1. Before this Court is the Notice of Motion dated 18th June 2026. Although the application is framed principally as one seeking a stay of proceedings before the Children's Court, the substantive prayers also seek a stay of the ruling delivered on 28th April 2026 pending the hearing and determination of this appeal.
2. The application is supported by the affidavit of the Appellant sworn on 18th June 2026 and a further supporting affidavit, and is opposed by the Replying Affidavit sworn by the Respondent on 8th July 2026. The parties also filed written submissions.
3. The applicant contends that unless the Children's Court proceedings are stayed, the appeal will be rendered nugatory. The respondent opposes the application on the grounds that it is intended merely to delay the proceedings before the Children's Court, that the applicant has failed to comply with the orders of that court, and that the children's best interests demand the expeditious determination of the proceedings.
4. Having considered the pleadings and submissions, it is apparent that the application is inelegantly drafted. While it is expressed as one seeking a stay of proceedings, it also seeks a stay of the ruling of the Children's Court. The two remedies are distinct. A stay of proceedings suspends the continuation of proceedings before the trial court, whereas a stay of execution suspends the enforcement of an executable decree or order. The applicable principles are not identical and the relief sought must be clearly identified.
5. Be that as it may, whether the application is considered as one for stay of proceedings or one for stay of execution, the applicable principles remain well settled. Under Order 42 Rule 6 of the Civil Procedure Rules, the grant of stay is discretionary and an applicant must satisfy the court that sufficient cause exists to warrant the exercise of that discretion. In the case of stay of execution, the applicant must further demonstrate substantial loss, that the application was brought without unreasonable delay and, where appropriate, furnish security for the due performance of the decree. Where a stay of proceedings is sought, the court exercises its discretion sparingly, bearing in mind that such an order has the effect of halting the determination of proceedings before the trial court and should only be granted where the interests of justice plainly require it.
6. I am not persuaded that the applicant has satisfied the applicable threshold. In the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR, Gikonyo J held that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case”.
7. That has not been shown. Rather, the principal ground advanced is that if the Children's Court proceeds with the hearing, the appeal will be rendered nugatory. Beyond that assertion, no sufficient factual basis has been laid to demonstrate the prejudice that would be occasioned if the proceedings continue or the impugned orders remain in force. Mere apprehension that an appeal may be overtaken by events does not, without more, justify the grant of stay.
8. Equally, to the extent that the application seeks a stay of execution, the applicant has not demonstrated the substantial loss he stands to suffer if the orders of the Children's Court remain in force pending the determination of the appeal. Substantial loss is the cornerstone upon which an application under Order 42 Rule 6 rests. The applicant has not identified any loss incapable of being remedied should the appeal ultimately succeed. Nor has any proposal for security been placed before the Court.
9. This appeal arises from proceedings under the Children Act. In matters concerning children, the Court must remain guided by Article 53(2) of the Constitution and the provisions of the Children Act, which require that the best interests of the child be the paramount consideration in every matter affecting a child. The applicant has not demonstrated that staying either the proceedings or the implementation of the impugned orders would better serve those best interests than allowing the Children's Court to proceed expeditiously with the matter.
10. In the premises, I find that the applicant has failed to establish sufficient cause for the grant of either a stay of proceedings or a stay of execution. The threshold prescribed under Order 42 Rule 6 of the Civil Procedure Rules has not been met.
11. Accordingly, the Notice of Motion dated 18th June 2026 is without merit and is hereby dismissed with costs.
2. The application is supported by the affidavit of the Appellant sworn on 18th June 2026 and a further supporting affidavit, and is opposed by the Replying Affidavit sworn by the Respondent on 8th July 2026. The parties also filed written submissions.
3. The applicant contends that unless the Children's Court proceedings are stayed, the appeal will be rendered nugatory. The respondent opposes the application on the grounds that it is intended merely to delay the proceedings before the Children's Court, that the applicant has failed to comply with the orders of that court, and that the children's best interests demand the expeditious determination of the proceedings.
4. Having considered the pleadings and submissions, it is apparent that the application is inelegantly drafted. While it is expressed as one seeking a stay of proceedings, it also seeks a stay of the ruling of the Children's Court. The two remedies are distinct. A stay of proceedings suspends the continuation of proceedings before the trial court, whereas a stay of execution suspends the enforcement of an executable decree or order. The applicable principles are not identical and the relief sought must be clearly identified.
5. Be that as it may, whether the application is considered as one for stay of proceedings or one for stay of execution, the applicable principles remain well settled. Under Order 42 Rule 6 of the Civil Procedure Rules, the grant of stay is discretionary and an applicant must satisfy the court that sufficient cause exists to warrant the exercise of that discretion. In the case of stay of execution, the applicant must further demonstrate substantial loss, that the application was brought without unreasonable delay and, where appropriate, furnish security for the due performance of the decree. Where a stay of proceedings is sought, the court exercises its discretion sparingly, bearing in mind that such an order has the effect of halting the determination of proceedings before the trial court and should only be granted where the interests of justice plainly require it.
6. I am not persuaded that the applicant has satisfied the applicable threshold. In the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR, Gikonyo J held that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case”.
7. That has not been shown. Rather, the principal ground advanced is that if the Children's Court proceeds with the hearing, the appeal will be rendered nugatory. Beyond that assertion, no sufficient factual basis has been laid to demonstrate the prejudice that would be occasioned if the proceedings continue or the impugned orders remain in force. Mere apprehension that an appeal may be overtaken by events does not, without more, justify the grant of stay.
8. Equally, to the extent that the application seeks a stay of execution, the applicant has not demonstrated the substantial loss he stands to suffer if the orders of the Children's Court remain in force pending the determination of the appeal. Substantial loss is the cornerstone upon which an application under Order 42 Rule 6 rests. The applicant has not identified any loss incapable of being remedied should the appeal ultimately succeed. Nor has any proposal for security been placed before the Court.
9. This appeal arises from proceedings under the Children Act. In matters concerning children, the Court must remain guided by Article 53(2) of the Constitution and the provisions of the Children Act, which require that the best interests of the child be the paramount consideration in every matter affecting a child. The applicant has not demonstrated that staying either the proceedings or the implementation of the impugned orders would better serve those best interests than allowing the Children's Court to proceed expeditiously with the matter.
10. In the premises, I find that the applicant has failed to establish sufficient cause for the grant of either a stay of proceedings or a stay of execution. The threshold prescribed under Order 42 Rule 6 of the Civil Procedure Rules has not been met.
11. Accordingly, the Notice of Motion dated 18th June 2026 is without merit and is hereby dismissed with costs.