1. Perhaps, it fits this case from the outset, to drop anchor so that when I come back to the surface, I do not lose my footing. It is now cast in stone and founded in many jurisprudential passages so often repeated and yet bear repetition. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332 , the passage reads: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
2. In the Notice of Motion dated 20th May, 2026, the applicant is seeking the following prayers;
a. Spent
b. That pending inter parte hearing of this application, a temporary stay of proceedings before Honourable Catherine Ng’ang’a in Nairobi Children’s Court Case No. E764 of 2026.
c. Spent
d. That pending inter parte hearing of this application, a temporary stay of the orders issued on 13th May, 2026 and 14th May 2026 requiring physical presentation of the minors.
e. That pending inter parte hearing and determination of the appeal, stay of all impugned orders and warrants of arrest pursuant to Order 42 Rule 6 of the Civil Procedure Rules.
f. That pending inter parte hearing of this application, and the hearing and determination of this appeal, the honourable court through its supervisory powers under Article 165(6) & (7) be pleased to order that the file in Nairobi Children’s Court Case No. E764 OF 2026 be availed and transferred to another judicial officer for impartial handling.
g. That costs of this application be provided for.
3. The grounds of the application are set out on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. That on the 29th April, 2026, the applicant filed an application in the Children’s Court seeking the recusal of the Honourable Presiding Magistrate, Catherine Ng’ang’a from further conduct of the matter on the grounds of a reasonable apprehension of bias and procedural irregularities.
b. That despite of service of the application, the honourable magistrate has declined to give directions on the recusal application and instead has proceeded to issue substantive orders.
c. That the honourable on the 13th May 2026 and 14th May, 2026 proceeded to issue orders that directly disrupted the minors’ ongoing school term which the applicant has fully paid for, thereby denying them their constitutional right to education and undermining their best interests.
d. That the minors have enjoyed a stable and nurturing lifestyle under the care of the applicant marked by uninterrupted schooling, secure housing, medical care and emotional support and orders directing the police into forcefully remove them from their home while subjecting the applicant to arrest will traumatize children besides destabilizing their environment mid-term.
e. That on 14th May, 2026, the Honourable Magistrate issued a warrant of arrest against the applicant without proper service of the application seeking such order.
f. That refusal to determine the recusal application violates the applicant’s right to fair hearing under Article 50(1) and undermines the minor’s best interests under Article 53(2).
g. That the right to an impartial court is a fundamental pillar of a fair trial and judicial officer who is reasonably suspected of bias and procedural irregularity cannot continue to preside over a matter without first clearing that suspicion.
h. That unless stayed, the impugned orders will cause irreparable harm on the minors’ education and welfare.
i. An application on recusal as a principle should be determined on a priority basis goes to the jurisdiction and legitimacy of the court.
4. In addition to these grounds, the applicant has annexed a copy of the recusal application, copies of receipts of school fees, newsletter from the school and photos of the minor.
5. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The application and the Appeal are not brought in the interests of the minors.
b. The dispute relates to the welfare, custody care control and protection of the minors as provided under Article 53(2) of the constitution of Kenya and not personal grievances of the applicant.
c. That the children court directed that the Appellant facilitate the Respondent’s access to the minors every Saturday and Sunday between 10:00am and 4:00pm but she is denied access.
d. Consequent to inability to access the minors, the court directed that they be produced in court but the Appellant disobeyed the order of the court hence issuance of the warrants of arrest.
e. The Appellant has not disclosed the whereabouts of the minors and or whether their welfare is adequately safeguarded.
f. The minors are girls aged (4) and (3) years old respectively and are tender years who need love, care, affection and companionship of their mother.
g. That the court has not been afforded an opportunity to independently ascertain the physical, emotional educational and psychological condition of the minors.
h. That the application for recusal is intended to frustrate, delay and derail the proceedings before the Children’s court and to avoid accountability for the Appellant’s continued disobedience.
i. That by awarding the orders in this application would have the effect of rewarding disobedience of court orders and encouraging litigants to evade compliance through unmeritorious appeals and recusal applications.
Analysis and Determination:
6. As I understand it, the application for recusal of the Learned Magistrate is dated on 29th April, 2026 and the impugned orders were issued on 13th May, 2026 and 14th May, 2026, respectively. In the affidavit in support of the recusal application at paragraph 5 depones to the fact that the orders under attack, were issued ex- parte without hearing the appellant which creates an impression of biasness on the part of the appellant.
7. However, I am critically aware of the best interest of the children is a principle which is at the Centre of any proceedings affecting the children as provided for under Article 53(2) of the Constitution. It enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration to the extent that this is consistent with adoption a course of action calculated to; .Safeguards and promote the rights and welfare of the child; Conserve and promote the welfare of the child, Secure for the child such guidance and correction as it is necessary for the welfare of the child and in the public interest.
