1. Before this court is a Notice of Motion application dated 3rd April 2025, vide which the appellant/applicant seeks the following orders:-
a) Spent;
b) Spent;
c) Spent;
d) That the honourable court be pleased to grant orders of stay order numbers 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025, in Tononoka Children’s Case No. E397 of 2024; Fareed Mahmood Omar v Warda Athman Ali, pending the hearing and determination of this appeal;
e) That the honourable court be pleased to grant orders of stay of the proceedings in the Tononoka Children’s Case No. E397 of 2024 Fareed Mahmood Omar vs Warda Athman Ali pending hearing and determination of this appeal; and
f) That the costs of this application be in the cause.
2. The application is premised on the grounds stated in the body of the motion and also in the supporting affidavit of the appellant/applicant. The appellant/applicant, whom I shall hereafter refer to as “Fareed”, stated that he filed a Notice of Motion application dated 22nd November 2024, seeking shared custody orders after repeated frustrations by the respondent in allowing him access to the children. On her part, the respondent, whom I shall hereafter refer to as “Warda”, filed a Notice of Motion application dated 3rd December 2024, seeking maintenance orders.
3. Fareed stated that the trial court posted its ruling on the CTS on 26th February 2025, one party’s application only. The court directed that the other ruling would be delivered on 26th March 2025. On the said date, the court posted its ruling and made another determination on the respondent's application, issuing orders that conflicted with those of 26th February, 2025. In the first ruling, the court ordered him to pay a monthly upkeep of Kes.6,000/-, school fees, madrassa fees, and school uniforms. In the second ruling, the court ordered him to cater for school fees and all school-related expenses and pay an additional Kes.10,000/- monthly upkeep. Provide medical and clothing.
4. He stated that the said orders 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025, are beyond his financial means and he is at risk of being rendered financially destitute as his current salary is Kes.40,321.18. He averred that he has other dependents, including his wife, child, and elderly mother. Fareed contended that he had made every effort to improve his financial standing, including seeking alternative employment with better pay, but he had yet to succeed.
5. He stated that no prejudice will be caused to the minor if the orders sought are issued and urged the court to allow the application as prayed.
6. In response, the Warda filed grounds of opposition, opposing the application herein on the following grounds:-
a) THAT the Instant Application by the Appellant/Applicant offends Article 53 (2) of the Constitution and Section 8 of the Children Act 2022, which expounds on the duty of this Honourable Court to uphold the best interests of children as it seeks to indiscriminately ONLY stay orders that provide for the maintenance of the minors herein in the ruling dated 26th March 2025 in Tononoka Children’s Case No. E397 of 2024; Fareed Mahmood Omar vs. Warda Athman Ali, which is contrary to the best interests of the minors, namely, Mahmood born on 16th January 2017, Ali born on 27th January 2018 and Amir born on 25th January 2020 (minors herein);
b) THAT the Instant Application by the Appellant/Applicant in its very essence seeks to usurp the jurisdiction of the Trial Court (Children's Court at Tononoka Children’s Case No. E397 of 2024), to issue interim orders of maintenance as granted by Section 117 of the Children Act 2022, as read with Section 91 of the Children Act, 2022, which provisions grants the Trial Court the sole original jurisdiction to determine all disputes in regards to maintenance and custody of Children;
c) THAT the instant application by the Appellant/Applicant, which connivingly seeks stay of orders 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025 in Tononoka Children Case No. E397 of 2024 Fareed Mahmood Omar vs Warda Athman Ali pending hearing and determination of the appeal has not met the threshold for grant of orders of stay of orders pending appeal as per Order 42 Rule 6 (2) of the Civil Procedure Rules 2010, which makes it abundantly clear that:-
i) A party that seeks a stay of execution pending appeal should satisfy the court that it stands to suffer substantial loss if the said orders are not granted. In the instant matter, the appellant/applicant has not demonstrated the substantial loss they stand to suffer as required by Order 42 Rule 6 (2) (a) of the Civil Procedure Rules 2010, especially noting that the appellant/applicant is the biological father of the minors herein and is a man of means, formally employed at NEMA, earning a gross salary of Kes.151, 290/-; and
ii) Further, the Appellant/Applicant has not offered/provided before this Honourable Court any security of cost or agreed to abide to orders for security of costs that may be issued by this Honourable Court for the due performance of orders as may ultimately be binding on him, as strictly required by Order 42 Rule 6 (2) (b) of the Civil Procedure Rules, 2010.
