(An appeal from the Judgment delivered on 13 th February, 2026 by Hon. S.H. Omar, Ag. Chief Kadhi in Nairobi Kadhi’s Court Case No. E013 of 2025)
1. The parties herein are the biological parents of MAS and AAS (the Minors). A dispute arose over the minors’ custody and their international travel. The respondent sued the appellant at the Kadhis Court in Nairobi, seeking legal and actual custody of the minors. She also sought orders to be allowed to relocate with the minors to Turkey.
2. The Ag Chief Kadhi, in a Judgment delivered on 13th February, 2026 granted the respondent sole legal custody of the minors and granted permission to travel without requiring the appellant’s consent.
3. Aside from the case E013 of 2025, which is the subject of the present appeal, the parties have been involved in another case concerning travel out of the country in Misc. Case No. E1239 of 2023. The orders are stated to have enabled the medical surgery trip for MAS before the Kadhis Court case was filed.
4. The need for international travel for medical review is emphasized as the main reason, aside from the respondent’s desire to pursue a job opportunity in Turkey.
5. The appellant was dissatisfied with the Judgment and has filed the current appeal.
6. Simultaneously, the appellant filed an application dated 18 th February, 2026 in which he seeks an order of stay against the Judgment and an order restraining the respondent from removing the minors from Kenya pending the hearing and determination of the appeal.
7. The ruling date was set during the recess period due to concerns about the medical attention for MAS, who is due to undergo a medical review in Turkey following surgery conducted in December 2023.
8. Having considered the grounds listed in the application, the respective affidavits filed by the parties, and the submissions filed, I identify the key issue for determination as;
What is the best interest of the Minors in the lens of the application now before the court?
9. Courts have created a special jurisprudence on stay of execution in children matters. The prevailing jurisprudence is that the threshold for granting a stay of execution in children matters is slightly different from the threshold applicable in ordinary disputes. The special rule is that courts in children matters are required to exercise extreme caution when considering stay of execution applications. This was restated in BRO v WJNW (Suing as Mother and next friend of DJO (Minor) [2020] eKLR , where the court held as follows;
“38. It is trite that in children matters, courts should exercise extreme caution before granting stay of execution orders. This is because issues of maintenance do affect the welfare and livelihood of a minor. To allow stay will imply stoppage of some sphere of life e.g a child will not eat, dress drink or have shelter. The orders sought against the minor’s mother have a direct negative effect to the welfare of the minor whose interest ranks first in priority to those of the parents.”
10. This special jurisprudence was recently advanced by the court in Akello v Wamuri (Miscellaneous Civil Application E122 of 2022) [2024] KEHC 3610 (KLR) (8 March 2024) (Ruling) , where the court observed as follows;
“26. While considering stay of execution in respect to children matters, beside the above, the Court has to consider the best interest of the child. The applicant is expected to demonstrate that the minors will suffer if a stay is not granted .
27. It is now trite that, in applications for stay in respect of decrees or orders made in matters involving children, the welfare of the children in question be given utmost consideration.”
11. This principle was also alluded to by the court in Bhutt vs. Bhutt, Mombasa HCCC NO. 8 of 2014 (O.S.) where the court observed as follows;
“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 rule 6 of the Civil Procedure Rules, must be complemented by an overriding consideration of the best interest of the child in accordance with the injunction of Article 53(2) of the Constitution... "
12. Aside from the case E013 of 2025, which is the subject of the present appeal, the parties have been involved in another case concerning travel out of the country in Misc. Case No. E1239 of 2023. The orders therein facilitated the travel for the medical surgery.
13. The medical documents confirm that MAS underwent an extensive medical surgery and is scheduled for a review. Granting a stay would delay this medical review, which medical professionals have certified as essential.
14. This circumstance alone takes precedence over the other claims as presented. The minor has a right to timely access to the prescribed medical care, and it is not in the best interest to grant a stay of execution.
15. Any orders concerning movement related to MAS affect AAS, as both minors are in the respondent’s custody. The minors’ best interests are served by avoiding orders that would separate them.
Disposition;
16. The application dated 18th February, 2026, seeking a stay of execution of the Judgment delivered on 13 th February, 2026, is dismissed. I make no order as to costs.
17. The parties were afforded an opportunity to mediate. Since the results have not been communicated before this ruling, I make the following orders pending the hearing and determination of the appeal;
a. In the absence of an agreement on access before the international travel, access is maintained every Saturday from 11.00 am to 4.00 pm with the support of the agreed upon intermediary or any other, as the parties through Counsel may agree upon;
b. The respondent shall ensure that the appellant receives online access, including phone calls to the Children, while she has custody, through an agreed-upon platform;
c. Upon international travel, the respondent shall notify the appellant and the Court in writing;
d. The appellant must give prior notice to the respondent of any planned visit to the destination country. The appellant will also cover his related travel and the visit’s incidental expenses;
e. The respondent shall submit a report within 30 days of the international travel, providing an update on the children’s welfare and support in the destination country, including the medical report for MAS.
18. The appeal shall be heard on a priority basis, and to this end, the appellant shall file the record of appeal within 21 days.
19. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 01 ST day of APRIL, 2026.
