1. I n Halsbury’s Law of England, 4 th Edition. Vol. 37 page 330 & 332, the passage records 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 .
2. Sir John Donaldson M. R. in Rosengrens Vs Safe Deposit Centres Limited [1984] 3 ALLER 198 aptly says that; “ We are faced with a situation where a judgment has been given. It may be affirmed or it may be set aside. We are concerned with preserving the rights of both parties pending that appeal. It is not our function to disadvantage the Defendant while giving no legitimate advantage to the Plaintiff…… It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal.
3. In the Notice of Motion dated 12 th June, 2026, the applicant is seeking the following prayers;
a. Spent
b. That pending the hearing inter partes of this application, and in substitution of the stayed Orders 2, 3 and 4, this Honourable Court be pleased to issue interim protective directions that the Appellant/Applicant and the Respondent do share equally, in the ratio of 50:50, the school fees, school-related expenses, reasonable medical cover premiums, uncovered medical expenses, and reasonable food, clothing, shelter, upkeep and related maintenance expenses for CSW and CMW, where not already included in school fees or school-related expenses and upon production of fee notes, invoices, receipts and/or other reasonable proof.
c. That pending the hearing and determination of the appeal, there be a stay of execution, implementation and/or enforcement of Orders 2, 3 and 4 of the Judgment delivered on 12th May 2026.
d. That pending the hearing and determination of the appeal, in the best interests of the children, and in substitution of the stayed Orders 2, 3 and 4, this Honourable Court be pleased to direct that the parties do share equally, in the ratio of 50:50: (a) the school fees and school-related expenses of CSW and CMW;
e. The premiums for a reasonable, jointly acquired medical cover for CSW and CMW, and any uncovered medical expenses upon production of receipts;
f. Reasonable food, clothing, shelter, upkeep and related maintenance expenses for CSW and CMW where not already included in school fees or school-related expenses, upon production of invoices, receipts and/or other reasonable proof
g. That this Honourable Court be pleased to give expedited directions for the hearing and determination of the appeal.
h. That costs of this application be provided for.
4. The grounds of the application are set out on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. That prior to impugned judgement, the interim orders issued on 7 th January 2025 had directed parties to provide for children at the ratio of 50:50 save for education where the ratio was 70:30 against the appellant which was contested.
b. The impugned judgement escalated the appellant’s education cost obligations to a tune of 80% to 90%.
c. The Respondent was assigned unspecified medical cover whose existence, scope, beneficiaries, limits, renewal status and cost were not determined in the judgement.
d. Currently, the appellant is not in any formal employment and his income is irregular and unpredictable, that notwithstanding, he has endured great financial strain.
e. Whereas CSW is a minor, CMW is an adult dependant and so both parties should share equally in terms of maintenance of the children including school related costs.
5. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The application is misconceived, incompetent, devoid of merit and constitutes a clear abuse as the trial magistrate evaluated the oral testimony as well documentary evidence guided by the law and the constitution.
b. The appellant has no arguable appeal as the trial court considered all her contribution to the welfare of the children and adduced documentary proof besides taking a loan to pay school fees.
c. The appellant has not met the criterion set out under Order 42 rule 6 (1) and (2) where it is provided that anyone whoever applies for stay must show sufficient cause for granting orders of stay of execution of a decree
Analysis and Determination:
6. The issue for determination by this court is whether the Appellant made a case for this court to stay the execution of the order that he wishes to appeal against before this court. Order 42 Rule 6(2) of the Civil Procedure Rules requires any applicant who wishes to have an order or decree stayed pending the hearing of the intended appeal to establish that he would suffer substantial loss if stay is not granted. Such applicant must also be prepared to provide security for the due performance of the decree. Finally, the application for stay must be made without undue delay . In Butt Vs Rent Restriction Tribunal [1982] KLR 417 at page 419, Madan JA (as he then was) held thus: “It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ 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.”
7. In Z M O Vs E I M [2013] eKLR , Justice D N Musyoka had this to say “ As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same.
