1. The Hon. Abdiaziz Maalim Mohamed, SPK, delivered a judgment on 10th February 2025, by which he awarded the respondent custody of the minor on the ground that the appellant/applicant had no capacity to deal with a child of tender age. Being aggrieved by the said decision, the appellant/applicant filed an appeal, seeking to set aside the impugned judgment, to dismiss the respondent’s suit in the lower court, and to enter judgment for the appellant as prayed for in the counterclaim, with costs.
2. The appellant/applicant filed the notice of motion application dated 2nd July 2025, vide which he sought the following orders:-
a. Spent;
b. Spent;
c. This honorable court do grant a stay of execution of the judgment delivered on 10th February 2025 and the ruling and or orders dated 21st February 2025, given in KCDC No E235 of 2023; Nawal Jamal Riziki Jumaan v Issa Suleiman Issa, pending hearing and determination of the appellant/applicant’s appeal; and
d. Costs of this application be awarded to the appellant/applicant.
3. It is contended in the grounds in support of the application and in the supporting affidavit sworn by Issa Suleiman Issa on 2nd July 2025 that upon delivery of judgment, he sought a stay pending appeal. The Kadhi dismissed the application on 25th June 2025. Being aggrieved, the appellant/applicant filed the instant application seeking similar orders, contending that the judgment of the court below was not in the child’s best interest and was negatively affecting the minor, as the child was being denied parental care, love, and affection. He further contended that execution of the judgment would inflict substantial and irreparable harm on the applicant by stripping him of immediate access to his minor daughter until she reaches school-going age, thereby undermining his parental rights and interests.
4. He stated that if a stay is not granted, he would be irreparably prejudiced.
5. The application is opposed. The respondent deposed to a replying affidavit sworn on 4th July 2025 in which she stated that the appellant/applicant was not interested in the welfare of the child and accused him of being in arrears of Kes.50,000/- , in respect of his child maintenance obligation. She further accused him of being selfish.
6. The respondent deposed that the eddat period had lapsed. For that reason, divorce had taken effect. Hence, there was nothing to stay. She contended that a stay would be injurious to her and the child. She stated that the appellant/applicant had not demonstrated that he would suffer substantial loss unless a stay were granted. She therefore prayed that notice of motion application dated 2nd July 2025 be dismissed.
7. The appellant/applicant filed a supplementary affidavit sworn on 20th August 2025 in which he denied and traversed the contents of the supporting affidavit of the respondent.
8. The parties made oral submissions on 18th November 2025. The appellant/applicant’s counsel filed written submissions on 20th August 2025. I have considered the parties' submissions carefully.
9. Since what is sought is a stay of execution pending appeal, I will consider what Order 42 Rule 6 of the Civil Procedure Rules states. It provides that:-
“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.”
10. For an applicant to succeed, he must show that:-
a. He would suffer substantial loss unless a stay of execution is granted;
b. The application was filed without undue delay; and
c. Give security for the due performance of such decree as may ultimately be binding.
11. In Regnoil Kenya Limited v Karanja [2019]eKLR ) it was held that “substantial loss does not represent any particular mathematical formula but is a qualitative concept, that refer to any loss, great or small, that is of real worth or value, or a loss that is of real value, as distinguished from loss without value, or loss that is merely nominal.”
12. The appellant/applicant contends that being denied custody of the child and the taking effect of the divorce will cause him substantial loss. In respect of the divorce, I note that the same has already taken effect. The marriage has already been dissolved. That being the case, I do not think that the appellant/applicant will suffer substantial loss in respect of something which has already taken place.
13. What of the custody of the child? I note that the child is not yet of school-going age. In the case of J.O v S.A.O [2016] KECA 55 (KLR), the Court of Appeal stated as follows:-
“13. There is a plethora of decisions by this Court as well as the High Court that in determining matters of custody of children, and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new husband; where she is living in quarters that are in deplorable state; or where her conduct is disgraceful and/or immoral. See SOSPETER OJAAMONG V LYNNETTE AMONDI OTIENO, Civil Appeal No. 175 of 2006, KARANU V KARANU [1975] E.A. 18, GITHUNGURI V GITHUNGURI [1979] eKLR.”
14. The appellant/applicant has since remarried. If custody is disturbed pending the hearing of the appeal, the child will likely not be cared for by a stepmother. In my view, and pending a hearing on the merits, such a situation may not be in the best interests of the child.
15. I must consider the best interest of the child (Article 53 (2) of the Constitution and section 8 of the Children Act 2022). In the case of LDT v PAO [2021] eKLR, it was held that:-
“While considering stay of execution in respect to children matters, besides the above, the court has to consider the best interest of the child. The Applicant is expected to demonstrate that the minors will suffer if a stay is not granted. I, however, note that the Applicant averred that he will suffer great prejudice as he will be condemned to pay school fees twice if an order of stay is not granted.”
16. I note that the conditions enumerated in Rule 42 are conjunctive. Thus, although the application was filed without undue delay and the deposit of security is not suitable, given the nature of the subject matter, the application must fail.
17. In my view, the interest of justice will be served by an expedited hearing of the appeal.
18. In view of the foregoing, I dismiss the application dated 2nd July 2025 with no orders as to costs. I order that the appeal be heard on a priority basis.
