'
There are two applications for determination before this court i.e Motions dated 18.4.24 filed by the applicant/father herein and the one dated 23.5.25 filed by the respondent/ mother .
The application dated 18.4.25 seeks : Spent
Spent
That This Honourable court be pleased to grant leave and extend time to the applicant to file his appeal out of time in respect to judgment delivered on 7.2.25 in Kisii Magistrate’s Court Children case no. case no. E071 of 2022.
That the Honourable court be pleased to stay the execution of the judgment in judgment delivered on 7.2.25 in Kisii Magistrate’s Court Children case no. E071 of 2022.
Costs be in the cause .
The application is based on the grounds that ;
Judgment in the said lower court filed was delivered on 7.2.25 .
The case pended judgment for about one year from 8.3.24 when parties closed their cases . That vide mail from the court dated 11.12.24 parties were informed that judgment had been scheduled for delivery on 28.1.24. on 28.1.25 parties received another email that judgment has been rescheduled to 30.1.25. The judgment was not delivered and Mr Magara advocate protested via email .
The applicant followed up on the issue and he was informed by the court assistant and court administrator that judgment would be delivered on notice.
On 14.4.25 counsel for the applicant was served with a draft decree and that is when he realized that judgment had already been delivered. On checking the case tracking system he found that judgment had been delivered on 7.2.25 and uploaded in the system on 13.3.25.
That the judgment was delivered without notice .
That the minor will suffer irreparably as he will be separated from the father who is the only parent in the country
That stability is in the best interest of the child .
That the intended appeal raises triable issues .
It is in the interest of justice that the orders sought be granted.
The respondent filed a relying affidavit in opposition to the said application. She termed it frivolous ,vexacious and malicious . She said that the application is i aimed at frustrating execution process in the lower court and that the intended appeal is an after thought meant to evade the contempt sentence of 2 years imprisonment imposed by the lower court.
The mother/applicant later filed application dated 23.5.25 seeking; That the honorable court be pleased to review the orders issued on the 8 th day of may 2025 with a view of canceling and/or setting the same aside.
That the pending hearing and determination of this suit, the court does issue any other orders/directions towards the best interest of the child.
The father /respondent filed grounds of opposition dated to the same listing the following ; The aplication is scandalous, frivolous ,vexacious and thus an absue of the proceess of the court.
That the application dated 18.5.25 was duly served and acknowleged , but no response was filed.
The decreee was issued on 9.5.25 after the interim stay of exceution of the said decreewas granted.
That contempt proceedings do not therefore arise .
That the application dated 23.5.25 ought to be dismissed ex Debito Justitae .
Background
The Brian Misaro Ratemo and Elizabeth Gesare Mokaya are the biological father and mother of L.M the subject herein aged about 5 ½ . They lived together as husband and wife for the said child but later separated due to matrimonial differences . Elizabeth moved back to her parents home with the child and She later went to work in Lebanon without informing the father . Brian later went and took the child from the parents in law’s home without her permission . Grace Kemuma Mokaya , the mother to Elizabeth moved the lower court seeking custody of the said child . Judgment was delivered on the 7 th day of February, 2025 by Hon Mac Andere (S.R.M)
According to the said judgement the father was granted temporary actual custody of the minor L.M till the return of the biological mother when and he was to hand over the child to her . The mother waws to have actual custody till the child attains the age of majority and the father was granted unlimited access to the child.
The respondent later sought to execute the said judgment and on 6.5.25 , the appellant was ordered to comply with handing over the child or serve 2 years imprisonment for contempt of court.
This court examined the child on 14.7.25 and also called for a report from the Kisii county director of children services . The report was duly filed herein .
I have carefully considered the applications , the responses and the submissions and the laws relating to children . The issues for determination are ; Whether the applicant/appellant is entitled to leave to file appeal out of time .
Whether the appellant/applicant is entitled to stay pending appeal .
Whether the application to review and set aside the orders issued on 8th May 2025 should be granted, considering the best interests of the minor child and grant of custody of the child.
