'
By Notice of Motion dated 23 rd July 2025, presented under Section 5(1), Article 53 of the Constitution of Kenya and Sections 8, 11, 13, 16, 31 , 32, 102, 103, 108, 141, 143 and 150 of the Children’s Act, Sections 1A and 3A of the Civil procedure Act and Order 41 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, the applicant seeks the following orders-
Spent
THAT this Honourable Court be pleased to stay the orders issued in Milimani Magistrate’s Court Children’s Case No. E1947 of 2023 dated 10 th July 2025 in reference to the Application dated 16 th May 2025.
THAT this Honourable Court do issue an order for the immediate return of the minor herein ( Geo Libaisi Carwen Boyd of Kenyan passport no. CK 58823 and British Passport No. 127221075) to Kenya or in the alternative, the Respondent be ordered to release the minor- Geo Libaisi Carwen Boyd together with her passport documents Kenyan Passport no. CK 58823 and british Passport No. 127221075 to the applicant ( Darrell Boyd) for return to Kenya.
THAT this Honourable Court be pleased to grant the Appellant ( Darell Boyd) temporary care and control of the minor herein ( Geo Libaisi Carwen Boyd) pending the hearing and determination of the intended appeal.
THAT the Honourable Court be pleased to make any other order it deems just
THAT the costs of this application be provided for.
The application is supported by affidavit sworn by the applicant on 23 rd July 2025 and further affidavit sworn on 1 st October 2025. The Respondnet has sworn an affidavit in opposition on 24 th September 2025. The application was canvassed via written submissions.
SUMMARY OF PLEADINGS
The applicant and respondent are the biological parents of the minor subject of the proceedings. The trial Court delivered its judgment on 11 th October 2024, directing inter alia that the parents would have joint legal custody, the respondent herein would have actual custody, care and control of the minor. The Court further gave orders relating to the appellants access to the minor both virtual and physical and provided for the appellant to apply to court for leave to travel with the minor out of the country. The Court grant the appellant unsupervised access to the minor while he was in Kenya. The parents were also to share parental responsibility for the minor, with the appellant meeting the medical and educational needs of the minor, while the respondent would provide for the clothing. Each parent would provide food, shelterand entertainment whils they had custody of the minor.
Soon after the judgment the parties were back in Court with the Appellant seeking to review the judgment of 11 th October 2024 and the appellant seeking leave to travel with the child on holiday. Both applications were dismissed in ruling delivered on 9 th December 2024. There were a number of applications culminating in the one subject of this application dated 16 th May 2025, where on learning that the applicant left the country with the minor without leave of the Court, sought the return of the minor. In ruling dated 10 th July 2025, the Court declined to grant the orders sought thus precipitating the appeal and the application seeking interim orders pending the appeal.
The applicant filed further affidavit sworn on 1 st October 2025 in which he substantiates the allegations of the applicant engaging and exposing the minor to pornographic material by presenting screen grabs of social media pages.
The Respondent opposes the application and has sworn affidavit on 24 th September 2025, she denies the charge that she has exposed the minor to violence, paedophilia or sexual work or any form of abuse. She terms the allegations as scandalous.
She counters the averments of the applicant by stating that he has been hostile and threatening towards her and her family members. The orders sought by the applicant are not in the best interests of the minor as they would remove her from her safe environment.
She confirms that she was interviewed by the police on the allegations made against her and there has been no follow up by the police. She travelled to Canada on a visitors visa but has since applied for protection on account of the harassment by the applicant. It is the applicant who is risking harm to the minor by the posts on social media.
Prior to her departure she obtained protection orders against the applicant in MCFC E037 of 2025. It is averred that it is not in the best interests of the child to grant the orders sought.
The Application was canvassed via written submissions.
SUMMARY OF APPLICANT’S SUBMISSIONS
The Applicant frames the issues for determination as-
Whether the Applicant has an arguable appeal warranting the stay orders
Whether the applicant has demonstrated that substantial loss may result rendering the appeal nugatory
Whether the Kenyan Courts have jurisdiction to hear and determine this matter
Who bears the costs of this suit
On the first issue reference is made to the decision in Esso Motor Sales v Commissioner of Dmoestic Taxes [2022] KETAT 1140 (KLR) and it is submitted that the applicant has established that he has an arguable appeal. It is urged that the thrust of the appeal is that it has been demonstrated that the respondent left the Country without leave of the appellant Further that the decision of the respondent to leave the Country is in contempt of the Court order granting joint custody of the minor to the parents.
