1. Stay of execution is a discretionary relief that cuts into the heart of the proceedings, designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition, that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree.
2. Having said so, it is the duty of the court to always exercise its discretion with an act of balancing proportionality and equity, as the antidote against falling into pitfalls, when considering such applications. So that in the fullness of time, and when the law traces justice, it must prostrate fall before it’s feet and justice shall triumph.
3. I am not alone. The Court of Appeal has in many of its decisions set the tempo in children matters and I find this decision, apposite to the matter at hand. HKN Vs LNW [2024] KECA 437 (KLR) the Court of Appeal said “ We need not rehash the paramount consideration in any decision on a matter concerning children-the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly. It is not lost to us that whenever matters relating to children end up before courts, the parents are usually at loggerheads and sometimes using the children to settle their own personal scores. It is therefore incumbent upon the court to become the ultimate protector of the minors in the clouded environment where each parent purports to assert the best interests of the child. In doing so, the court is granted judicial discretion to make certain findings upon hearing the parties. Such are the findings of fact, peculiar to the circumstances of each case that we, as an appellate court and of second instance in this case should exercise restraint in interfering with.”
4. Consequently, courts must rise above the personal vendetta between parents and focus on the best interest of the child. It must also be borne in mind, that a child welfare encompasses among other parameters; systems, policies, and practices dedicated to ensuring the physical, mental, and social well-being of a child.
The Appellant’s Case:
5. In the Notice of Motion dated 25 th June 2026, the applicant is seeking prayers;
a. That pending the hearing and determination of the application, this court be pleased to issue interim preservatory Orders safeguarding the welfare and the best interest of the minor children.
b. Pending the hearing and determination of the appeal, the arrangements and access provisions contemplated under the decree adopted by the Children Court on 13 th March 2026, be maintained.
c. Pending hearing and determination of the appeal, the Respondent and the Applicant shall not obstruct, frustrate, impede or interfere with children’s relationship with either parent.
d. Pending hearing and determination of the appeal both parties shall continue to exercise parental responsibility and shall and involve each other on major decisions affecting the welfare, health, education and upbringing and development of the children.
e. Pending hearing and determination of the appeal, parties shall facilitate reasonable communication between the children and each parent.
f. Pending hearing and determination of the appeal, each parent shall facilitate and encourage the children’s continued relationship with the other parent and shall refrain from conduct likely to alienate, undermine or diminish the relationship.
6. 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 the learned trial magistrate adopted a mediation settlement which recognises the parents’ active participation in the upbringing, welfare and development of the Children.
b. There are difficulties with respect to implementation of the decree relating to access and participation in the welfare of the children.
c. That it is in the interest of the children that their relationship with both parents be protected and maintained pending the hearing of the appeal.
d. That the court is enjoined under article 53(2) of the Constitution and the Children Act, 2022 to treat the best interest of the child as the paramount consideration.
The Respondent’s Case:
7. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The application before court is not meant to serve the best interest of the children but to drag the parties into an endless and unnecessary litigation.
b. The decree that was adopted by court on 13 th March 2026 guides parties granted custody to the Respondent while the Applicant was granted access to Children.
c. That the children attend school from Monday to Friday and on Saturday, they attend school for co-curriculum activities till noon. Besides, the decree allowed the applicant to purchase a smart phone to virtually access the Children.
d. The Respondent is ready to comply with the decree provisions which allow for alternate weekend as set out in clause1(d) of the decree.
e. In the spirit of the decree issued on 13 th March, 2026, the applicant be compelled to contribute a monthly sum of Kshs15,000/= to cover the children’s general expenses as set out under paragraph 1(b) of then Decree.
f. The applicant has been an absent parent for over 15 months but the court granted him access and this ought to be done under supervised access until the children get used to his presence.
Analysis and Determination:
8. Order 42 rule 6(1) and (2) of the Civil Procedure Rules provides as follows: “(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except 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 sub rule (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 .”
