1. The subject of this ruling is the Application dated 20 th November, 2025 taken out by Elijah Kipkoech Mutai , the Appellant/Applicant herein. In the aforesaid Application, the Appellant sought inter alia an order for Stay of Execution of Proceedings in Kericho Children’s Case No.E045 of 2025 pending Appeal.
2. The Applicant filed an Affidavit he swore in support of the Motion. When served with the Application, Eucabeth Chepkoech, the Respondent herein did not file any response hence the Application proceeded exparte.
3. It is the averment of the Applicant that on 22 nd September, 2025, the Trial Court issued an order directing the Applicant to pay the Respondent Kshs.25,000/= per month as maintenance and school fees for their three children.
4. He further averred that he only sired one child with the Respondent. He claimed that the Respondent had two children belonged to another man. He argued that it would be unfair to compel him to pay for maintenance and school fees of children who did not belong to him. The Applicant filed this Appeal and sought to have the decision of the Learned Principal Magistrate to be set aside.
5. He is now before this Court seeking for Stay of Execution of the decision of the Trial Court pending Appeal.
6. Order 42 rule 6 of the Civil Procedure Rules clearly spells the conditions to be considered before granting an order for stay. First , is that the Applicant should show that unless the order for stay is granted, he would suffer substantial loss. Secondly , that the Application must be made without unreasonable delay and Thirdly , that Security should be provided for the due performance of the decree.
7. The record shows that the decision being challenged on Appeal was made on 22 nd September, 2025 while the instant Application was filed on 28 th November, 2025. I am convinced that the Application was timeously filed. The question is whether the Applicant has shown the substantial loss he would suffer if the order for stay is denied.
8. I have perused the Application plus the Affidavit he swore in Support of the Application. The Applicant has made a general assertion that the Appeal will be rendered nugatory. He has not explained how the Appeal would be rendered nugatory. It is not claimed that the Respondent would not be in a position to repay the money if the Appeal turns successful.
9. I find that the Applicant has failed to show the substantial loss he would suffer should the order stay be denied.
10. The other condition which has to be taken into account is the Provision for Security for the due performance of the decree. It is clear from the pleadings and the facts deponed in the Supporting Affidavit that the Applicant did not offer to provide any security for the due performance of the decree.
11. In the end, I find that the instant motion does not meet the requisite conditions set out under Order 42 rule 6 of the Civil Procedure Rules. Consequently, the Application is found to be without merit. The same is dismissed with costs to the Respondent.
Dated, signed and delivered at Kericho this 26 th day of February, 2026.
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
No Appearance
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2. The Applicant filed an Affidavit he swore in support of the Motion. When served with the Application, Eucabeth Chepkoech, the Respondent herein did not file any response hence the Application proceeded exparte.
3. It is the averment of the Applicant that on 22 nd September, 2025, the Trial Court issued an order directing the Applicant to pay the Respondent Kshs.25,000/= per month as maintenance and school fees for their three children.
4. He further averred that he only sired one child with the Respondent. He claimed that the Respondent had two children belonged to another man. He argued that it would be unfair to compel him to pay for maintenance and school fees of children who did not belong to him. The Applicant filed this Appeal and sought to have the decision of the Learned Principal Magistrate to be set aside.
5. He is now before this Court seeking for Stay of Execution of the decision of the Trial Court pending Appeal.
6. Order 42 rule 6 of the Civil Procedure Rules clearly spells the conditions to be considered before granting an order for stay. First , is that the Applicant should show that unless the order for stay is granted, he would suffer substantial loss. Secondly , that the Application must be made without unreasonable delay and Thirdly , that Security should be provided for the due performance of the decree.
7. The record shows that the decision being challenged on Appeal was made on 22 nd September, 2025 while the instant Application was filed on 28 th November, 2025. I am convinced that the Application was timeously filed. The question is whether the Applicant has shown the substantial loss he would suffer if the order for stay is denied.
8. I have perused the Application plus the Affidavit he swore in Support of the Application. The Applicant has made a general assertion that the Appeal will be rendered nugatory. He has not explained how the Appeal would be rendered nugatory. It is not claimed that the Respondent would not be in a position to repay the money if the Appeal turns successful.
9. I find that the Applicant has failed to show the substantial loss he would suffer should the order stay be denied.
10. The other condition which has to be taken into account is the Provision for Security for the due performance of the decree. It is clear from the pleadings and the facts deponed in the Supporting Affidavit that the Applicant did not offer to provide any security for the due performance of the decree.
11. In the end, I find that the instant motion does not meet the requisite conditions set out under Order 42 rule 6 of the Civil Procedure Rules. Consequently, the Application is found to be without merit. The same is dismissed with costs to the Respondent.
Dated, signed and delivered at Kericho this 26 th day of February, 2026.
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
No Appearance
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