8. In Makarsan Ramji & Sons Limited Vs Athumani & Another (Civil Application No. E034 of 2023) [2024] KECA 563 eKLR) 24th May, 2024 Ruling) the court held that: “ ...We agree with the requirement that whereas the consideration for grant of stay of execution pending appeal are the same as those for stay of proceedings pending appeal, when it comes to the nugatory aspect, then in the latter case, a higher threshold is required to be met than in the former case. This must be so because an order staying proceedings has the effect of derailing pending proceedings before a determination is made therein. It interferes with the hearing schedules of the trial court and may lead to injustice being occasioned to the respondent whose constitutional right under Article 159(2)(d) may thereby be curtailed.”
9 . In Kenya Wildlife Service Vs James Mutembei [2019] eKLR where Gikonyo, J, held that : “Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is grave judicial action which interfere with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay, and overall, right to fair trial. Therefore, the test for staying proceedings is higher and stringent.”
10. I take cognizance of the fact that girls, ought to ordinarily stay with the mother subject to exceptional circumstances where a court will grant custody of the children to the father. I believe that the trial magistrate handling the matter had the benefit to consider all factors and made the orders on custody.
11. There are warrants of arrest against the Appellant for disobedience of orders of court. I shall mention the following decisions touching on contempt of court. The Court of Appeal in A.B. & Another Vs R.B., Civil Application No. 4 of 2016 [2016] eKLR cited with approval the Constitutional Court of South Africa’s decision in Burchell Vs. Burchell, Case No.364 of 2005 where it was held: Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”
12. Ojwang, J (as he then was) in B. Vs. Attorney General [2004] 1 KLR 431 said that: “The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”
13 . In the case of Hadkinson Vs Hadkinson (1952) 2 ALL ER 56 the court held as follows ; “It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt.”
14. What makes me a little uneasy, is the complaint by the appellant that he did not participate in the process leading to the issuance of warrants of arrest for disobedience of court orders. It is on record of the primary file, that the Appellant appeared virtually from Mombasa and said that, the children were in school. The Orders issued on 13th May, 2026 required the Appellant to avail the children in court the following day. I strongly believe that this requirement was a little drastic considering that the Appellant will have to travel from Mombasa, take the children from school and avail them to court, the following day.
15. Once again, I take cognizance of the Recusal Application before the court which had been filed earlier before the issuance of the issuance of impugned Orders. It was submitted that parties have complied and a date ought to be taken in that respect. This ought to have been addressed first.
16. Putting all these together, I shall make the following orders;
a. Execution of the warrants of arrest, is stayed.
b. The Appellant to avail the children before the Trial Magistrate on 26th June, 2026 at 2pm for further orders.
c. The Recusal Application be set down for hearing, without delay and in any event, within 14 days from the reading of this ruling.
d. In default to avail the children before the trial court, warrants of arrest to be executed, forthwith.
Delivered virtually this 18th June, 2026.
2. In the Notice of Motion dated 20th May, 2026, the applicant is seeking the following prayers;
a. Spent
b. That pending inter parte hearing of this application, a temporary stay of proceedings before Honourable Catherine Ng’ang’a in Nairobi Children’s Court Case No. E764 of 2026.
c. Spent
d. That pending inter parte hearing of this application, a temporary stay of the orders issued on 13th May, 2026 and 14th May 2026 requiring physical presentation of the minors.
e. That pending inter parte hearing and determination of the appeal, stay of all impugned orders and warrants of arrest pursuant to Order 42 Rule 6 of the Civil Procedure Rules.
f. That pending inter parte hearing of this application, and the hearing and determination of this appeal, the honourable court through its supervisory powers under Article 165(6) & (7) be pleased to order that the file in Nairobi Children’s Court Case No. E764 OF 2026 be availed and transferred to another judicial officer for impartial handling.
g. That costs of this application be provided for.
3. The grounds of the application are set out on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. That on the 29th April, 2026, the applicant filed an application in the Children’s Court seeking the recusal of the Honourable Presiding Magistrate, Catherine Ng’ang’a from further conduct of the matter on the grounds of a reasonable apprehension of bias and procedural irregularities.
b. That despite of service of the application, the honourable magistrate has declined to give directions on the recusal application and instead has proceeded to issue substantive orders.
c. That the honourable on the 13th May 2026 and 14th May, 2026 proceeded to issue orders that directly disrupted the minors’ ongoing school term which the applicant has fully paid for, thereby denying them their constitutional right to education and undermining their best interests.
d. That the minors have enjoyed a stable and nurturing lifestyle under the care of the applicant marked by uninterrupted schooling, secure housing, medical care and emotional support and orders directing the police into forcefully remove them from their home while subjecting the applicant to arrest will traumatize children besides destabilizing their environment mid-term.
e. That on 14th May, 2026, the Honourable Magistrate issued a warrant of arrest against the applicant without proper service of the application seeking such order.
f. That refusal to determine the recusal application violates the applicant’s right to fair hearing under Article 50(1) and undermines the minor’s best interests under Article 53(2).
g. That the right to an impartial court is a fundamental pillar of a fair trial and judicial officer who is reasonably suspected of bias and procedural irregularity cannot continue to preside over a matter without first clearing that suspicion.
h. That unless stayed, the impugned orders will cause irreparable harm on the minors’ education and welfare.
i. An application on recusal as a principle should be determined on a priority basis goes to the jurisdiction and legitimacy of the court.