Analysis and determination
On Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously.
In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time:
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
Whether the court should exercise discretion to extend time is a consideration to be made on a case-to-case basis;
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
Whether the application has been brought without undue delay; and
Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.
In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: -
“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary.
It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.”These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway.
Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:
“…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting the application….”
On the reason for the delay the applicant said that the delay was occasioned by the fact that the judgment was delivered without notice . This is not denied and I have looked at the record and there is no indication that any notice was issued for the delivery of the judgment on 7.2.25 save for 28.1.25 and 30.1.25 The application was filed on or about 18.4.25 an thus the delay as for about 2 months which is not inordinate . The reason given for not filing the appeal in time is thus plausible .
On whether the respondent will suffer any prejudice is time for filing the appeal is extended , this is a family matter relating to a child and it is the best interest of the child which matters in this matter and not the interest of the parties . In any event, the respondent is a grandmother to the child and not the mother and so she would not suffer any prejudice if the time is extend ed . I grant leave to file the appeal as prayed..
On the issue of stay pending appeal , Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows:-
Stay in case of appeal
[1] No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court to have such order set aside.
[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.
17. On substantial loss , the applicant said he will suffer substantial loss as he has custody to the child and that the stability of the child will also be disturbed unless the orders sought at granted. The respondent said that the mother to the child will continue suffering as she has not seen her child for 3 years . The child has a right to be taken care of by both parents under Article 53 (1) (e )of the Constitution , however the issue of custody is pending in the appeal it is the father who will suffer substantial loss as he has bene staying with the child and bonded with him for the past 3 years .
18. On the issue of security , this is a family matter and as a matter of practice courts do not order for security in family matters . I will not make ay orders for deposit of security
19. On whether the orders issued on 8.5.25 ought to be set aside . it is trite law that in handling children cases the best interest of the child is paramount. Article
Article 53(2) of the Constitution of Kenya, 2010 Provides that:
“A child’s best interests are of paramount importance in every matter concerning the child.”
Section 8(1), Children Act, 2022 stipulates that,
“In all actions concerning children... the best interest of the child shall be the primary consideration.”
20. The child herein is about 5 ½ years old . It is trite law that custody of children of tender years should be given to the mother unless there are special circumstances to convince the court to depart from that principle . In this case the mother to the child left her in Kenya and went she went to work in Lebanon when the child was only two years old. She has now come back 3 years down the line and wants custody as per the lower court’s judgment . When the child appeared in court on 14.7.25 and this court asked her if she knew the mother who was in court but he said he did not know her and that he had not seen her before also that he was comfortable staying with his father and mother namely Martha Ratemo in Mombasa. He said he has a sister called Abebi. I noted that the child was confident , jolly and well kempt , these points to the fact that that he is well settled . he is being well taken care of and has blended well with the step mother and his step sister . The Kisii County children Coordinator in his report recommended that the actual custody of the child be given to the father and the mother to have access to the child during school holidays for purposes of bonding with the child during school holidays to facilitate mother -child bonding due to the 3 year gap caused by her absence .
In the case of J.O. v S.A.O. [2016] eKLR; The court stressed that custody decisions must be made based on what supports the child''s stable growth and emotional welfare, not the preferences of either parent.
In Githunguri v Githunguri (1981) KLR 598 The court held that “Custody is not a parental right but a trust exercised in the child’s best interests.”
In the case M.A. v R.O. [2015] eKLR
A child should not be unfairly separated from the primary caregiver unless clearly justified.
These decisions support denying the application and maintaining custody with the respondent mother unless the applicant proves imminent danger or harm, which he does not.