7. The application was canvassed by way of written submissions. I will provide a summary of the parties' submissions below.
8. The applicant, through his advocates, Mwashushe & Company Advocates, filed written submissions dated 5th June 2025. Counsel submitted on three issues, namely: whether the impugned maintenance orders should be stayed pending appeal; whether the children’s court proceedings should be stayed pending the appeal; and who should bear the costs of the application.
9. On the first issue, counsel relied on Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 and submitted that the application and the appeal were filed without unreasonable delay.
10. Further, the appellant is aggrieved by the maintenance orders issued on 26th March 2025, which impose an excessive financial burden on him, and compliance with the same will cause him undue financial hardship. It was submitted that the risk of execution proceedings being brought against the appellant, including committal proceedings, was clear and present and posed a risk to his liberty. Counsel urged that, as this is a children’s matter, the loss incurred in compliance with the impugned orders is not revocable. If the appeal succeeds, the applicant will have suffered irreparable financial loss, rendering a successful appeal pyrrhic.
11. Counsel submitted that the minor whose interest is paramount will not be adversely affected, as they will be adequately provided for under the maintenance orders that were issued on 26th February 2025. Ms Mwashushe stated that it would be in the interest of the minors that the maintenance order be stayed and the parties be directed to comply with the orders of 26th February 2025.
12. Counsel submitted that, this being a children’s matter, the provision of security does not apply to the application herein and the appeal.
13. On the second issue, counsel relied on Order 42 rule 6(1) of the Civil Procedure Rules and submitted that the appeal and the application were filed timely as they were filed within eight days of the delivery of the impugned ruling.
14. On whether the appeal will be rendered nugatory if the proceedings are not stayed, counsel submitted that the memorandum of appeal dated 3rd April 2025 raises arguable grounds on the procedural and substantive legality of the two conflicting rulings dated 26th February 2026 and 26th March 2025. The appeal also questions the trial court’s unilateral interference with the maintenance orders of 26th February 2025 and the apportionment of the bulk of financial responsibility to the applicant, despite the respondent’s proven capacity to meet the children's needs. It also seeks to have the suit transferred to another magistrate for disposition due to bias by the trial court. That all these are arguable issues, and if an order staying the proceedings is not issued, the appeal will be rendered nugatory.
15. On costs, counsel submitted that the application was brought in the interest of the minors and thus each party should bear their own costs. Counsel urged the court to allow the application as prayed.
16. The respondent, on the other hand, through her advocates MPL Advocates LLP, filed her written submissions dated 23rd May 2025. Counsel submitted on four issues.
17. The first issue, as identified by the counsel for the respondent, is whether the applicant’s application herein contravenes the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. Counsel submitted that the applicant has not demonstrated the substantial loss he will suffer as he is a person of means, formally employed at NEMA, earning a gross salary of Kes.151,290/-. That the applicant has not provided security for the due performance of orders, as may ultimately be binding on him.
18. The second issue was whether the applicant’s application herein is an afterthought, frivolous, vexatious, a non-starter and an abuse of this court process. Counsel submitted that the application is an abuse of court process, as it offends the principle of the best interest of a child, seeks to usurp the jurisdiction of the trial court, was filed to evade parental responsibility, and that it is an afterthought, given that the applicant continues to enjoy the other orders.