9. These principles were enunciated in Butt Vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
10. The court has the discretion to grant of refuse to grant an order of stay but the discretion must be applied judiciously. In the case of Kenya Power & Lightining Company Ltd Vs Esther Wanjiru Wokabi [2014] eKLR, where the court held that; Order 42 Rule 6(2) lays down the conditions which an applicant must satisfy in order to deserve the orders of stay of execution pending appeal. However, the court stated that it noted that the conditions set out in Order 46 Rule 6 (2) only serve as guidelines which the court can use as beacons in exercising its unfettered discretion in deciding whether or not to grant stay of execution pending appeal depending on the circumstances of each case.
10. I have with singleness of my mind, perused the memorandum of appeal and juxtaposed it with stay application and note that this matter was settled by way of mediation and adopted as Judgement of the court by Hon A.G. Opakasi Senior Principal Magistrate on 13 th March, 2026. However, on 20 th March, 2026 the applicant filed two applications. While one was for contempt against the Principal of Nova Pioneer Primary School in respect to access, the other was in respect to implementation of the decree of the court. A ruling was delivered by the Trial Magistrate and having been dissatisfied, the appellant herein has proffered this appeal and an application for stay. Upon perusal of the stay application and memorandum of appeal, I find identical lamentations in respect to implementation of the decree. So that if I commence analysis of the stay application, I will not fail to touch those lamentations in the Memorandum of Appeal and which are yet, to be disposed.
12. For the purposes of this appeal, I shall give the following Orders;
a. The stay application as well as the Memorandum of Appeal to be disposed of simultaneously.
b. The applicant to prepare Record of Appeal and serve it within 14 days from today. The Respondent to file a response 14 days thereafter and serve.
c. The appellant to continue to pay maintenance of children herein as per the Decree of the court till the appeal is disposed of.
d. Mention before Deputy Registrar to fix a hearing date for the Appeal on 8 th September, 2026.
Delivered virtually this 28 th July, 2026.
R.K. Ondieki,
Judge.
In the presence of:
Christine- C/A
Mr for the Respondent
Mr for the Appellant.
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2. Having said so, it is the duty of the court to always exercise its discretion with an act of balancing proportionality and equity, as the antidote against falling into pitfalls, when considering such applications. So that in the fullness of time, and when the law traces justice, it must prostrate fall before it’s feet and justice shall triumph.
3. I am not alone. The Court of Appeal has in many of its decisions set the tempo in children matters and I find this decision, apposite to the matter at hand. HKN Vs LNW [2024] KECA 437 (KLR) the Court of Appeal said “ We need not rehash the paramount consideration in any decision on a matter concerning children-the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly. It is not lost to us that whenever matters relating to children end up before courts, the parents are usually at loggerheads and sometimes using the children to settle their own personal scores. It is therefore incumbent upon the court to become the ultimate protector of the minors in the clouded environment where each parent purports to assert the best interests of the child. In doing so, the court is granted judicial discretion to make certain findings upon hearing the parties. Such are the findings of fact, peculiar to the circumstances of each case that we, as an appellate court and of second instance in this case should exercise restraint in interfering with.”
4. Consequently, courts must rise above the personal vendetta between parents and focus on the best interest of the child. It must also be borne in mind, that a child welfare encompasses among other parameters; systems, policies, and practices dedicated to ensuring the physical, mental, and social well-being of a child.
The Appellant’s Case:
5. In the Notice of Motion dated 25 th June 2026, the applicant is seeking prayers;
a. That pending the hearing and determination of the application, this court be pleased to issue interim preservatory Orders safeguarding the welfare and the best interest of the minor children.
b. Pending the hearing and determination of the appeal, the arrangements and access provisions contemplated under the decree adopted by the Children Court on 13 th March 2026, be maintained.
c. Pending hearing and determination of the appeal, the Respondent and the Applicant shall not obstruct, frustrate, impede or interfere with children’s relationship with either parent.
d. Pending hearing and determination of the appeal both parties shall continue to exercise parental responsibility and shall and involve each other on major decisions affecting the welfare, health, education and upbringing and development of the children.
e. Pending hearing and determination of the appeal, parties shall facilitate reasonable communication between the children and each parent.
f. Pending hearing and determination of the appeal, each parent shall facilitate and encourage the children’s continued relationship with the other parent and shall refrain from conduct likely to alienate, undermine or diminish the relationship.
