[1] Before this court is a Notice of Motion dated 13 th January 2026 brought by the Appellant/Applicant, Erick Kipkorir Chepkwony. The application seeks a temporary stay of execution of the judgment, findings, and orders of the Children’s Court delivered on 7 th January 2026 pending the hearing and determination of the appeal herein.
[2] The impugned judgment was delivered in Kericho Children’s Court Case No. E005 of 2021. Among the orders made by the learned trial magistrate, Hon. F. M. Nyakundi, PM, was an order that the Appellant pays KShs. 50,000 per month towards the maintenance of the minor child, with effect from February 2026, in addition to findings on substantial arrears.
[3] The Appellant, being aggrieved by the said judgment, filed a Memorandum of Appeal on 13 th January 2026. Simultaneously, he filed the present application for stay pending appeal.
[4] The Appellant seeks the stay on the following principal grounds as set out in his Notice of Motion and Supporting Affidavit sworn on 13 th January 2026, THAT;
· He has filed a Memorandum of Appeal raising arguable grounds with high chances of success, particularly challenging the quantum of maintenance and the finding on arrears.
· The maintenance order of KShs. 50,000 per month is excessive, punitive, and beyond his financial means.
· He has been remitting KShs. 10,000 monthly to the Respondent towards the maintenance of the minor, which demonstrates his willingness but genuine inability to pay the ordered amount.
· Unless stay is granted, he faces execution and contempt proceedings, which would occasion substantial loss and render the appeal nugatory.
· The application has been made without unreasonable delay (filed within 6 days of the judgment).
· He is ready and willing to abide by any reasonable conditions that this Honourable Court may impose in the interest of justice.
[5] The Respondent opposes the application through a Replying Affidavit sworn on 13 th March 2026. Her case is as follows that;
· The trial court’s judgment followed a full hearing, and the maintenance order was made after consideration of the child’s needs and the parties’ means.
· Prior to the final judgment, the trial court had on 4 th April 2023 issued interim orders requiring the Appellant to pay KShs. 25,000 per month plus school fees and educational expenses.
· The Appellant persistently defaulted on the interim orders, leading to execution proceedings, a Notice to Show Cause, and eventually his committal to civil jail in December 2024/January 2025.
· As at the date of judgment, the gross arrears stood at approximately KShs. 1,729,500.
· The Appellant’s allegation of inability to pay is false and contradicted by evidence placed before the trial court.
· The child’s needs are continuous, and a stay of maintenance would directly prejudice the child’s welfare.
· The Appellant cannot properly use the appeal process as a shield against performing his basic parental duty.
[6] The application is brought under Order 42 Rule 6 of the Civil Procedure Rules, which provides:
“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.”
[7] The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 418 established the following principles for stay of execution:
· The power to grant stay is discretionary and should be exercised so as not to prevent an appeal;
· A stay must be granted if there is no overwhelming hindrance, so that the appeal may not be rendered nugatory;
· The court will consider the special circumstances and unique requirements of each case.
[8] On what constitutes substantial loss, the court in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) held:
“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. The court should balance the interests of the applicant who seeks to preserve the status quo pending appeal against the interest of the respondent who is entitled to the fruits of his judgment.”
[9] Since this matter concerns a child, this court is constitutionally and statutorily obligated to give primacy to the best interests of the child. Article 53(2) of the Constitution of Kenya provides:
“A child’s best interests are of paramount importance in every matter concerning the child.”
[10] Similarly, Section 8(1)(a) of the Children Act, 2022 provides;
“In all actions concerning children... the best interests of the child shall be the primary consideration.”
[11] Regarding the court’s power to impose conditions on stay, the High Court in GJ (Prince TK (Minor)) v EKM (Civil Appeal E171 of 2025) [2025] KEHC 11914 (KLR) granted a stay of a Children’s Court maintenance order on condition that the respondent pay KShs. 15,000 monthly and continue paying school fees. The court held that the risk of hardship to the child was mitigated by the continued monthly payments, while the stay preserved the applicant’s right to appeal the higher maintenance amount.