In any event the best interest principle as articulated in the decision of SMK v ANK [2022] eKLR favours that he be granted custody of the minor in the circumstances. It is submitted that it is not in the chil’''s best interests to be seperated from a parent.
On the 2 nd issue, it is submitted that unless the orders are granted the applicant will suffer substantial loss and reliance placed on the decision in S K K v S K K [2019] KEHC 11910 (KLR) and Gianfrance Manenthi & Another v Africa Merchant Asssurance Company [2019] KEHC 7586 (KLR). It is submitted that the child is currently exposed to pornographic material and paedophilia and abuse by the applicant. At the same time she is not attending school and she is deprived of parental care.
On the 3 rd issue, it is submitted that the Kenyan Court does have jurisdiction to hear the matter, contrary to the finding of the trial court, especially in the current case where it is submitted that the child is exposed to harm. Reference is made to the decision n ALAO v SOO ( Civil Appeal E067 of 2023) [2024] KEHC 13098 (KLR) (Family) (28 th October 2024) (Judgment)
On the 4 th issue, it is submitted that the respondent should bear the costs and reference made to the decision in Ali v County Government of Mombasa & Another [2024] eKLR.
SUMMARY OF RESPONDENT’S SUBMISSIONS
The respondent frames the issues for determination as-
Whether the orders of 10 th July 2025 delivered in MCCHCC E1947 of 2023 in reference to the application dated 16 th May 2025 ought to be stayed?
Whether the appellant/ applicant has justified the return of the minor and / or her travel documents back to Kenya
Whether the appellant/ applicant ought tto be granted temproray care and control of the minor herein?
Who should bear the costs of this application?
It is submitted that the application does not meet the legal threshold of Order 42 rule 6(2) of the Civil procedure rules. It is submitted that the order issued was not a positive order and so in effect there is nothing to stay. It is submitted that the respondent has not demonstrated that he will suffer substantial loss. A stay would in effect grant the applicant the orders that he was denied and there is no executable decree.
On the 2 nd issue it is submitted that no basis has been laid for the return of the child to the country, contrary to Article 53 (2) of the Constitution of Kenya which obligates courts to give primacy to the best interests of a child in all matters. Reliance is placed on the decision in JKM v PO & Another [2023] eKLR in which the court cited the decision Re R (Childs) ( Wardship) Jurisdiction) 1981 2 FLR 416. The respondent further relies on the Supreme Court decision in MAK v RMAA & 4 Others [2023] eKLR .
Further it is submitted that it is not in the interests of the child to remove her from her current environment and reference made to the decision in SMM v ANK [2022] eKLR . It is submitted that in any event that the applicant has not discharged the evidentiary burden in relation to the allegations that the has made and reference made to Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334. The Repsondent submits that the Court is bound to grant orders that are enforceable, the sought orders are beyond the jurisdiction of the Court.
It is submitted that the continued stay of the minor is not detrimental to her well being as was demonstrated in SAJ v AOG & Another [2019].
On the 3 rd issue it is submitted that it has not been demonstrated that it is in the minor’s interests to grant the applicant temporary care and control of the minor.
On the issue of costs, it is submitted that the respondent should bear the costs and reference made to the decision in Republic versus Rosemary Wairimu Munene ( Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Limited [2014] eKLR.
ANALYSIS AND DETERMINATION.
I have considered the application before me, the Reply filed by the Respondent as well as the written submissions filed by each party. The issue for determination is whether the Court should grant stay of proceeedings as sought pending the hearing and determination of the appeal.
As this matter concerns the welfare and well-being of the children, I am bound by the Constitutional imperative at Article 53 (2) of the Constitution of Kenya, 2010 that states:
(2)A child’s best interests are of paramount importance in every matter concerning the child.
Likewise, the Children Act at section 8(1) provides as follows:-
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Own emphasis)
The principles for granting stay of execution or proceedings in children matters was well settled in the case of Bhutt v Bhutt Mombasa HCCC No. 8 of 2014 , the Court held as follows:-
“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis).