19. Counsel submitted that the applicant does not have an arguable appeal with chances of success.
20. On the third issue whether the applicant’s application herein defeats the oxygen principle (overriding objective) as provided for under Section 1A and 1B of the Civil Procedure Act Cap 21, counsel submitted that it would be unfair if the court exercises its jurisdiction and grants a stay of proceedings as the same will only serve the purpose of delaying the suit before the trial court, denying the respondent her right to a fast and expeditious hearing.
21. On the fourth issue, which party should bear the costs of the application, counsel relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event and urged the court to award costs to the respondent.
22. In conclusion, counsel urged the court to find that the applicant’s application had no merit and dismiss the same with costs.
23. I have considered the application, the response thereto, as well as the submissions of the parties. The court must now determine if there should be a stay of the execution of the ruling, and secondly, whether the proceedings should also be stayed.
24. I will first set out the statutory underpinnings of the children's law in Kenya. This is found in the Constitution of Kenya, 2010 and the Children Act, 2022. Both of these provide that the best interest of the child is the primary consideration in all matters concerning a child. Article 53 (2) of the Constitution stated that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
Section 8(1) of the Children Act, 2022, for its part states that:-
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies -
(a) The best interests of the child shall be the primary consideration;
(b) The best interests of the child shall include, but shall not be limited to, the considerations set out in the First Schedule.”
25. The court in the case of LDT v PAO [2021] KEHC 2944 (KLR stated:-
“The principles for granting stay of execution in children matters was well settled in the case of Bhutt v. Bhutt , Mombasa HCCC NO. 8 of 2014 (O.S.), where the Court stated 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.”
26. Order 42, Rule 6 (1) and (2) of the Civil Procedure Rules provides that:-
1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
2. 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.
27. From the provision above, it is evident that in the issuance of stay of execution orders, the court has to consider three factors, namely:-
(i) Substantial loss;
(ii) The application has been made without unreasonable delay; and
(iii) Security.
In children matters, the court must also consider and determine whether the grant or refusal of a stay will be in the best interest of the children.
28. In discussing substantial loss, the court in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR) stated:-
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
29. Would the applicant suffer substantial loss? Or put differently, is the loss that Fareed claims that he will suffer, one that would render the appeal nugatory? I have considered the orders made by the Court below. Arguably, the said court made contradictory orders in February and March 2025. I say arguably, as this Court has not considered the said orders with finality. The responsibilities placed on him deserve deeper interrogation, too, as they may be inordinate. Having considered the parties' respective submissions, I am of the view that if a stay of execution is not issued, the applicant will suffer substantial loss.
30. On the second test, I note that the application was filed without undue delay. The said test is therefore met.
31. I hold the view that the provision of security is neither necessary nor appropriate in children's matters.
32. What of the best interest of the children? In my view, if the orders of 26th March 2025 are stayed as prayed, those of 26th February 2025 will remain in effect. I therefore find and hold that a stay of execution of the said orders will not be against the best interest of the children. I have considered the two subject rulings of 26th February 2025 and 26th March 2025, and the issues raised by the applicant are evident. It’s also my view that the applicant has an arguable appeal and that the application was filed without undue delay.
33. The upshot of the foregoing is that I find merit in the application for stay of execution of the impugned ruling and allow it as prayed.
34. I now turn to the prayer for stay of proceedings. A stay of proceedings is a drastic remedy that is granted sparingly in the clearest of cases. The court in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) stated:-
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added).”
35. The applicant is aggrieved by the decision of the court below. It is also clear to me that he is not happy with the way the trial magistrate has conducted the proceedings and wishes, if the appeal is successful, for the same to be heard by a different court.
36. Under the circumstances of this case, I find and hold that the application herein has merit. The same is allowed strictly on the condition that the appellant/applicant will continue to comply with the orders of 26th February 2025.
