowingly. Given that very fact and also that his lordship and I have equal status it is not necessary for me to issue further orders regarding custody of the Children. Those made by his lordship would appear, to me, to be sufficient regarding custody of the children. This Court won't engage in a fatuous, pointless exercise by issuing further orders when similar orders made by a Court with jurisdiction similar to this Court already exist.
31. In my view, it will be necessary to avoid a situation where two opposing decisions regarding the same matter are made by two courts of equal status. Any party aggrieved by the decision of the Meru High Court ought, therefore, to seek a review of the said decision or appeal against it.
32. Having made the above observation, I note that there are matters that the Children's Court has no jurisdiction to determine. These are:-
1. Whether the Kadhi Court made the correct finding on the divorce; and
2. Whether the Kadhi Court has jurisdiction to determine custody and maintenance of children, either in a stand-alone suit or as part of matrimonial proceedings.
33. Whereas these are arguable points, I must nevertheless use the test prescribed in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, to determine whether a stay ought to be issued on these latter grounds.
34. The only order in respect of the divorce proceedings capable of being executed is the payment of the dowry the court below found as having not been paid. To succeed, the Appellant needed to show that he would suffer substantial loss if the payment was made. The burden of proof was on him.
35. What amounts to substantial loss has been discussed in very many decisions of the courts of records. In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR the Court stated as follows:-
“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
36. Execution has as often been declared is a lawful process. Execution alone is not sufficient ground to warrant the issuance of a stay of execution. I am guided by the decision of Muchemi, J in Chege v Gachora [2024] KEHC 1994 (KLR), where the learned judge expressed herself as follows:-
“The applicant contends that he stands to suffer irreparably if the respondent levies execution against him. The respondent argues that the applicant has not demonstrated the substantial loss he stands to suffer. On perusal of the applicant’s affidavit, I have noted that the applicant has not demonstrated how he stands to suffer substantial loss if the orders sought are not granted. The applicant merely states that he is exposed to execution of the decree unless a stay is granted and further that the intended appeal shall be rendered nugatory if stay is not granted. Only in his submissions does the applicant state that he stands to suffer irreparable damage as the respondent will not be financially able to repay back the decretal sum.”
37. In my view, the Appellant did not show that he would suffer substantial loss if the dowry were paid back to the Respondent.
38. Since the requirements are conjunctive, that is to say, that all the ingredients must be present for the orders of stay of execution to be issued, and not disjunctive, in the absence of proof of substantial loss, it is not necessary that I consider the other two grounds.
39. As this is a children's matter, I make no orders as to costs.
40. It would seem to me that in the interest of justice, this appeal ought to be heard and determined without delay.
41. In the interest of justice and for quick determination of this matter, I order as follows:-
1. The Record of Appeal to be filed within 30 days of today; and
2. Mention for directions on 6th February 2025.
42. Orders accordingly.
Dated and signed at Mombasa this 6th day of January 2025. Delivered virtually via Microsoft TEAMS.