I reiterate that in making a decision on this matter the primary consideration is the best interests of the children, which of necccesity will trump the wishes and desires of the parents and treat them as secondary.
In exercising discretion in respect to stay of execution, Order 42 Rule 6(2) provide that the Court should be satisfied that:-
The applicant will suffer substantial loss if a stay is not granted;
The application for stay has been brought without undue delay; and
The applicant has provided security for the due performance of the decree.
In the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi , Civil Appeal No 326 of 2013 it was stated that:-
to my mind, the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;
Whether the applicant has established that he/she has a prima facie arguable case.
Whether the application was filed expeditiously and
Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.
A preliminary issue has been raised as to whether or not the Court can grant stay in the current circumstances, where the trail court dismissed the application of the applicant. The Courts have severally held that negative orders are incapable of being stayed. In Thuo v Kimani & 2 others [2025] KEHC 4520 (KLR) , the Court pronounced as follows-
Notably, the court cannot grant stay of the impugned ruling as it dismissed the applicant’s application which in essence is a negative order and incapable of execution. This principle was enunciated by the Court of Appeal in Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya) [2015] eKLR where the court held as follows:-
An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been complied with or has partly been complied with.
30.
Similarly in Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others [2016] eKLR the Court of Appeal expounded on stay of execution stating:-
In Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah [2008] eKLR the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows:-
The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.
The same reasoning was applied in the case of Raymond M. Omboga vs Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:-
The order dismissing the application is in the nature of a negative order and is incapable of stay of execution, save perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is incapable of execution, there can be no stay of execution of such an order….The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise….
The matter should rest there except that the applicant also seeks for orders compelling the return of the child to Kenya and temporary custody of the minor to him. These are the same orders that are sought in the appeal. The grant of these orders at the interim stage will not only embarrass the appeal but also pre-empt the appeal. In addition the issue is whether it is in the best interests of the child to order for her removal for her return when the contentious issues have not been resolved either way.
I would also note that the evidence placed before the Court of allegedly nefarious activities of the respondent does not meet the evidentiary threshold especially on account of the fact that the screen grabs of the pornographic sites do not comply with Section 106B of the evidence Act and therefore must be struck out, this was the finding of the Court in Dardanelli & 6 others v Tilito & 3 others [2025] KEELC 392 (KLR) -
It is the opinion of this court that lack of a certificate or certificates under section 106 B with respect to the process followed in procuring the present affidavit or the procurement of the attendance of the deponent at the commissioning table is fatal and the said affidavit must be struck out.
Accordingly, I will proceed to strike out the offending paragraphs of the applicants further affidavit sworn on 1 st October 2025 and the annextures. The minor is currently in Canada with her mother, the Court had an opportunity to observe the child online on the application of the applicant. The Court did not observe anything that would necessitate the removal of the child at the interim stage from Canada. The averments by the appellant are allegations that will be considered at the hearing of the appeal. In DMO v TKT & another [2025] KEHC 3109 (KLR) , the Court observed as follows-
Removing the minor from a stable home environment that had so far been provided for her by her maternal grandparents and taking her to a totally new place would not serve her best interests considering that she was only about four years as at the time of delivery of the judgment. Section 103 of the Children Act outlined principles that must be considered by the court when making custody orders.
The respondents demonstrated their capability to take care of the minor by offering her a stable environment to grow and thrive, it would not be in the minor’s interest to remove her from the loving care of her grandparents and hand her over to the care of the appellant’s sister. It would be appropriate to grant the parties joint legal custody of the minor since the appellant was her only surviving parent. The respondents were appointed as the minor’s guardians in accordance with the provisions of section 123(2) of the Children Act.
I agree with the reasoning of that Court and find that the applicant has not laid a basis for this Court to exercise its discretion in his favour.
Accordingly,
The application dated 23 rd July 2025 is dismissed in its entirety
The appellant will proceed and prepare and serve record of Appeal within 60 days.
Mention before the Deputy Registrar on 4 th February 2026 to confirm compliance and take further directions
Each party will bear their own costs.
