REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
APPELLATE DIVISION
CIVIL APPEAL NO. E002 OF 2026
BOKU BODHA……………….…………..………APPELLANT/APPLICANT
VERSUS
HALIMA ANNO ABDI…..…………………………………. RESPONDENT
R U L I N G
A. Introduction
1. The application before this court for determination is the Notice of Motion application dated 6 th January 2026 brought pursuant to provisions of Section 1A, 1B, 3A, 79G of the Civil Procedure Act, Order 42 Rule 6(2), Order 51 Rule 1 of the Civil Procedure Rules, Section 91 of the Children’s Act, 2022 and Articles 50 and 53 of the Constitution 2010 and all other enabling provisions of law. The applicant prays for orders that;
a) Spent.
b) Spent.
c) That this Honourable court be pleased to issue a temporary stay order against execution of the ruling of the Honourable Kadhi in Matrimonial suit No E016 of 2023 delivered on 15 th December 2025 pending the hearing and determination of the current Appeal.
d) That costs of this Application be provided for.
2. This application is supported by the grounds on the face of the said application the supporting affidavit of the applicant, dated 6 th January 2026, where he avers that he was married to the respondent for a few months under Islamic law, were blessed with one child and later divorced, which was sanctified by the Kadhi’s court judgment dated 8 th December 2023, where he was also ordered to provide monthly maintenance of Kshs.20,000/= for the said child.
3. Later through his review application dated 18 th August 2025, he did apply to have the said maintenance order reviewed, on the basis that it was unsustainable as he had five other children to maintain and also sought for access/visitation rights, which the respondent had denied him from 2023. Vide a ruling dated 15 th December 2025 the learned Kadhi did partially allow his review application and reduced the maintenance sum to Kshs 15,000/= monthly, which was still high/unfair as the said court had also wrongly heaped all the child’s maintenance responsibility on him without sharing it out equally between him and the respondent as is provided for in law.
4. It was also the applicant’s contention that the said trial court lacked jurisdiction to deal with children’s matter and thus its finding touching on the minor’s welfare was void abinitio. The Applicant thus urged the court to grant the orders sought in the interest of justice pending appeal, in order not to render the his appeal to be nugatory.
5. The Respondent opposed this application through her preliminary objection, dated 20.01.2026, which was dismissed vide this court’s ruling dated 22.04.2026. On 14.05.2026 the court granted them 7 more days to file response, but as of 21.05.2026 none had been filed on the CTS Portal.
B. Analysis & Determination
6. I have carefully considered the Application, and the affidavit filed in support thereto. Though unopposed, it touches on the interest of the child and thus this court will proceed to determine its merits or lack thereof.
7. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant. See Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR & Butt Vs Rent Tribunal (1982) KLR 417.
8. To the foregoing I would add that an order of stay of stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the same, shall also consider the overriding objective stipulated under sections 1A and 1B of the Civil Procedure Act , which enables court give effect to its overriding objective, while in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.
9. The court, in considering this kind of Application, where the children’s rights are involved, has to observe the cardinal provisions of Article 53,(1),(c) & (2) of the Constitution of Kenya that place the best interest of the child in the forefront of its decision and will not strictly adhere to the provision of Order 42 Rule 6 of the Civil Procedure Rules in determining whether or not an order of stay ought to issue
10. The pleadings herein reveal that the parties herein are blessed with one child, and the learned Kadhi did order the appellant to maintain the said child without outlining the corresponding duties/ responsibility of the respondent. This prima facie raised a triable issue worthy of this court’s consideration.
DISPOSITITON
11. The upshot is that the application dated 29 th July 2025 is partially allowed;
(a) In exercise of this courts discretion, while placing the interest of the child at the forefront it would be proper not to stay the Kadhi’s ruling on monthly maintenance but the same will be reduced to Kshs.10,000/= monthly pending hearing and determination of this Appeal.
(b) The Appellant will also cater for the minor’s health care needs and all schooling needs, while the respondent will cater for the child’s other basic needs.
(c) The costs of this Application will be in the cause .