8. The best interest of the children is a principle which is at the Centre of any proceedings affecting the children. Article 53(2) of the Constitution enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration to the extent that this is consistent with adoption a course of action calculated to; .Safeguards and promote the rights and welfare of the child; Conserve and promote the welfare of the child, Secure for the child such guidance and correction as it is necessary for the welfare of the child and in the public interest. Consequently, when it comes to stay of proceedings, the court is cautious that stay if granted do not affect the best interest of a child.
9. Upon consideration of the lower court judgement, it appears that the appellant has an arguable case. However, much of the issues raised and responded to, at this stage touch on the merits and demerits of the main appeal and I do not want to express my opinion.
10. The judgement of the trial court was delivered on 12 th May, 2026 and the application herein was filed on 12 th June, 2026. There is no doubt, the application filed within reasonable time. Regarding depositing of security, this is not perse a monetary claim to require deposit of security. The suit revolves around provision of basic necessities for the children hence do not warrant deposit of security.
11. On whether the applicant is likely to suffer substantial loss, it must be borne in mind that in a children matter, grant of stay orders is a discretionary issue which must be exercised judiciously and reasonably. Appellate court, will only interfere with the trial court’s discretion if proved that the trial court misdirected itself in the matter thereby arriving at a wrong decision.
12. Putting all these together, I shall make the following orders;
a. That there be stay of execution of the lower court’s judgement.
b. The parties to provide for children at 50:50 save for school fees at the ratio of 70:30 as against the appellant and Respondent, respectively.
c. This Honourable Court directs that a Record of Appeal be prepared and served upon the Respondent within 14 days from today.
d. The Respondent, thereafter to file and serve a Response within 14 days.
e. Mention 16 th September, 2026 for taking a further direction on the appeal.
f. Liberty to apply.
Delivered virtually this 9 th July, 2026.
R.K. Ondieki,
Judge.
In the presence of:
Christine- C/A
Mr Mwangi for the Respondent
Ms Tole for the Appellant.
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2. Sir John Donaldson M. R. in Rosengrens Vs Safe Deposit Centres Limited [1984] 3 ALLER 198 aptly says that; “ We are faced with a situation where a judgment has been given. It may be affirmed or it may be set aside. We are concerned with preserving the rights of both parties pending that appeal. It is not our function to disadvantage the Defendant while giving no legitimate advantage to the Plaintiff…… It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal.
3. In the Notice of Motion dated 12 th June, 2026, the applicant is seeking the following prayers;
a. Spent
b. That pending the hearing inter partes of this application, and in substitution of the stayed Orders 2, 3 and 4, this Honourable Court be pleased to issue interim protective directions that the Appellant/Applicant and the Respondent do share equally, in the ratio of 50:50, the school fees, school-related expenses, reasonable medical cover premiums, uncovered medical expenses, and reasonable food, clothing, shelter, upkeep and related maintenance expenses for CSW and CMW, where not already included in school fees or school-related expenses and upon production of fee notes, invoices, receipts and/or other reasonable proof.
c. That pending the hearing and determination of the appeal, there be a stay of execution, implementation and/or enforcement of Orders 2, 3 and 4 of the Judgment delivered on 12th May 2026.
d. That pending the hearing and determination of the appeal, in the best interests of the children, and in substitution of the stayed Orders 2, 3 and 4, this Honourable Court be pleased to direct that the parties do share equally, in the ratio of 50:50: (a) the school fees and school-related expenses of CSW and CMW;
e. The premiums for a reasonable, jointly acquired medical cover for CSW and CMW, and any uncovered medical expenses upon production of receipts;
f. Reasonable food, clothing, shelter, upkeep and related maintenance expenses for CSW and CMW where not already included in school fees or school-related expenses, upon production of invoices, receipts and/or other reasonable proof
g. That this Honourable Court be pleased to give expedited directions for the hearing and determination of the appeal.
h. That costs of this application be provided for.