37. Due to the nature of the matter, I make no orders as to costs.
38. Orders accordingly.
Dated and signed in Mombasa, this 30th day of July 2025. Delivered virtually through Microsoft TEAMS.
a) Spent;
b) Spent;
c) Spent;
d) That the honourable court be pleased to grant orders of stay order numbers 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025, in Tononoka Children’s Case No. E397 of 2024; Fareed Mahmood Omar v Warda Athman Ali, pending the hearing and determination of this appeal;
e) That the honourable court be pleased to grant orders of stay of the proceedings in the Tononoka Children’s Case No. E397 of 2024 Fareed Mahmood Omar vs Warda Athman Ali pending hearing and determination of this appeal; and
f) That the costs of this application be in the cause.
2. The application is premised on the grounds stated in the body of the motion and also in the supporting affidavit of the appellant/applicant. The appellant/applicant, whom I shall hereafter refer to as “Fareed”, stated that he filed a Notice of Motion application dated 22nd November 2024, seeking shared custody orders after repeated frustrations by the respondent in allowing him access to the children. On her part, the respondent, whom I shall hereafter refer to as “Warda”, filed a Notice of Motion application dated 3rd December 2024, seeking maintenance orders.
3. Fareed stated that the trial court posted its ruling on the CTS on 26th February 2025, one party’s application only. The court directed that the other ruling would be delivered on 26th March 2025. On the said date, the court posted its ruling and made another determination on the respondent's application, issuing orders that conflicted with those of 26th February, 2025. In the first ruling, the court ordered him to pay a monthly upkeep of Kes.6,000/-, school fees, madrassa fees, and school uniforms. In the second ruling, the court ordered him to cater for school fees and all school-related expenses and pay an additional Kes.10,000/- monthly upkeep. Provide medical and clothing.
4. He stated that the said orders 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025, are beyond his financial means and he is at risk of being rendered financially destitute as his current salary is Kes.40,321.18. He averred that he has other dependents, including his wife, child, and elderly mother. Fareed contended that he had made every effort to improve his financial standing, including seeking alternative employment with better pay, but he had yet to succeed.
5. He stated that no prejudice will be caused to the minor if the orders sought are issued and urged the court to allow the application as prayed.
6. In response, the Warda filed grounds of opposition, opposing the application herein on the following grounds:-
a) THAT the Instant Application by the Appellant/Applicant offends Article 53 (2) of the Constitution and Section 8 of the Children Act 2022, which expounds on the duty of this Honourable Court to uphold the best interests of children as it seeks to indiscriminately ONLY stay orders that provide for the maintenance of the minors herein in the ruling dated 26th March 2025 in Tononoka Children’s Case No. E397 of 2024; Fareed Mahmood Omar vs. Warda Athman Ali, which is contrary to the best interests of the minors, namely, Mahmood born on 16th January 2017, Ali born on 27th January 2018 and Amir born on 25th January 2020 (minors herein);
b) THAT the Instant Application by the Appellant/Applicant in its very essence seeks to usurp the jurisdiction of the Trial Court (Children's Court at Tononoka Children’s Case No. E397 of 2024), to issue interim orders of maintenance as granted by Section 117 of the Children Act 2022, as read with Section 91 of the Children Act, 2022, which provisions grants the Trial Court the sole original jurisdiction to determine all disputes in regards to maintenance and custody of Children;
c) THAT the instant application by the Appellant/Applicant, which connivingly seeks stay of orders 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025 in Tononoka Children Case No. E397 of 2024 Fareed Mahmood Omar vs Warda Athman Ali pending hearing and determination of the appeal has not met the threshold for grant of orders of stay of orders pending appeal as per Order 42 Rule 6 (2) of the Civil Procedure Rules 2010, which makes it abundantly clear that:-
i) A party that seeks a stay of execution pending appeal should satisfy the court that it stands to suffer substantial loss if the said orders are not granted. In the instant matter, the appellant/applicant has not demonstrated the substantial loss they stand to suffer as required by Order 42 Rule 6 (2) (a) of the Civil Procedure Rules 2010, especially noting that the appellant/applicant is the biological father of the minors herein and is a man of means, formally employed at NEMA, earning a gross salary of Kes.151, 290/-; and
ii) Further, the Appellant/Applicant has not offered/provided before this Honourable Court any security of cost or agreed to abide to orders for security of costs that may be issued by this Honourable Court for the due performance of orders as may ultimately be binding on him, as strictly required by Order 42 Rule 6 (2) (b) of the Civil Procedure Rules, 2010.
