1. If there was ever a storm in a tea cup it would be this application. The parties herein are the biological parents of the minor. The parties being unable to agree on how to share parental responsibility approached the court to adjudicate the matter.
2. The Court in its ruling of 6th August 2024, noted that Judgment in the matter was delivered on 9th July 2023 and the application was with regard to the compliance with court orders. The Court made some not so complementary observations on the truthfulness of both parties. Having found that the defendant was reluctant to comply with court orders, the Court directed ‘that the defendant do forthwith hand over the minor to the Plaintiff to facilitate processing of her passport and travel to Kenya’. In default warrant of arrest to issue against the defendant. That order is as clear as day.
3. Subsequently, the appellant moved the trial court by application dated 9th October 2024, seeking to set aside those orders, stating that the child’s travel was hampered by the failure of the respondent herein to purchase a ticket for the minor despite her request to him to do so. There had been glitches on account of the expired transport that prevented the child from travelling, but once these were resolved, it was the respondent’s failure to purchase the ticket that stopped her travel. These are issues the Court had considered and determined in the ruling of 9th August 2024 and again in the ruling of 21st January 2025 that dismissed the application of 9th October 2024.
4. Following that dismissal, the appellant filed the memorandum of appeal, enumerating 7 grounds upon which the impugned ruling was challenged. She then filed the current application wherein she seeks the following orders-
a) Spent
b) The Honourable Court be pleased to stay execution of the orders of 06th August 2024 together with warrant of issued against (sic)
c) Pending hearing and determination of the Appeal HCFA/E024/2025, the Honourable Court be pleased to issue stay of execution of the ruling of 6th August 2024.
5. The applicant is apprehensive that in the absence of stay of execution orders her right to liberty stands to be breached and this will have an adverse effect on the rights of the child as she is the sole caregiver. She laments that the denial of the stay will compromise her right of appeal. The loss she and the minor would suffer would be irreparable. The failure to grant the stay would render the appeal an academic exercise.
6. The application is presented under 29, 53(2) and 159 of the Constitution, Order 42, Order 51 of the Civil Procedure Rules, Section 1A, 1B, 3A of the Civil Procedure Act and Section 11, 95, 134 and 104 of the Children Act.
7. The Respondent fervidly opposes the application vide affidavit sworn on 12th May 2025. It is his averment that the appellant is in defiance of court orders. His attempts to access the child have been repeatedly frustrated. He has made more than one trip to Dubai to access the minor in accordance with the judgment on record without success. The Application is for dismissal
8. The Applicant has sworn a further affidavit on 14th May 2025 in which she reiterates her earlier averments and adds that the respondent is motivated by ulterior motives to cause her to lose her job. She denies that she has disobeyed the orders of the Court stating that it is the respondent who failed to facilitate the travel of the minor from Dubai.
9. Pursuant to Court directions, both parties have filed their written submissions. The Applicants submissions are dated 10th April 2025. On whether or not the stay of execution is merited the appellant refers to the test set out in Order 42 rule (6)(2)(a) of the Civil Procedure Rules, 2010. On her submission that she will suffer substantial loss she relies on the decision in Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited [2014]eKLR; Samvir Trustee Limited v Guardian Bank Limited [2007] KEHC 2438 (KLR) and Kenya Shell Limited v Kibiru [1986] KLR 410
10. On the paramountcy of the best interests of the child, the appellant refers to the decision in MAK v RMAA & 4 Others [Petition 2(E003) of 2022) [2023] KESC 21(KLR) (2March 2023) (Judgment); B.W.M v S.K.K J [2015] eKLR She further raises the issue that the minor being a child of tender years the judicial precedents are aligned that custody should vest in the mother.
11. Further she submits that grant of the stay will preserve the subject matter and safeguard her rights as she pursues her appeal, she cites the decision in RWW v EKW [2019] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR .
12. The Respondent’s submissions are dated 14th May 2025 and submits the following as the issues for determination:-
a) Whether a stay of execution of the Orders of 6th August 2024 together with the warrants of arrest issued aganst the appellant should be issued at this instance, and also pending the determination of the appeal?
b) Whether the appellant has audience before this Court before purging contempt of the orders being sought to be stayed?
13. The respondent asserts that as pronounced in Bhutt v Bhutt- Mombasa HCCC No. 8 of 2014, the overriding consideration is the best interests of the child. It is submitted that in this case the best interest of the child is to have a relationship with both parents.
14. It is submitted further that the applicant is not deserving of the orders sought as she is in active disobedience of court orders. Reference is made to the decision in MT- VS – TAN &Another [2015] eKLR and SPA V AB [2023]eKLR.
15. On the 2nd limb it is the submission of the Court, that since the applicant is in contempt she has no audience before the Court. This however is water under the bridge as the applicant has canvassed the application.