21.I have considered the applications on record , the interview of the child by the court , the peculiar circumstances of this case, the children officer’s report (which included mediation and counselling sessions reports ) and the best interest of the child , I agree with the children coordinator that the child herein should be given an opportunity to settle down for his own emotional and educational development while bonding with the mother reignite their relationship . On review , Section 80 of the Civil Procedure Act allows courts to review judgments/orders where:There is discovery of new evidence, there is an error on the face of the record or for any sufficient reason . The applicant has failed to demonstrate any error, new evidence or sufficient reason . I view of the foregoing finding I do that no grounds have been established to invoke Section 80 of the Civil Procedure Act as the best interest of the child is in favour of maintaining the status quo pending bonding of the mother with the child .
22. The issue of contempt was mentioned herein by the respondent, however the appellant/father raised opposition to that argument saying that the decree had not been extracted by 8.5.25 when the interim orders were issued as the decree was extracted on 9.5.25 and so the contempt does not arise . I have perused the record for 6.5.25 and I note that on that day Hon Nyariki directed that the decree be extracted and served upon the appellant /father for compliance and that incase of default he was to be arrested and jailed for 2 months. There is no evidence that the decree was extracted and served and not complied with as the decree is dated 9.5.25 while the interim orders were issued by this court on 8.5.25 . I decline to allow the application dated 23.5.25 .
Conclusion
23. In the upshot I proceed to issue the following orders in the interest of justice
Application dated 23.5.25 is disallowed.
Application dated 18.4. 25 is allowed on the following terms
Leave to appeal is granted .
The Memorandum of appeal be filed and served within 3 days from today
Stay of execution of the judgment dated 7.2.25 is granted pending hearing and determination of the appeal .
The applicant/appellant is granted actual custody of the child L.M pending hearing and determination of the intended appeal.
In the meantime the mother and child to bond with a view to re-integration
The mother is granted access to the child during school holidays and two weekends in a month on prior arrangement with the father
The mother to bear the costs of the basic needs of the child during the time she will be staying with the child Each party to bear hos own costs as this is a family matter.
Mention on 16.12.25 for progress report by the children department and further orders .
The child and both parents to attend court physically .30 Days Right of Appeal
T.A ODERA
JUDGE
29.9.25
DELIVERED ON THE CTS ON THIS 29 TH DAY OF SEPTEMBER 2025.
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There are two applications for determination before this court i.e Motions dated 18.4.24 filed by the applicant/father herein and the one dated 23.5.25 filed by the respondent/ mother .
The application dated 18.4.25 seeks : Spent
Spent
That This Honourable court be pleased to grant leave and extend time to the applicant to file his appeal out of time in respect to judgment delivered on 7.2.25 in Kisii Magistrate’s Court Children case no. case no. E071 of 2022.
That the Honourable court be pleased to stay the execution of the judgment in judgment delivered on 7.2.25 in Kisii Magistrate’s Court Children case no. E071 of 2022.
Costs be in the cause .
The application is based on the grounds that ;
Judgment in the said lower court filed was delivered on 7.2.25 .
The case pended judgment for about one year from 8.3.24 when parties closed their cases . That vide mail from the court dated 11.12.24 parties were informed that judgment had been scheduled for delivery on 28.1.24. on 28.1.25 parties received another email that judgment has been rescheduled to 30.1.25. The judgment was not delivered and Mr Magara advocate protested via email .
The applicant followed up on the issue and he was informed by the court assistant and court administrator that judgment would be delivered on notice.
On 14.4.25 counsel for the applicant was served with a draft decree and that is when he realized that judgment had already been delivered. On checking the case tracking system he found that judgment had been delivered on 7.2.25 and uploaded in the system on 13.3.25.
That the judgment was delivered without notice .
That the minor will suffer irreparably as he will be separated from the father who is the only parent in the country
That stability is in the best interest of the child .
That the intended appeal raises triable issues .
It is in the interest of justice that the orders sought be granted.
The respondent filed a relying affidavit in opposition to the said application. She termed it frivolous ,vexacious and malicious . She said that the application is i aimed at frustrating execution process in the lower court and that the intended appeal is an after thought meant to evade the contempt sentence of 2 years imprisonment imposed by the lower court.
The mother/applicant later filed application dated 23.5.25 seeking; That the honorable court be pleased to review the orders issued on the 8 th day of may 2025 with a view of canceling and/or setting the same aside.