6. 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 the learned trial magistrate adopted a mediation settlement which recognises the parents’ active participation in the upbringing, welfare and development of the Children.
b. There are difficulties with respect to implementation of the decree relating to access and participation in the welfare of the children.
c. That it is in the interest of the children that their relationship with both parents be protected and maintained pending the hearing of the appeal.
d. That the court is enjoined under article 53(2) of the Constitution and the Children Act, 2022 to treat the best interest of the child as the paramount consideration.
The Respondent’s Case:
7. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The application before court is not meant to serve the best interest of the children but to drag the parties into an endless and unnecessary litigation.
b. The decree that was adopted by court on 13 th March 2026 guides parties granted custody to the Respondent while the Applicant was granted access to Children.
c. That the children attend school from Monday to Friday and on Saturday, they attend school for co-curriculum activities till noon. Besides, the decree allowed the applicant to purchase a smart phone to virtually access the Children.
d. The Respondent is ready to comply with the decree provisions which allow for alternate weekend as set out in clause1(d) of the decree.
e. In the spirit of the decree issued on 13 th March, 2026, the applicant be compelled to contribute a monthly sum of Kshs15,000/= to cover the children’s general expenses as set out under paragraph 1(b) of then Decree.
f. The applicant has been an absent parent for over 15 months but the court granted him access and this ought to be done under supervised access until the children get used to his presence.
Analysis and Determination:
8. Order 42 rule 6(1) and (2) of the Civil Procedure Rules provides as follows: “(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except 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 sub rule (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 .”
9. These principles were enunciated in Butt Vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
10. The court has the discretion to grant of refuse to grant an order of stay but the discretion must be applied judiciously. In the case of Kenya Power & Lightining Company Ltd Vs Esther Wanjiru Wokabi [2014] eKLR, where the court held that; Order 42 Rule 6(2) lays down the conditions which an applicant must satisfy in order to deserve the orders of stay of execution pending appeal. However, the court stated that it noted that the conditions set out in Order 46 Rule 6 (2) only serve as guidelines which the court can use as beacons in exercising its unfettered discretion in deciding whether or not to grant stay of execution pending appeal depending on the circumstances of each case.
10. I have with singleness of my mind, perused the memorandum of appeal and juxtaposed it with stay application and note that this matter was settled by way of mediation and adopted as Judgement of the court by Hon A.G. Opakasi Senior Principal Magistrate on 13 th March, 2026. However, on 20 th March, 2026 the applicant filed two applications. While one was for contempt against the Principal of Nova Pioneer Primary School in respect to access, the other was in respect to implementation of the decree of the court. A ruling was delivered by the Trial Magistrate and having been dissatisfied, the appellant herein has proffered this appeal and an application for stay. Upon perusal of the stay application and memorandum of appeal, I find identical lamentations in respect to implementation of the decree. So that if I commence analysis of the stay application, I will not fail to touch those lamentations in the Memorandum of Appeal and which are yet, to be disposed.
12. For the purposes of this appeal, I shall give the following Orders;
a. The stay application as well as the Memorandum of Appeal to be disposed of simultaneously.
b. The applicant to prepare Record of Appeal and serve it within 14 days from today. The Respondent to file a response 14 days thereafter and serve.
c. The appellant to continue to pay maintenance of children herein as per the Decree of the court till the appeal is disposed of.
d. Mention before Deputy Registrar to fix a hearing date for the Appeal on 8 th September, 2026.
Delivered virtually this 28 th July, 2026.
R.K. Ondieki,
Judge.
In the presence of:
Christine- C/A
Mr for the Respondent
Mr for the Appellant.
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