16. While the application was pending hearing, the applicant moved court vide the application dated 9th May 2025 seeking the essentially the same orders but now adding that she is required to fly into Kenya on work related travel and the respondent has indicated that he will enforce the warrant of the arrest. She is set to arrive in the Country on 15th May 2025. The Court directed that as the application dated 11th March 2025 superseding that of 9th May 2025 would proceed to hearing on an expedited basis.
ANALYSIS AND DETERMINATION.
17. Having considered the pleadings herein, along with the rival submissions and the relevant law, I observe that the issues for determination are
a) Whether I should grant a stay of execution pending the hearing of the appeal herein?
b) Who should pay the costs of the Suit.
18. At the outset I am well guided that the primary consideration has to be the best interests of the child. It is trite that in every decision undertaken concerning a child, the best interest of a child should be considered. This position is clearly captured in the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The same has also been captured under Article 53 (2) of the Constitution of Kenya as follows: ‘a child’s best interests are of paramount importance in every matter concerning the child’.
19. The same was well pronounced in the case of MAA v ABS [2018] eKLR, where it was held as follows: -
.... While considering this matter, this Court is alert to the welfare of the children herein who are of tender years. The matter is not about the applicant/appellant and the respondent; and their interests are secondary to those of the child. The foregoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein. Acting in the best interest of the children in question.
20. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), the Court pronounced on the principles to guide a court in an application for stay of execution. Primarily the Court must guard against the intended appeal from being rendered nugatory. The Court had this to say while citing the decision in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
21. The Court is obligated to at the same time safeguard the interests of the successful litigant with a judgment at hand even as it considers the interests of the appellant. The decree-holder ought not to be precluded from enjoying the fruits of his/her judgment. This principle was aptly explained in the case of RWW v EKW [2019] eKLR, as follows:
the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
22. Further, In the case of Macharia t/a Macharia & Co Advocates v East African Standard, no 2 (2002) KLR 63, the court observed that: -
To be obsessed with the protection of an appellant or intending appellant in total disregard or fliting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.
23. In determining this application, I am guided by the following issues;
a) Whether it is in the best interests of the child to stay execution pending appeal?
b) Whether the Applicant will suffer substantial loss and whether denial of appeal will render the appeal nugatory, a mere academic exercise.
24. On the first issue, the right of the child at stake is the right to be cared for by both parents. Ultimately it is in the best interests of the child to be cared for and have access to both her parents. The child of tender years principle must always be weighed against the best interests of the child principle. It is not cast in stone. This was well elucidated in the decision in SMM v ANK [2022] KEHC 1043 (KLR)
25. In the decision of 9th July 2023, the Court pronounced itself on the issue of the access by the father to the child. Since then the orders of the Court have not been complied with. The failure to facilitate the child’s travel have had the effect of the child not having access to the father. The arrest and detention of the mother, means that her return to Dubai will be delayed and the child will not have access to a parent. The scales of justice must tilt towards having an outcome that ensures valid court orders are complied with and the child has access to a parent or acceptable care in the interim.
26. It has not been submitted that the nanny will be incapable of taking care of the minor while the applicant is away for the period that she needs to correct the wrong that necessitated the issuance of the warrants of arrest. I find therefore that the interests of the child are safeguarded in the best way possible under the circumstances as she is under the care of a trusted nanny.
27. The applicant submits that she will suffer substantial loss and her appeal will be rendered nugatory. The applicant did not appeal against the substantive orders granting the father access. The order that she is appealing against is one that seeks to enforce a valid court order. A court that cannot enforce its orders is making a mockery of justice. I find a situation where a 2 year decision has not been complied with untenable. A party cannot be heard to claim substantial loss in the face of failure/ refusal/ reluctance to comply with a court order.
28. The applicant herein states her right to liberty is at stake, the right to liberty is not an absolute right (See Articles 24 and 25 of the Constitution of Kenya). In this instance the right to liberty of an individual may be curtailed as a sanction when there is refusal or reluctance to comply with a court order. The applicant supposes that the Court can protect her while she tramples on the rights of the father and the child with regard to parental success. Not this Court.
29. The applicant, in the words of Chinua Achebe, ‘has the yam and knife’ in her hands. She can avoid the arrest by presenting herself before Court and providing an undertaking that she will comply with the order.
30. For the forestated reasons, the arrest of the applicant will be suspended if she presents herself to the trial court on or before 16th May 2025 at 11am and gives an undertaking that will satisfy that court. Failure of which the arrest to remain enforceable.
31. The applicant will meet the costs of this application assessed at Kshs 35000 payable within 30 days.
32. Both parties granted leave to appeal within 30 days.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…15th day of…May 2025