That the pending hearing and determination of this suit, the court does issue any other orders/directions towards the best interest of the child.
The father /respondent filed grounds of opposition dated to the same listing the following ; The aplication is scandalous, frivolous ,vexacious and thus an absue of the proceess of the court.
That the application dated 18.5.25 was duly served and acknowleged , but no response was filed.
The decreee was issued on 9.5.25 after the interim stay of exceution of the said decreewas granted.
That contempt proceedings do not therefore arise .
That the application dated 23.5.25 ought to be dismissed ex Debito Justitae .
Background
The Brian Misaro Ratemo and Elizabeth Gesare Mokaya are the biological father and mother of L.M the subject herein aged about 5 ½ . They lived together as husband and wife for the said child but later separated due to matrimonial differences . Elizabeth moved back to her parents home with the child and She later went to work in Lebanon without informing the father . Brian later went and took the child from the parents in law’s home without her permission . Grace Kemuma Mokaya , the mother to Elizabeth moved the lower court seeking custody of the said child . Judgment was delivered on the 7 th day of February, 2025 by Hon Mac Andere (S.R.M)
According to the said judgement the father was granted temporary actual custody of the minor L.M till the return of the biological mother when and he was to hand over the child to her . The mother waws to have actual custody till the child attains the age of majority and the father was granted unlimited access to the child.
The respondent later sought to execute the said judgment and on 6.5.25 , the appellant was ordered to comply with handing over the child or serve 2 years imprisonment for contempt of court.
This court examined the child on 14.7.25 and also called for a report from the Kisii county director of children services . The report was duly filed herein .
I have carefully considered the applications , the responses and the submissions and the laws relating to children . The issues for determination are ; Whether the applicant/appellant is entitled to leave to file appeal out of time .
Whether the appellant/applicant is entitled to stay pending appeal .
Whether the application to review and set aside the orders issued on 8th May 2025 should be granted, considering the best interests of the minor child and grant of custody of the child.
Analysis and determination
On Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously.
In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time:
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
Whether the court should exercise discretion to extend time is a consideration to be made on a case-to-case basis;
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
Whether the application has been brought without undue delay; and
Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.
In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: -
“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary.
It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.”These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway.
Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:
“…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting the application….”
On the reason for the delay the applicant said that the delay was occasioned by the fact that the judgment was delivered without notice . This is not denied and I have looked at the record and there is no indication that any notice was issued for the delivery of the judgment on 7.2.25 save for 28.1.25 and 30.1.25 The application was filed on or about 18.4.25 an thus the delay as for about 2 months which is not inordinate . The reason given for not filing the appeal in time is thus plausible .
On whether the respondent will suffer any prejudice is time for filing the appeal is extended , this is a family matter relating to a child and it is the best interest of the child which matters in this matter and not the interest of the parties . In any event, the respondent is a grandmother to the child and not the mother and so she would not suffer any prejudice if the time is extend ed . I grant leave to file the appeal as prayed..
On the issue of stay pending appeal , Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows:-
Stay in case of appeal
[1] No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court to have such order set aside.
[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.
17. On substantial loss , the applicant said he will suffer substantial loss as he has custody to the child and that the stability of the child will also be disturbed unless the orders sought at granted. The respondent said that the mother to the child will continue suffering as she has not seen her child for 3 years . The child has a right to be taken care of by both parents under Article 53 (1) (e )of the Constitution , however the issue of custody is pending in the appeal it is the father who will suffer substantial loss as he has bene staying with the child and bonded with him for the past 3 years .
18. On the issue of security , this is a family matter and as a matter of practice courts do not order for security in family matters . I will not make ay orders for deposit of security
19. On whether the orders issued on 8.5.25 ought to be set aside . it is trite law that in handling children cases the best interest of the child is paramount. Article
Article 53(2) of the Constitution of Kenya, 2010 Provides that:
“A child’s best interests are of paramount importance in every matter concerning the child.”