Leave to appeal is granted, any party exercising their right of appeal to do so within 30 days.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…14 th day of November 2025
'
By Notice of Motion dated 23 rd July 2025, presented under Section 5(1), Article 53 of the Constitution of Kenya and Sections 8, 11, 13, 16, 31 , 32, 102, 103, 108, 141, 143 and 150 of the Children’s Act, Sections 1A and 3A of the Civil procedure Act and Order 41 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, the applicant seeks the following orders-
Spent
THAT this Honourable Court be pleased to stay the orders issued in Milimani Magistrate’s Court Children’s Case No. E1947 of 2023 dated 10 th July 2025 in reference to the Application dated 16 th May 2025.
THAT this Honourable Court do issue an order for the immediate return of the minor herein ( Geo Libaisi Carwen Boyd of Kenyan passport no. CK 58823 and British Passport No. 127221075) to Kenya or in the alternative, the Respondent be ordered to release the minor- Geo Libaisi Carwen Boyd together with her passport documents Kenyan Passport no. CK 58823 and british Passport No. 127221075 to the applicant ( Darrell Boyd) for return to Kenya.
THAT this Honourable Court be pleased to grant the Appellant ( Darell Boyd) temporary care and control of the minor herein ( Geo Libaisi Carwen Boyd) pending the hearing and determination of the intended appeal.
THAT the Honourable Court be pleased to make any other order it deems just
THAT the costs of this application be provided for.
The application is supported by affidavit sworn by the applicant on 23 rd July 2025 and further affidavit sworn on 1 st October 2025. The Respondnet has sworn an affidavit in opposition on 24 th September 2025. The application was canvassed via written submissions.
SUMMARY OF PLEADINGS
The applicant and respondent are the biological parents of the minor subject of the proceedings. The trial Court delivered its judgment on 11 th October 2024, directing inter alia that the parents would have joint legal custody, the respondent herein would have actual custody, care and control of the minor. The Court further gave orders relating to the appellants access to the minor both virtual and physical and provided for the appellant to apply to court for leave to travel with the minor out of the country. The Court grant the appellant unsupervised access to the minor while he was in Kenya. The parents were also to share parental responsibility for the minor, with the appellant meeting the medical and educational needs of the minor, while the respondent would provide for the clothing. Each parent would provide food, shelterand entertainment whils they had custody of the minor.
Soon after the judgment the parties were back in Court with the Appellant seeking to review the judgment of 11 th October 2024 and the appellant seeking leave to travel with the child on holiday. Both applications were dismissed in ruling delivered on 9 th December 2024. There were a number of applications culminating in the one subject of this application dated 16 th May 2025, where on learning that the applicant left the country with the minor without leave of the Court, sought the return of the minor. In ruling dated 10 th July 2025, the Court declined to grant the orders sought thus precipitating the appeal and the application seeking interim orders pending the appeal.
The applicant filed further affidavit sworn on 1 st October 2025 in which he substantiates the allegations of the applicant engaging and exposing the minor to pornographic material by presenting screen grabs of social media pages.
The Respondent opposes the application and has sworn affidavit on 24 th September 2025, she denies the charge that she has exposed the minor to violence, paedophilia or sexual work or any form of abuse. She terms the allegations as scandalous.
She counters the averments of the applicant by stating that he has been hostile and threatening towards her and her family members. The orders sought by the applicant are not in the best interests of the minor as they would remove her from her safe environment.
She confirms that she was interviewed by the police on the allegations made against her and there has been no follow up by the police. She travelled to Canada on a visitors visa but has since applied for protection on account of the harassment by the applicant. It is the applicant who is risking harm to the minor by the posts on social media.
Prior to her departure she obtained protection orders against the applicant in MCFC E037 of 2025. It is averred that it is not in the best interests of the child to grant the orders sought.
The Application was canvassed via written submissions.
SUMMARY OF APPLICANT’S SUBMISSIONS
The Applicant frames the issues for determination as-
Whether the Applicant has an arguable appeal warranting the stay orders
Whether the applicant has demonstrated that substantial loss may result rendering the appeal nugatory
Whether the Kenyan Courts have jurisdiction to hear and determine this matter
Who bears the costs of this suit
On the first issue reference is made to the decision in Esso Motor Sales v Commissioner of Dmoestic Taxes [2022] KETAT 1140 (KLR) and it is submitted that the applicant has established that he has an arguable appeal. It is urged that the thrust of the appeal is that it has been demonstrated that the respondent left the Country without leave of the appellant Further that the decision of the respondent to leave the Country is in contempt of the Court order granting joint custody of the minor to the parents.