19. Orders accordingly.
Dated and signed at Mombasa, this 15th day of December 2025. Delivered virtually through Microsoft TEAMS.
2. The appellant/applicant filed the notice of motion application dated 2nd July 2025, vide which he sought the following orders:-
a. Spent;
b. Spent;
c. This honorable court do grant a stay of execution of the judgment delivered on 10th February 2025 and the ruling and or orders dated 21st February 2025, given in KCDC No E235 of 2023; Nawal Jamal Riziki Jumaan v Issa Suleiman Issa, pending hearing and determination of the appellant/applicant’s appeal; and
d. Costs of this application be awarded to the appellant/applicant.
3. It is contended in the grounds in support of the application and in the supporting affidavit sworn by Issa Suleiman Issa on 2nd July 2025 that upon delivery of judgment, he sought a stay pending appeal. The Kadhi dismissed the application on 25th June 2025. Being aggrieved, the appellant/applicant filed the instant application seeking similar orders, contending that the judgment of the court below was not in the child’s best interest and was negatively affecting the minor, as the child was being denied parental care, love, and affection. He further contended that execution of the judgment would inflict substantial and irreparable harm on the applicant by stripping him of immediate access to his minor daughter until she reaches school-going age, thereby undermining his parental rights and interests.
4. He stated that if a stay is not granted, he would be irreparably prejudiced.
5. The application is opposed. The respondent deposed to a replying affidavit sworn on 4th July 2025 in which she stated that the appellant/applicant was not interested in the welfare of the child and accused him of being in arrears of Kes.50,000/- , in respect of his child maintenance obligation. She further accused him of being selfish.
6. The respondent deposed that the eddat period had lapsed. For that reason, divorce had taken effect. Hence, there was nothing to stay. She contended that a stay would be injurious to her and the child. She stated that the appellant/applicant had not demonstrated that he would suffer substantial loss unless a stay were granted. She therefore prayed that notice of motion application dated 2nd July 2025 be dismissed.
7. The appellant/applicant filed a supplementary affidavit sworn on 20th August 2025 in which he denied and traversed the contents of the supporting affidavit of the respondent.
8. The parties made oral submissions on 18th November 2025. The appellant/applicant’s counsel filed written submissions on 20th August 2025. I have considered the parties' submissions carefully.
9. Since what is sought is a stay of execution pending appeal, I will consider what Order 42 Rule 6 of the Civil Procedure Rules states. It provides that:-
“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.”
10. For an applicant to succeed, he must show that:-
a. He would suffer substantial loss unless a stay of execution is granted;
b. The application was filed without undue delay; and
c. Give security for the due performance of such decree as may ultimately be binding.
11. In Regnoil Kenya Limited v Karanja [2019]eKLR ) it was held that “substantial loss does not represent any particular mathematical formula but is a qualitative concept, that refer to any loss, great or small, that is of real worth or value, or a loss that is of real value, as distinguished from loss without value, or loss that is merely nominal.”
12. The appellant/applicant contends that being denied custody of the child and the taking effect of the divorce will cause him substantial loss. In respect of the divorce, I note that the same has already taken effect. The marriage has already been dissolved. That being the case, I do not think that the appellant/applicant will suffer substantial loss in respect of something which has already taken place.
13. What of the custody of the child? I note that the child is not yet of school-going age. In the case of J.O v S.A.O [2016] KECA 55 (KLR), the Court of Appeal stated as follows:-
“13. There is a plethora of decisions by this Court as well as the High Court that in determining matters of custody of children, and especially of tender age, except where exceptional circumstances exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise care and control of the children. Exceptional circumstances include: the mother being unsettled; where the mother has taken a new husband; where she is living in quarters that are in deplorable state; or where her conduct is disgraceful and/or immoral. See SOSPETER OJAAMONG V LYNNETTE AMONDI OTIENO, Civil Appeal No. 175 of 2006, KARANU V KARANU [1975] E.A. 18, GITHUNGURI V GITHUNGURI [1979] eKLR.”
14. The appellant/applicant has since remarried. If custody is disturbed pending the hearing of the appeal, the child will likely not be cared for by a stepmother. In my view, and pending a hearing on the merits, such a situation may not be in the best interests of the child.
15. I must consider the best interest of the child (Article 53 (2) of the Constitution and section 8 of the Children Act 2022). In the case of LDT v PAO [2021] eKLR, it was held that:-
“While considering stay of execution in respect to children matters, besides the above, the court has to consider the best interest of the child. The Applicant is expected to demonstrate that the minors will suffer if a stay is not granted. I, however, note that the Applicant averred that he will suffer great prejudice as he will be condemned to pay school fees twice if an order of stay is not granted.”
16. I note that the conditions enumerated in Rule 42 are conjunctive. Thus, although the application was filed without undue delay and the deposit of security is not suitable, given the nature of the subject matter, the application must fail.
17. In my view, the interest of justice will be served by an expedited hearing of the appeal.
18. In view of the foregoing, I dismiss the application dated 2nd July 2025 with no orders as to costs. I order that the appeal be heard on a priority basis.
19. Orders accordingly.
Dated and signed at Mombasa, this 15th day of December 2025. Delivered virtually through Microsoft TEAMS.