12. The Appeal be fast-tracked and it be heard within the next six months.
13. It is so ordered .
READ, SIGNED and DELIVERED virtually at MARSABIT on this 21 ST day of MAY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 21 ST day of MAY, 2026.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
………………………………….Court Assistant
mbt hca no. e002 of 2026 2
IN THE HIGH COURT OF KENYA AT MARSABIT
APPELLATE DIVISION
CIVIL APPEAL NO. E002 OF 2026
BOKU BODHA……………….…………..………APPELLANT/APPLICANT
VERSUS
HALIMA ANNO ABDI…..…………………………………. RESPONDENT
R U L I N G
A. Introduction
1. The application before this court for determination is the Notice of Motion application dated 6 th January 2026 brought pursuant to provisions of Section 1A, 1B, 3A, 79G of the Civil Procedure Act, Order 42 Rule 6(2), Order 51 Rule 1 of the Civil Procedure Rules, Section 91 of the Children’s Act, 2022 and Articles 50 and 53 of the Constitution 2010 and all other enabling provisions of law. The applicant prays for orders that;
a) Spent.
b) Spent.
c) That this Honourable court be pleased to issue a temporary stay order against execution of the ruling of the Honourable Kadhi in Matrimonial suit No E016 of 2023 delivered on 15 th December 2025 pending the hearing and determination of the current Appeal.
d) That costs of this Application be provided for.
2. This application is supported by the grounds on the face of the said application the supporting affidavit of the applicant, dated 6 th January 2026, where he avers that he was married to the respondent for a few months under Islamic law, were blessed with one child and later divorced, which was sanctified by the Kadhi’s court judgment dated 8 th December 2023, where he was also ordered to provide monthly maintenance of Kshs.20,000/= for the said child.
3. Later through his review application dated 18 th August 2025, he did apply to have the said maintenance order reviewed, on the basis that it was unsustainable as he had five other children to maintain and also sought for access/visitation rights, which the respondent had denied him from 2023. Vide a ruling dated 15 th December 2025 the learned Kadhi did partially allow his review application and reduced the maintenance sum to Kshs 15,000/= monthly, which was still high/unfair as the said court had also wrongly heaped all the child’s maintenance responsibility on him without sharing it out equally between him and the respondent as is provided for in law.
4. It was also the applicant’s contention that the said trial court lacked jurisdiction to deal with children’s matter and thus its finding touching on the minor’s welfare was void abinitio. The Applicant thus urged the court to grant the orders sought in the interest of justice pending appeal, in order not to render the his appeal to be nugatory.
5. The Respondent opposed this application through her preliminary objection, dated 20.01.2026, which was dismissed vide this court’s ruling dated 22.04.2026. On 14.05.2026 the court granted them 7 more days to file response, but as of 21.05.2026 none had been filed on the CTS Portal.
B. Analysis & Determination
6. I have carefully considered the Application, and the affidavit filed in support thereto. Though unopposed, it touches on the interest of the child and thus this court will proceed to determine its merits or lack thereof.
7. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant. See Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR & Butt Vs Rent Tribunal (1982) KLR 417.
8. To the foregoing I would add that an order of stay of stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the same, shall also consider the overriding objective stipulated under sections 1A and 1B of the Civil Procedure Act , which enables court give effect to its overriding objective, while in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.
9. The court, in considering this kind of Application, where the children’s rights are involved, has to observe the cardinal provisions of Article 53,(1),(c) & (2) of the Constitution of Kenya that place the best interest of the child in the forefront of its decision and will not strictly adhere to the provision of Order 42 Rule 6 of the Civil Procedure Rules in determining whether or not an order of stay ought to issue
10. The pleadings herein reveal that the parties herein are blessed with one child, and the learned Kadhi did order the appellant to maintain the said child without outlining the corresponding duties/ responsibility of the respondent. This prima facie raised a triable issue worthy of this court’s consideration.
DISPOSITITON
11. The upshot is that the application dated 29 th July 2025 is partially allowed;
(a) In exercise of this courts discretion, while placing the interest of the child at the forefront it would be proper not to stay the Kadhi’s ruling on monthly maintenance but the same will be reduced to Kshs.10,000/= monthly pending hearing and determination of this Appeal.
(b) The Appellant will also cater for the minor’s health care needs and all schooling needs, while the respondent will cater for the child’s other basic needs.
(c) The costs of this Application will be in the cause .
12. The Appeal be fast-tracked and it be heard within the next six months.
13. It is so ordered .
READ, SIGNED and DELIVERED virtually at MARSABIT on this 21 ST day of MAY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 21 ST day of MAY, 2026.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
………………………………….Court Assistant
mbt hca no. e002 of 2026 2