7. The application was canvassed by way of written submissions. I will provide a summary of the parties' submissions below.
8. The applicant, through his advocates, Mwashushe & Company Advocates, filed written submissions dated 5th June 2025. Counsel submitted on three issues, namely: whether the impugned maintenance orders should be stayed pending appeal; whether the children’s court proceedings should be stayed pending the appeal; and who should bear the costs of the application.
9. On the first issue, counsel relied on Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 and submitted that the application and the appeal were filed without unreasonable delay.
10. Further, the appellant is aggrieved by the maintenance orders issued on 26th March 2025, which impose an excessive financial burden on him, and compliance with the same will cause him undue financial hardship. It was submitted that the risk of execution proceedings being brought against the appellant, including committal proceedings, was clear and present and posed a risk to his liberty. Counsel urged that, as this is a children’s matter, the loss incurred in compliance with the impugned orders is not revocable. If the appeal succeeds, the applicant will have suffered irreparable financial loss, rendering a successful appeal pyrrhic.
11. Counsel submitted that the minor whose interest is paramount will not be adversely affected, as they will be adequately provided for under the maintenance orders that were issued on 26th February 2025. Ms Mwashushe stated that it would be in the interest of the minors that the maintenance order be stayed and the parties be directed to comply with the orders of 26th February 2025.
12. Counsel submitted that, this being a children’s matter, the provision of security does not apply to the application herein and the appeal.
13. On the second issue, counsel relied on Order 42 rule 6(1) of the Civil Procedure Rules and submitted that the appeal and the application were filed timely as they were filed within eight days of the delivery of the impugned ruling.
14. On whether the appeal will be rendered nugatory if the proceedings are not stayed, counsel submitted that the memorandum of appeal dated 3rd April 2025 raises arguable grounds on the procedural and substantive legality of the two conflicting rulings dated 26th February 2026 and 26th March 2025. The appeal also questions the trial court’s unilateral interference with the maintenance orders of 26th February 2025 and the apportionment of the bulk of financial responsibility to the applicant, despite the respondent’s proven capacity to meet the children's needs. It also seeks to have the suit transferred to another magistrate for disposition due to bias by the trial court. That all these are arguable issues, and if an order staying the proceedings is not issued, the appeal will be rendered nugatory.
15. On costs, counsel submitted that the application was brought in the interest of the minors and thus each party should bear their own costs. Counsel urged the court to allow the application as prayed.
16. The respondent, on the other hand, through her advocates MPL Advocates LLP, filed her written submissions dated 23rd May 2025. Counsel submitted on four issues.
17. The first issue, as identified by the counsel for the respondent, is whether the applicant’s application herein contravenes the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. Counsel submitted that the applicant has not demonstrated the substantial loss he will suffer as he is a person of means, formally employed at NEMA, earning a gross salary of Kes.151,290/-. That the applicant has not provided security for the due performance of orders, as may ultimately be binding on him.
18. The second issue was whether the applicant’s application herein is an afterthought, frivolous, vexatious, a non-starter and an abuse of this court process. Counsel submitted that the application is an abuse of court process, as it offends the principle of the best interest of a child, seeks to usurp the jurisdiction of the trial court, was filed to evade parental responsibility, and that it is an afterthought, given that the applicant continues to enjoy the other orders.