[12] Further, in NNK v CMK (Civil Appeal E141 of 2024) [2025] KEHC 18651 (KLR) , the court held that;
“The court has discretion to impose reasonable conditions for stay, including reduced monthly payments where the applicant demonstrates genuine financial constraints.”
[13] On unreasonable delay, the judgment was delivered on 7 th January 2026. The present application was filed on 13 th January 2026, a period of only six days. The application was made timeously and without any unreasonable delay. The Appellant satisfies this condition fully.
[14] On substantial loss, the Appellant argues that unless stay is granted, he will face execution and contempt proceedings. The Respondent has confirmed in her Replying Affidavit that the Appellant was previously committed to civil jail for defaulting on interim orders. The court in Harrison E. K. Kinyua v Winne Kahario Kinyua [2005] KEHC 870 (KLR) held that a magistrate is empowered to commit a defaulting party to imprisonment for non-payment of maintenance.
[15] I find that the Appellant’s fear of substantial loss is not misplaced. Exposure to civil jail would render the appeal nugatory, as the Appellant may have served a term of imprisonment before the appeal is heard and determined.
[16] However, this court must balance the Appellant’s fear of execution against the child’s right to maintenance. A blanket stay without any payment would leave the child entirely dependent on the Respondent and would not serve the best interests of the child as mandated by Article 53(2) of the Constitution.
[17] The overriding consideration is the welfare of the minor child. The child must not suffer because of the appeal. While the Appellant challenges the quantum of KShs. 50,000, he has consistently paid KShs. 10,000 per month as demonstrated by the M-Pesa statements annexed to his Supporting Affidavit. This demonstrates some capacity, albeit not at the level ordered by the trial court.
[18] The court in JM v MN (Civil Appeal E150 of 2024) [2026] KEHC 1501 (KLR) emphasized;
“The amount of maintenance must be proportionate to the parent’s financial ability... I must weigh this plea against his parental obligation to provide for the child.”
[19] Taking this into account, I find that the child’s best interests can be adequately protected by a conditional stay that requires the Appellant to continue making monthly payments at a level that is within his demonstrated capacity while the appeal proceeds.
[20] On the issue of security, the Appellant has stated in his Supporting Affidavit that he is “ready and willing to abide by any reasonable conditions that this Honourable Court may impose.” The Respondent has not proposed an alternative figure but opposes the application entirely.
[21] In NNK v CMK (supra) , the court held that the court has discretion to impose reasonable conditions for stay, including reduced monthly payments. Similarly, in F K M v N K M [2018] KEHC 9576 (KLR) , the High Court reviewed a maintenance order downward, holding that the Children Act empowers the court to diminish the amount payable.
[22] This court has considered the Respondent’s strong objection based on the Appellant’s history of default and his prior committal to civil jail. The court is mindful of the principle in PNM v JK [2020] KEHC 6455 (KLR) that court orders must be obeyed.
[23] However, the Appellant has demonstrated that he has been paying KShs. 10,000 monthly, which, although below the interim order of KShs. 25,000, shows some commitment. More importantly, the grant of a conditional stay with a reduced monthly payment will provide the Appellant with a clear and enforceable obligation that this court expects him to honour. Any default will result in the automatic lapse of the stay, allowing the Respondent to execute the full decree.
[24] Accordingly, the Notice of Motion dated 13 th January 2026 is allowed on the following terms:
a) There shall be a stay of execution of the judgment, findings, and orders of the Children’s Court delivered on 7 th January 2026 in Kericho Children’s Court Case No. E005 of 2021 pending the hearing and determination of the appeal herein on the following conditions:
i. The Appellant/Applicant shall pay to the Respondent KShs. 15,000 (Fifteen Thousand Kenya Shillings) per month towards the maintenance of the minor child, pending the hearing and determination of this appeal.
ii. The said monthly payment shall be made on or before the 5 th day of each month, with the first payment due on or before the 5 th day of the month following the date of this ruling.
b) In default of any of the above conditions, the stay shall automatically lapse and the Respondent shall be at liberty to execute the decree of the Children’s Court.
c) The costs of this application shall abide the outcome of the appeal.
Dated, Signed and Delivered at Nakuru this 21 st Day of May 2026.