4. The grounds of the application are set out on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. That prior to impugned judgement, the interim orders issued on 7 th January 2025 had directed parties to provide for children at the ratio of 50:50 save for education where the ratio was 70:30 against the appellant which was contested.
b. The impugned judgement escalated the appellant’s education cost obligations to a tune of 80% to 90%.
c. The Respondent was assigned unspecified medical cover whose existence, scope, beneficiaries, limits, renewal status and cost were not determined in the judgement.
d. Currently, the appellant is not in any formal employment and his income is irregular and unpredictable, that notwithstanding, he has endured great financial strain.
e. Whereas CSW is a minor, CMW is an adult dependant and so both parties should share equally in terms of maintenance of the children including school related costs.
5. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The application is misconceived, incompetent, devoid of merit and constitutes a clear abuse as the trial magistrate evaluated the oral testimony as well documentary evidence guided by the law and the constitution.
b. The appellant has no arguable appeal as the trial court considered all her contribution to the welfare of the children and adduced documentary proof besides taking a loan to pay school fees.
c. The appellant has not met the criterion set out under Order 42 rule 6 (1) and (2) where it is provided that anyone whoever applies for stay must show sufficient cause for granting orders of stay of execution of a decree
Analysis and Determination:
6. The issue for determination by this court is whether the Appellant made a case for this court to stay the execution of the order that he wishes to appeal against before this court. Order 42 Rule 6(2) of the Civil Procedure Rules requires any applicant who wishes to have an order or decree stayed pending the hearing of the intended appeal to establish that he would suffer substantial loss if stay is not granted. Such applicant must also be prepared to provide security for the due performance of the decree. Finally, the application for stay must be made without undue delay . In Butt Vs Rent Restriction Tribunal [1982] KLR 417 at page 419, Madan JA (as he then was) held thus: “It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ 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.”
7. In Z M O Vs E I M [2013] eKLR , Justice D N Musyoka had this to say “ As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same.
8. The best interest of the children is a principle which is at the Centre of any proceedings affecting the children. Article 53(2) of the Constitution enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration to the extent that this is consistent with adoption a course of action calculated to; .Safeguards and promote the rights and welfare of the child; Conserve and promote the welfare of the child, Secure for the child such guidance and correction as it is necessary for the welfare of the child and in the public interest. Consequently, when it comes to stay of proceedings, the court is cautious that stay if granted do not affect the best interest of a child.
9. Upon consideration of the lower court judgement, it appears that the appellant has an arguable case. However, much of the issues raised and responded to, at this stage touch on the merits and demerits of the main appeal and I do not want to express my opinion.
10. The judgement of the trial court was delivered on 12 th May, 2026 and the application herein was filed on 12 th June, 2026. There is no doubt, the application filed within reasonable time. Regarding depositing of security, this is not perse a monetary claim to require deposit of security. The suit revolves around provision of basic necessities for the children hence do not warrant deposit of security.
11. On whether the applicant is likely to suffer substantial loss, it must be borne in mind that in a children matter, grant of stay orders is a discretionary issue which must be exercised judiciously and reasonably. Appellate court, will only interfere with the trial court’s discretion if proved that the trial court misdirected itself in the matter thereby arriving at a wrong decision.
12. Putting all these together, I shall make the following orders;
a. That there be stay of execution of the lower court’s judgement.
b. The parties to provide for children at 50:50 save for school fees at the ratio of 70:30 as against the appellant and Respondent, respectively.
c. This Honourable Court directs that a Record of Appeal be prepared and served upon the Respondent within 14 days from today.
d. The Respondent, thereafter to file and serve a Response within 14 days.
e. Mention 16 th September, 2026 for taking a further direction on the appeal.
f. Liberty to apply.
Delivered virtually this 9 th July, 2026.
R.K. Ondieki,
Judge.
In the presence of:
Christine- C/A
Mr Mwangi for the Respondent
Ms Tole for the Appellant.
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