19. Counsel submitted that the applicant does not have an arguable appeal with chances of success.
20. On the third issue whether the applicant’s application herein defeats the oxygen principle (overriding objective) as provided for under Section 1A and 1B of the Civil Procedure Act Cap 21, counsel submitted that it would be unfair if the court exercises its jurisdiction and grants a stay of proceedings as the same will only serve the purpose of delaying the suit before the trial court, denying the respondent her right to a fast and expeditious hearing.
21. On the fourth issue, which party should bear the costs of the application, counsel relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event and urged the court to award costs to the respondent.
22. In conclusion, counsel urged the court to find that the applicant’s application had no merit and dismiss the same with costs.
23. I have considered the application, the response thereto, as well as the submissions of the parties. The court must now determine if there should be a stay of the execution of the ruling, and secondly, whether the proceedings should also be stayed.
24. I will first set out the statutory underpinnings of the children's law in Kenya. This is found in the Constitution of Kenya, 2010 and the Children Act, 2022. Both of these provide that the best interest of the child is the primary consideration in all matters concerning a child. Article 53 (2) of the Constitution stated that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
Section 8(1) of the Children Act, 2022, for its part states that:-
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies -
(a) The best interests of the child shall be the primary consideration;
(b) The best interests of the child shall include, but shall not be limited to, the considerations set out in the First Schedule.”
25. The court in the case of LDT v PAO [2021] KEHC 2944 (KLR stated:-
“The principles for granting stay of execution in children matters was well settled in the case of Bhutt v. Bhutt , Mombasa HCCC NO. 8 of 2014 (O.S.), where the Court stated 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.”
26. Order 42, Rule 6 (1) and (2) of the Civil Procedure Rules provides that:-
1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
2. 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.
27. From the provision above, it is evident that in the issuance of stay of execution orders, the court has to consider three factors, namely:-
(i) Substantial loss;
(ii) The application has been made without unreasonable delay; and
(iii) Security.
In children matters, the court must also consider and determine whether the grant or refusal of a stay will be in the best interest of the children.
28. In discussing substantial loss, the court in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR) stated:-
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
29. Would the applicant suffer substantial loss? Or put differently, is the loss that Fareed claims that he will suffer, one that would render the appeal nugatory? I have considered the orders made by the Court below. Arguably, the said court made contradictory orders in February and March 2025. I say arguably, as this Court has not considered the said orders with finality. The responsibilities placed on him deserve deeper interrogation, too, as they may be inordinate. Having considered the parties' respective submissions, I am of the view that if a stay of execution is not issued, the applicant will suffer substantial loss.
30. On the second test, I note that the application was filed without undue delay. The said test is therefore met.
31. I hold the view that the provision of security is neither necessary nor appropriate in children's matters.
32. What of the best interest of the children? In my view, if the orders of 26th March 2025 are stayed as prayed, those of 26th February 2025 will remain in effect. I therefore find and hold that a stay of execution of the said orders will not be against the best interest of the children. I have considered the two subject rulings of 26th February 2025 and 26th March 2025, and the issues raised by the applicant are evident. It’s also my view that the applicant has an arguable appeal and that the application was filed without undue delay.
33. The upshot of the foregoing is that I find merit in the application for stay of execution of the impugned ruling and allow it as prayed.
34. I now turn to the prayer for stay of proceedings. A stay of proceedings is a drastic remedy that is granted sparingly in the clearest of cases. The court in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) stated:-
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added).”
35. The applicant is aggrieved by the decision of the court below. It is also clear to me that he is not happy with the way the trial magistrate has conducted the proceedings and wishes, if the appeal is successful, for the same to be heard by a different court.
36. Under the circumstances of this case, I find and hold that the application herein has merit. The same is allowed strictly on the condition that the appellant/applicant will continue to comply with the orders of 26th February 2025.
37. Due to the nature of the matter, I make no orders as to costs.
38. Orders accordingly.
Dated and signed in Mombasa, this 30th day of July 2025. Delivered virtually through Microsoft TEAMS.