In any event the best interest principle as articulated in the decision of SMK v ANK [2022] eKLR favours that he be granted custody of the minor in the circumstances. It is submitted that it is not in the chil’''s best interests to be seperated from a parent.
On the 2 nd issue, it is submitted that unless the orders are granted the applicant will suffer substantial loss and reliance placed on the decision in S K K v S K K [2019] KEHC 11910 (KLR) and Gianfrance Manenthi & Another v Africa Merchant Asssurance Company [2019] KEHC 7586 (KLR). It is submitted that the child is currently exposed to pornographic material and paedophilia and abuse by the applicant. At the same time she is not attending school and she is deprived of parental care.
On the 3 rd issue, it is submitted that the Kenyan Court does have jurisdiction to hear the matter, contrary to the finding of the trial court, especially in the current case where it is submitted that the child is exposed to harm. Reference is made to the decision n ALAO v SOO ( Civil Appeal E067 of 2023) [2024] KEHC 13098 (KLR) (Family) (28 th October 2024) (Judgment)
On the 4 th issue, it is submitted that the respondent should bear the costs and reference made to the decision in Ali v County Government of Mombasa & Another [2024] eKLR.
SUMMARY OF RESPONDENT’S SUBMISSIONS
The respondent frames the issues for determination as-
Whether the orders of 10 th July 2025 delivered in MCCHCC E1947 of 2023 in reference to the application dated 16 th May 2025 ought to be stayed?
Whether the appellant/ applicant has justified the return of the minor and / or her travel documents back to Kenya
Whether the appellant/ applicant ought tto be granted temproray care and control of the minor herein?
Who should bear the costs of this application?
It is submitted that the application does not meet the legal threshold of Order 42 rule 6(2) of the Civil procedure rules. It is submitted that the order issued was not a positive order and so in effect there is nothing to stay. It is submitted that the respondent has not demonstrated that he will suffer substantial loss. A stay would in effect grant the applicant the orders that he was denied and there is no executable decree.
On the 2 nd issue it is submitted that no basis has been laid for the return of the child to the country, contrary to Article 53 (2) of the Constitution of Kenya which obligates courts to give primacy to the best interests of a child in all matters. Reliance is placed on the decision in JKM v PO & Another [2023] eKLR in which the court cited the decision Re R (Childs) ( Wardship) Jurisdiction) 1981 2 FLR 416. The respondent further relies on the Supreme Court decision in MAK v RMAA & 4 Others [2023] eKLR .
Further it is submitted that it is not in the interests of the child to remove her from her current environment and reference made to the decision in SMM v ANK [2022] eKLR . It is submitted that in any event that the applicant has not discharged the evidentiary burden in relation to the allegations that the has made and reference made to Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334. The Repsondent submits that the Court is bound to grant orders that are enforceable, the sought orders are beyond the jurisdiction of the Court.
It is submitted that the continued stay of the minor is not detrimental to her well being as was demonstrated in SAJ v AOG & Another [2019].
On the 3 rd issue it is submitted that it has not been demonstrated that it is in the minor’s interests to grant the applicant temporary care and control of the minor.
On the issue of costs, it is submitted that the respondent should bear the costs and reference made to the decision in Republic versus Rosemary Wairimu Munene ( Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Limited [2014] eKLR.
ANALYSIS AND DETERMINATION.
I have considered the application before me, the Reply filed by the Respondent as well as the written submissions filed by each party. The issue for determination is whether the Court should grant stay of proceeedings as sought pending the hearing and determination of the appeal.
As this matter concerns the welfare and well-being of the children, I am bound by the Constitutional imperative at Article 53 (2) of the Constitution of Kenya, 2010 that states:
(2)A child’s best interests are of paramount importance in every matter concerning the child.
Likewise, the Children Act at section 8(1) provides as follows:-
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Own emphasis)
The principles for granting stay of execution or proceedings in children matters was well settled in the case of Bhutt v Bhutt Mombasa HCCC No. 8 of 2014 , the Court held as follows:-
“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis).