HON C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Mr. Injairu Advocate for the Appellant
Mr. Soud Advocate for the Respondent
1. The parties herein are the biological parents of MAS and AAS (the Minors). A dispute arose over the minors’ custody and their international travel. The respondent sued the appellant at the Kadhis Court in Nairobi, seeking legal and actual custody of the minors. She also sought orders to be allowed to relocate with the minors to Turkey.
2. The Ag Chief Kadhi, in a Judgment delivered on 13th February, 2026 granted the respondent sole legal custody of the minors and granted permission to travel without requiring the appellant’s consent.
3. Aside from the case E013 of 2025, which is the subject of the present appeal, the parties have been involved in another case concerning travel out of the country in Misc. Case No. E1239 of 2023. The orders are stated to have enabled the medical surgery trip for MAS before the Kadhis Court case was filed.
4. The need for international travel for medical review is emphasized as the main reason, aside from the respondent’s desire to pursue a job opportunity in Turkey.
5. The appellant was dissatisfied with the Judgment and has filed the current appeal.
6. Simultaneously, the appellant filed an application dated 18 th February, 2026 in which he seeks an order of stay against the Judgment and an order restraining the respondent from removing the minors from Kenya pending the hearing and determination of the appeal.
7. The ruling date was set during the recess period due to concerns about the medical attention for MAS, who is due to undergo a medical review in Turkey following surgery conducted in December 2023.
8. Having considered the grounds listed in the application, the respective affidavits filed by the parties, and the submissions filed, I identify the key issue for determination as;
What is the best interest of the Minors in the lens of the application now before the court?
9. Courts have created a special jurisprudence on stay of execution in children matters. The prevailing jurisprudence is that the threshold for granting a stay of execution in children matters is slightly different from the threshold applicable in ordinary disputes. The special rule is that courts in children matters are required to exercise extreme caution when considering stay of execution applications. This was restated in BRO v WJNW (Suing as Mother and next friend of DJO (Minor) [2020] eKLR , where the court held as follows;
“38. It is trite that in children matters, courts should exercise extreme caution before granting stay of execution orders. This is because issues of maintenance do affect the welfare and livelihood of a minor. To allow stay will imply stoppage of some sphere of life e.g a child will not eat, dress drink or have shelter. The orders sought against the minor’s mother have a direct negative effect to the welfare of the minor whose interest ranks first in priority to those of the parents.”
10. This special jurisprudence was recently advanced by the court in Akello v Wamuri (Miscellaneous Civil Application E122 of 2022) [2024] KEHC 3610 (KLR) (8 March 2024) (Ruling) , where the court observed as follows;
“26. While considering stay of execution in respect to children matters, beside the above, the Court has to consider the best interest of the child. The applicant is expected to demonstrate that the minors will suffer if a stay is not granted .
27. It is now trite that, in applications for stay in respect of decrees or orders made in matters involving children, the welfare of the children in question be given utmost consideration.”
11. This principle was also alluded to by the court in Bhutt vs. Bhutt, Mombasa HCCC NO. 8 of 2014 (O.S.) where the court observed as follows;
“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 rule 6 of the Civil Procedure Rules, must be complemented by an overriding consideration of the best interest of the child in accordance with the injunction of Article 53(2) of the Constitution... "
12. Aside from the case E013 of 2025, which is the subject of the present appeal, the parties have been involved in another case concerning travel out of the country in Misc. Case No. E1239 of 2023. The orders therein facilitated the travel for the medical surgery.
13. The medical documents confirm that MAS underwent an extensive medical surgery and is scheduled for a review. Granting a stay would delay this medical review, which medical professionals have certified as essential.
14. This circumstance alone takes precedence over the other claims as presented. The minor has a right to timely access to the prescribed medical care, and it is not in the best interest to grant a stay of execution.
15. Any orders concerning movement related to MAS affect AAS, as both minors are in the respondent’s custody. The minors’ best interests are served by avoiding orders that would separate them.
Disposition;
16. The application dated 18th February, 2026, seeking a stay of execution of the Judgment delivered on 13 th February, 2026, is dismissed. I make no order as to costs.
17. The parties were afforded an opportunity to mediate. Since the results have not been communicated before this ruling, I make the following orders pending the hearing and determination of the appeal;
a. In the absence of an agreement on access before the international travel, access is maintained every Saturday from 11.00 am to 4.00 pm with the support of the agreed upon intermediary or any other, as the parties through Counsel may agree upon;
b. The respondent shall ensure that the appellant receives online access, including phone calls to the Children, while she has custody, through an agreed-upon platform;
c. Upon international travel, the respondent shall notify the appellant and the Court in writing;
d. The appellant must give prior notice to the respondent of any planned visit to the destination country. The appellant will also cover his related travel and the visit’s incidental expenses;
e. The respondent shall submit a report within 30 days of the international travel, providing an update on the children’s welfare and support in the destination country, including the medical report for MAS.
18. The appeal shall be heard on a priority basis, and to this end, the appellant shall file the record of appeal within 21 days.
19. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 01 ST day of APRIL, 2026.
HON C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Mr. Injairu Advocate for the Appellant
Mr. Soud Advocate for the Respondent