Section 8(1), Children Act, 2022 stipulates that,
“In all actions concerning children... the best interest of the child shall be the primary consideration.”
20. The child herein is about 5 ½ years old . It is trite law that custody of children of tender years should be given to the mother unless there are special circumstances to convince the court to depart from that principle . In this case the mother to the child left her in Kenya and went she went to work in Lebanon when the child was only two years old. She has now come back 3 years down the line and wants custody as per the lower court’s judgment . When the child appeared in court on 14.7.25 and this court asked her if she knew the mother who was in court but he said he did not know her and that he had not seen her before also that he was comfortable staying with his father and mother namely Martha Ratemo in Mombasa. He said he has a sister called Abebi. I noted that the child was confident , jolly and well kempt , these points to the fact that that he is well settled . he is being well taken care of and has blended well with the step mother and his step sister . The Kisii County children Coordinator in his report recommended that the actual custody of the child be given to the father and the mother to have access to the child during school holidays for purposes of bonding with the child during school holidays to facilitate mother -child bonding due to the 3 year gap caused by her absence .
In the case of J.O. v S.A.O. [2016] eKLR; The court stressed that custody decisions must be made based on what supports the child''s stable growth and emotional welfare, not the preferences of either parent.
In Githunguri v Githunguri (1981) KLR 598 The court held that “Custody is not a parental right but a trust exercised in the child’s best interests.”
In the case M.A. v R.O. [2015] eKLR
A child should not be unfairly separated from the primary caregiver unless clearly justified.
These decisions support denying the application and maintaining custody with the respondent mother unless the applicant proves imminent danger or harm, which he does not.
21.I have considered the applications on record , the interview of the child by the court , the peculiar circumstances of this case, the children officer’s report (which included mediation and counselling sessions reports ) and the best interest of the child , I agree with the children coordinator that the child herein should be given an opportunity to settle down for his own emotional and educational development while bonding with the mother reignite their relationship . On review , Section 80 of the Civil Procedure Act allows courts to review judgments/orders where:There is discovery of new evidence, there is an error on the face of the record or for any sufficient reason . The applicant has failed to demonstrate any error, new evidence or sufficient reason . I view of the foregoing finding I do that no grounds have been established to invoke Section 80 of the Civil Procedure Act as the best interest of the child is in favour of maintaining the status quo pending bonding of the mother with the child .
22. The issue of contempt was mentioned herein by the respondent, however the appellant/father raised opposition to that argument saying that the decree had not been extracted by 8.5.25 when the interim orders were issued as the decree was extracted on 9.5.25 and so the contempt does not arise . I have perused the record for 6.5.25 and I note that on that day Hon Nyariki directed that the decree be extracted and served upon the appellant /father for compliance and that incase of default he was to be arrested and jailed for 2 months. There is no evidence that the decree was extracted and served and not complied with as the decree is dated 9.5.25 while the interim orders were issued by this court on 8.5.25 . I decline to allow the application dated 23.5.25 .
Conclusion
23. In the upshot I proceed to issue the following orders in the interest of justice
Application dated 23.5.25 is disallowed.
Application dated 18.4. 25 is allowed on the following terms
Leave to appeal is granted .
The Memorandum of appeal be filed and served within 3 days from today
Stay of execution of the judgment dated 7.2.25 is granted pending hearing and determination of the appeal .
The applicant/appellant is granted actual custody of the child L.M pending hearing and determination of the intended appeal.
In the meantime the mother and child to bond with a view to re-integration
The mother is granted access to the child during school holidays and two weekends in a month on prior arrangement with the father
The mother to bear the costs of the basic needs of the child during the time she will be staying with the child Each party to bear hos own costs as this is a family matter.
Mention on 16.12.25 for progress report by the children department and further orders .
The child and both parents to attend court physically .30 Days Right of Appeal
T.A ODERA
JUDGE
29.9.25
DELIVERED ON THE CTS ON THIS 29 TH DAY OF SEPTEMBER 2025.
'