4. In addition to these grounds, the applicant has annexed a copy of the recusal application, copies of receipts of school fees, newsletter from the school and photos of the minor.
5. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The application and the Appeal are not brought in the interests of the minors.
b. The dispute relates to the welfare, custody care control and protection of the minors as provided under Article 53(2) of the constitution of Kenya and not personal grievances of the applicant.
c. That the children court directed that the Appellant facilitate the Respondent’s access to the minors every Saturday and Sunday between 10:00am and 4:00pm but she is denied access.
d. Consequent to inability to access the minors, the court directed that they be produced in court but the Appellant disobeyed the order of the court hence issuance of the warrants of arrest.
e. The Appellant has not disclosed the whereabouts of the minors and or whether their welfare is adequately safeguarded.
f. The minors are girls aged (4) and (3) years old respectively and are tender years who need love, care, affection and companionship of their mother.
g. That the court has not been afforded an opportunity to independently ascertain the physical, emotional educational and psychological condition of the minors.
h. That the application for recusal is intended to frustrate, delay and derail the proceedings before the Children’s court and to avoid accountability for the Appellant’s continued disobedience.
i. That by awarding the orders in this application would have the effect of rewarding disobedience of court orders and encouraging litigants to evade compliance through unmeritorious appeals and recusal applications.
Analysis and Determination:
6. As I understand it, the application for recusal of the Learned Magistrate is dated on 29th April, 2026 and the impugned orders were issued on 13th May, 2026 and 14th May, 2026, respectively. In the affidavit in support of the recusal application at paragraph 5 depones to the fact that the orders under attack, were issued ex- parte without hearing the appellant which creates an impression of biasness on the part of the appellant.
7. However, I am critically aware of the best interest of the children is a principle which is at the Centre of any proceedings affecting the children as provided for under Article 53(2) of the Constitution. It enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration to the extent that this is consistent with adoption a course of action calculated to; .Safeguards and promote the rights and welfare of the child; Conserve and promote the welfare of the child, Secure for the child such guidance and correction as it is necessary for the welfare of the child and in the public interest.
8. In Makarsan Ramji & Sons Limited Vs Athumani & Another (Civil Application No. E034 of 2023) [2024] KECA 563 eKLR) 24th May, 2024 Ruling) the court held that: “ ...We agree with the requirement that whereas the consideration for grant of stay of execution pending appeal are the same as those for stay of proceedings pending appeal, when it comes to the nugatory aspect, then in the latter case, a higher threshold is required to be met than in the former case. This must be so because an order staying proceedings has the effect of derailing pending proceedings before a determination is made therein. It interferes with the hearing schedules of the trial court and may lead to injustice being occasioned to the respondent whose constitutional right under Article 159(2)(d) may thereby be curtailed.”
9 . In Kenya Wildlife Service Vs James Mutembei [2019] eKLR where Gikonyo, J, held that : “Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is grave judicial action which interfere with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay, and overall, right to fair trial. Therefore, the test for staying proceedings is higher and stringent.”
10. I take cognizance of the fact that girls, ought to ordinarily stay with the mother subject to exceptional circumstances where a court will grant custody of the children to the father. I believe that the trial magistrate handling the matter had the benefit to consider all factors and made the orders on custody.
11. There are warrants of arrest against the Appellant for disobedience of orders of court. I shall mention the following decisions touching on contempt of court. The Court of Appeal in A.B. & Another Vs R.B., Civil Application No. 4 of 2016 [2016] eKLR cited with approval the Constitutional Court of South Africa’s decision in Burchell Vs. Burchell, Case No.364 of 2005 where it was held: Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”
12. Ojwang, J (as he then was) in B. Vs. Attorney General [2004] 1 KLR 431 said that: “The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”
13 . In the case of Hadkinson Vs Hadkinson (1952) 2 ALL ER 56 the court held as follows ; “It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt.”
14. What makes me a little uneasy, is the complaint by the appellant that he did not participate in the process leading to the issuance of warrants of arrest for disobedience of court orders. It is on record of the primary file, that the Appellant appeared virtually from Mombasa and said that, the children were in school. The Orders issued on 13th May, 2026 required the Appellant to avail the children in court the following day. I strongly believe that this requirement was a little drastic considering that the Appellant will have to travel from Mombasa, take the children from school and avail them to court, the following day.
15. Once again, I take cognizance of the Recusal Application before the court which had been filed earlier before the issuance of the issuance of impugned Orders. It was submitted that parties have complied and a date ought to be taken in that respect. This ought to have been addressed first.
16. Putting all these together, I shall make the following orders;
a. Execution of the warrants of arrest, is stayed.
b. The Appellant to avail the children before the Trial Magistrate on 26th June, 2026 at 2pm for further orders.
c. The Recusal Application be set down for hearing, without delay and in any event, within 14 days from the reading of this ruling.
d. In default to avail the children before the trial court, warrants of arrest to be executed, forthwith.
Delivered virtually this 18th June, 2026.