J. K. SERGON
JUDGE
In the presence of: -
C/Assistant- Rutoh
Meli holding brief for Onyango for Respondent.
N/A for the Appellant.
[2] The impugned judgment was delivered in Kericho Children’s Court Case No. E005 of 2021. Among the orders made by the learned trial magistrate, Hon. F. M. Nyakundi, PM, was an order that the Appellant pays KShs. 50,000 per month towards the maintenance of the minor child, with effect from February 2026, in addition to findings on substantial arrears.
[3] The Appellant, being aggrieved by the said judgment, filed a Memorandum of Appeal on 13 th January 2026. Simultaneously, he filed the present application for stay pending appeal.
[4] The Appellant seeks the stay on the following principal grounds as set out in his Notice of Motion and Supporting Affidavit sworn on 13 th January 2026, THAT;
· He has filed a Memorandum of Appeal raising arguable grounds with high chances of success, particularly challenging the quantum of maintenance and the finding on arrears.
· The maintenance order of KShs. 50,000 per month is excessive, punitive, and beyond his financial means.
· He has been remitting KShs. 10,000 monthly to the Respondent towards the maintenance of the minor, which demonstrates his willingness but genuine inability to pay the ordered amount.
· Unless stay is granted, he faces execution and contempt proceedings, which would occasion substantial loss and render the appeal nugatory.
· The application has been made without unreasonable delay (filed within 6 days of the judgment).
· He is ready and willing to abide by any reasonable conditions that this Honourable Court may impose in the interest of justice.
[5] The Respondent opposes the application through a Replying Affidavit sworn on 13 th March 2026. Her case is as follows that;
· The trial court’s judgment followed a full hearing, and the maintenance order was made after consideration of the child’s needs and the parties’ means.
· Prior to the final judgment, the trial court had on 4 th April 2023 issued interim orders requiring the Appellant to pay KShs. 25,000 per month plus school fees and educational expenses.
· The Appellant persistently defaulted on the interim orders, leading to execution proceedings, a Notice to Show Cause, and eventually his committal to civil jail in December 2024/January 2025.
· As at the date of judgment, the gross arrears stood at approximately KShs. 1,729,500.
· The Appellant’s allegation of inability to pay is false and contradicted by evidence placed before the trial court.
· The child’s needs are continuous, and a stay of maintenance would directly prejudice the child’s welfare.
· The Appellant cannot properly use the appeal process as a shield against performing his basic parental duty.
[6] The application is brought under Order 42 Rule 6 of the Civil Procedure Rules, which provides:
“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.”
[7] The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 418 established the following principles for stay of execution:
· The power to grant stay is discretionary and should be exercised so as not to prevent an appeal;
· A stay must be granted if there is no overwhelming hindrance, so that the appeal may not be rendered nugatory;
· The court will consider the special circumstances and unique requirements of each case.
[8] On what constitutes substantial loss, the court in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) held:
“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. The court should balance the interests of the applicant who seeks to preserve the status quo pending appeal against the interest of the respondent who is entitled to the fruits of his judgment.”
[9] Since this matter concerns a child, this court is constitutionally and statutorily obligated to give primacy to the best interests of the child. Article 53(2) of the Constitution of Kenya provides:
“A child’s best interests are of paramount importance in every matter concerning the child.”
[10] Similarly, Section 8(1)(a) of the Children Act, 2022 provides;
“In all actions concerning children... the best interests of the child shall be the primary consideration.”
[11] Regarding the court’s power to impose conditions on stay, the High Court in GJ (Prince TK (Minor)) v EKM (Civil Appeal E171 of 2025) [2025] KEHC 11914 (KLR) granted a stay of a Children’s Court maintenance order on condition that the respondent pay KShs. 15,000 monthly and continue paying school fees. The court held that the risk of hardship to the child was mitigated by the continued monthly payments, while the stay preserved the applicant’s right to appeal the higher maintenance amount.
[12] Further, in NNK v CMK (Civil Appeal E141 of 2024) [2025] KEHC 18651 (KLR) , the court held that;
“The court has discretion to impose reasonable conditions for stay, including reduced monthly payments where the applicant demonstrates genuine financial constraints.”