I reiterate that in making a decision on this matter the primary consideration is the best interests of the children, which of necccesity will trump the wishes and desires of the parents and treat them as secondary.
In exercising discretion in respect to stay of execution, Order 42 Rule 6(2) provide that the Court should be satisfied that:-
The applicant will suffer substantial loss if a stay is not granted;
The application for stay has been brought without undue delay; and
The applicant has provided security for the due performance of the decree.
In the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi , Civil Appeal No 326 of 2013 it was stated that:-
to my mind, the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;
Whether the applicant has established that he/she has a prima facie arguable case.
Whether the application was filed expeditiously and
Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.
A preliminary issue has been raised as to whether or not the Court can grant stay in the current circumstances, where the trail court dismissed the application of the applicant. The Courts have severally held that negative orders are incapable of being stayed. In Thuo v Kimani & 2 others [2025] KEHC 4520 (KLR) , the Court pronounced as follows-
Notably, the court cannot grant stay of the impugned ruling as it dismissed the applicant’s application which in essence is a negative order and incapable of execution. This principle was enunciated by the Court of Appeal in Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya) [2015] eKLR where the court held as follows:-
An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been complied with or has partly been complied with.
30.
Similarly in Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others [2016] eKLR the Court of Appeal expounded on stay of execution stating:-
In Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah [2008] eKLR the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows:-
The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.
The same reasoning was applied in the case of Raymond M. Omboga vs Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:-
The order dismissing the application is in the nature of a negative order and is incapable of stay of execution, save perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is incapable of execution, there can be no stay of execution of such an order….The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise….
The matter should rest there except that the applicant also seeks for orders compelling the return of the child to Kenya and temporary custody of the minor to him. These are the same orders that are sought in the appeal. The grant of these orders at the interim stage will not only embarrass the appeal but also pre-empt the appeal. In addition the issue is whether it is in the best interests of the child to order for her removal for her return when the contentious issues have not been resolved either way.
I would also note that the evidence placed before the Court of allegedly nefarious activities of the respondent does not meet the evidentiary threshold especially on account of the fact that the screen grabs of the pornographic sites do not comply with Section 106B of the evidence Act and therefore must be struck out, this was the finding of the Court in Dardanelli & 6 others v Tilito & 3 others [2025] KEELC 392 (KLR) -
It is the opinion of this court that lack of a certificate or certificates under section 106 B with respect to the process followed in procuring the present affidavit or the procurement of the attendance of the deponent at the commissioning table is fatal and the said affidavit must be struck out.
Accordingly, I will proceed to strike out the offending paragraphs of the applicants further affidavit sworn on 1 st October 2025 and the annextures. The minor is currently in Canada with her mother, the Court had an opportunity to observe the child online on the application of the applicant. The Court did not observe anything that would necessitate the removal of the child at the interim stage from Canada. The averments by the appellant are allegations that will be considered at the hearing of the appeal. In DMO v TKT & another [2025] KEHC 3109 (KLR) , the Court observed as follows-
Removing the minor from a stable home environment that had so far been provided for her by her maternal grandparents and taking her to a totally new place would not serve her best interests considering that she was only about four years as at the time of delivery of the judgment. Section 103 of the Children Act outlined principles that must be considered by the court when making custody orders.
The respondents demonstrated their capability to take care of the minor by offering her a stable environment to grow and thrive, it would not be in the minor’s interest to remove her from the loving care of her grandparents and hand her over to the care of the appellant’s sister. It would be appropriate to grant the parties joint legal custody of the minor since the appellant was her only surviving parent. The respondents were appointed as the minor’s guardians in accordance with the provisions of section 123(2) of the Children Act.
I agree with the reasoning of that Court and find that the applicant has not laid a basis for this Court to exercise its discretion in his favour.
Accordingly,
The application dated 23 rd July 2025 is dismissed in its entirety
The appellant will proceed and prepare and serve record of Appeal within 60 days.
Mention before the Deputy Registrar on 4 th February 2026 to confirm compliance and take further directions
Each party will bear their own costs.
Leave to appeal is granted, any party exercising their right of appeal to do so within 30 days.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…14 th day of November 2025
'