[13] On unreasonable delay, the judgment was delivered on 7 th January 2026. The present application was filed on 13 th January 2026, a period of only six days. The application was made timeously and without any unreasonable delay. The Appellant satisfies this condition fully.
[14] On substantial loss, the Appellant argues that unless stay is granted, he will face execution and contempt proceedings. The Respondent has confirmed in her Replying Affidavit that the Appellant was previously committed to civil jail for defaulting on interim orders. The court in Harrison E. K. Kinyua v Winne Kahario Kinyua [2005] KEHC 870 (KLR) held that a magistrate is empowered to commit a defaulting party to imprisonment for non-payment of maintenance.
[15] I find that the Appellant’s fear of substantial loss is not misplaced. Exposure to civil jail would render the appeal nugatory, as the Appellant may have served a term of imprisonment before the appeal is heard and determined.
[16] However, this court must balance the Appellant’s fear of execution against the child’s right to maintenance. A blanket stay without any payment would leave the child entirely dependent on the Respondent and would not serve the best interests of the child as mandated by Article 53(2) of the Constitution.
[17] The overriding consideration is the welfare of the minor child. The child must not suffer because of the appeal. While the Appellant challenges the quantum of KShs. 50,000, he has consistently paid KShs. 10,000 per month as demonstrated by the M-Pesa statements annexed to his Supporting Affidavit. This demonstrates some capacity, albeit not at the level ordered by the trial court.
[18] The court in JM v MN (Civil Appeal E150 of 2024) [2026] KEHC 1501 (KLR) emphasized;
“The amount of maintenance must be proportionate to the parent’s financial ability... I must weigh this plea against his parental obligation to provide for the child.”
[19] Taking this into account, I find that the child’s best interests can be adequately protected by a conditional stay that requires the Appellant to continue making monthly payments at a level that is within his demonstrated capacity while the appeal proceeds.
[20] On the issue of security, the Appellant has stated in his Supporting Affidavit that he is “ready and willing to abide by any reasonable conditions that this Honourable Court may impose.” The Respondent has not proposed an alternative figure but opposes the application entirely.
[21] In NNK v CMK (supra) , the court held that the court has discretion to impose reasonable conditions for stay, including reduced monthly payments. Similarly, in F K M v N K M [2018] KEHC 9576 (KLR) , the High Court reviewed a maintenance order downward, holding that the Children Act empowers the court to diminish the amount payable.
[22] This court has considered the Respondent’s strong objection based on the Appellant’s history of default and his prior committal to civil jail. The court is mindful of the principle in PNM v JK [2020] KEHC 6455 (KLR) that court orders must be obeyed.
[23] However, the Appellant has demonstrated that he has been paying KShs. 10,000 monthly, which, although below the interim order of KShs. 25,000, shows some commitment. More importantly, the grant of a conditional stay with a reduced monthly payment will provide the Appellant with a clear and enforceable obligation that this court expects him to honour. Any default will result in the automatic lapse of the stay, allowing the Respondent to execute the full decree.
[24] Accordingly, the Notice of Motion dated 13 th January 2026 is allowed on the following terms:
a) There shall be a stay of execution of the judgment, findings, and orders of the Children’s Court delivered on 7 th January 2026 in Kericho Children’s Court Case No. E005 of 2021 pending the hearing and determination of the appeal herein on the following conditions:
i. The Appellant/Applicant shall pay to the Respondent KShs. 15,000 (Fifteen Thousand Kenya Shillings) per month towards the maintenance of the minor child, pending the hearing and determination of this appeal.
ii. The said monthly payment shall be made on or before the 5 th day of each month, with the first payment due on or before the 5 th day of the month following the date of this ruling.
b) In default of any of the above conditions, the stay shall automatically lapse and the Respondent shall be at liberty to execute the decree of the Children’s Court.
c) The costs of this application shall abide the outcome of the appeal.
Dated, Signed and Delivered at Nakuru this 21 st Day of May 2026.
J. K. SERGON
JUDGE
In the presence of: -
C/Assistant- Rutoh
Meli holding brief for Onyango for Respondent.
N/A for the Appellant.