FAMILY MISCELLANEOUS APPLICATION NO. E008 OF 2026
(CONSOLIDATED WITH FAMILY APPEAL NO. E020 OF 2026)
1. Before this Court is a Notice of Motion application dated 9 th February, 2026 in which the Applicant seeks the following orders;
i. Spent;
ii. THAT this honourable court do order a stay of execution of the Ruling in Nairobi MCCC/1394/2018 delivered on 23/12/2025 by Hon. Jackie Kibosia (SPM) pending inter-partes hearing and determination of this application;
iii. THAT this honourable court to order a stay of execution of the Ruling in Nairobi MCCC/1394/2018 delivered on 23/12/2025 by Hon. Jackie Kibosia (SPM) pending the hearing and determination of the applicant’s appeal;
iv. THAT costs of this application be in the cause.
2. The background of the matter is that the parties are involved in Children Case No. MCCC/1394/2018 before the Children Court Nairobi. They entered into a parental responsibility agreement that was adopted on 5 th July, 2019, but have subsequently been engaged in several proceedings before the Children Court touching on the children.
3. The present proceedings relate to a ruling delivered on 23 rd December, 2025 in which the Learned Trial Magistrate allowed a Notice to Show Cause in execution and ordered the Applicant to pay a sum of Kshs.1,137,260/= in ten monthly instalments until payment in full. The ruling also extended parental responsibility over two of the children who are above the age of majority.
4. The Applicant was aggrieved by the trial Court’s orders and filed an appeal vide Memorandum of Appeal dated 9 th January, 2026 before this Court.
5. The application is supported by the supporting affidavit of even date and a further affidavit dated 25 th February, 2026.
6. The Applicant challenges the extension of parental responsibility, averring that the children to whom the extension pertains were adults and had signed affidavits opposing the extension of parental responsibility. He asserts that the trial Court erred in extending parental responsibility discriminately against him without apportioning responsibility to the Respondent.
7. The Applicant further asserts that the trial Court overlooked his pleadings, which stated he had already paid Kshs.2,000,030/= and was not in arrears, contrary to the statement made by the Respondent.
8. He submitted that if the stay order is not granted, he will suffer loss, as the Respondent has initiated execution proceedings, and further, that the appeal will be rendered nugatory.
9. The Respondent opposes the application and has filed a replying affidavit dated 18 th February, 2026. She avers that the accrued amounts arose from the Applicant’s blatant disobedience of the orders issued on 5 th July, 2019.
10. The Respondent has asked the Court to dismiss the application, asserting that the Applicant has not fulfilled the requirements for a stay of execution pending appeal.
Analysis and determination
11. I have carefully considered the application before me, the affidavits in support and opposition, alongside the oral submissions made. The Applicant seeks to stay the orders of the trial court issued on 23 rd December, 2025.
12. The principles to be considered when granting an order for stay of execution have been well articulated in the locus classicus case of Butt v Rent Restriction Tribunal (1982) KLR 417, where the Court of Appeal held that;
1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. 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 that appeal court reverse the judge’s discretion.
3. 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.
4. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. 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 for costs as ordered will cause the order for stay of execution to lapse.”
13. The impugned ruling was delivered on 23 rd December, 2025 and the application for stay was filed on 9 th January, 2026. This Court therefore finds that the application was filed timeously.
14. The Applicant has placed before this Court evidence that the Respondent has already commenced garnishee proceedings against the Applicant’s bank accounts in execution of the impugned orders. The garnishee application is dated 13 th February, 2026. The implication here is that, without the Court’s intervention through stay orders, the execution process will proceed before the hearing and determination of the appeal which challenges the validity of the claim for arrears and the extension of parental responsibility.
15. At the proceedings before the Deputy Registrar, parties confirmed that the record of appeal has been duly filed and served. Upon perusal of the memorandum of appeal dated 9 th January, 2026, this Court is satisfied that the grounds of appeal raise substantive and triable issues of law and fact that are not frivolous. In the absence of full ventilation, there is a relative risk that the appeal may be rendered nugatory.
16. This Court has also considered the welfare of the children, which is paramount under Article 53 (2) of the Constitution. There is uncontroverted evidence that the Applicant has fulfilled and continues to fulfil the obligation to pay the children’s fees. Annexures JIM6 and JIM7 confirm payment of fees. The Respondent acknowledges this support; however, she asserts that the arrears pertain to maintenance obligations, whereas the Applicant contends that there are no arrears. Further, it is acknowledged that the children continue to receive direct financial support from the Applicant. Critically, there is no evidence of imminent risk to the children’s education, health and sustenance should the stay orders be granted. The balance of convenience tilts in preserving the status quo pending appeal.
17. Having weighed the principles in Butt v Rent Restriction Tribunal (1982) KLR 417, this Court finds that a conditional stay is the most just and equitable order in this matter.
18. Accordingly, the execution of the orders issued on 23 rd December, 2025, is hereby stayed pending the hearing and determination of the appeal on condition that the Applicant shall continue to pay the children’s school fees, provide reasonable sustenance and maintain an active medical insurance for the children. The Applicant shall file proof of compliance every 60 days through an affidavit. In the event of non-compliance, execution shall proceed.
19. Costs of the application shall abide by the outcome of the appeal.
20. The parties agreed to consolidate the miscellaneous file with the appeal file. Since there are no further proceedings in the miscellaneous file, it is hereby closed. The proceedings shall continue in the main appeal file.
21. Orders accordingly.
DATED and DELIVERED at NAIROBI on this 23 RD day of JUNE, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Ms. Beryl Anindo
Mr. Maina Advocate for the Applicant
Ms. Mumbi Advocate holding brief for Ms Morara Advocate for the Respondent
CIVIL APPEAL E020 OF 2026 RULING2
(CONSOLIDATED WITH FAMILY APPEAL NO. E020 OF 2026)
1. Before this Court is a Notice of Motion application dated 9 th February, 2026 in which the Applicant seeks the following orders;
i. Spent;
ii. THAT this honourable court do order a stay of execution of the Ruling in Nairobi MCCC/1394/2018 delivered on 23/12/2025 by Hon. Jackie Kibosia (SPM) pending inter-partes hearing and determination of this application;
iii. THAT this honourable court to order a stay of execution of the Ruling in Nairobi MCCC/1394/2018 delivered on 23/12/2025 by Hon. Jackie Kibosia (SPM) pending the hearing and determination of the applicant’s appeal;
iv. THAT costs of this application be in the cause.
2. The background of the matter is that the parties are involved in Children Case No. MCCC/1394/2018 before the Children Court Nairobi. They entered into a parental responsibility agreement that was adopted on 5 th July, 2019, but have subsequently been engaged in several proceedings before the Children Court touching on the children.
3. The present proceedings relate to a ruling delivered on 23 rd December, 2025 in which the Learned Trial Magistrate allowed a Notice to Show Cause in execution and ordered the Applicant to pay a sum of Kshs.1,137,260/= in ten monthly instalments until payment in full. The ruling also extended parental responsibility over two of the children who are above the age of majority.
4. The Applicant was aggrieved by the trial Court’s orders and filed an appeal vide Memorandum of Appeal dated 9 th January, 2026 before this Court.
5. The application is supported by the supporting affidavit of even date and a further affidavit dated 25 th February, 2026.
6. The Applicant challenges the extension of parental responsibility, averring that the children to whom the extension pertains were adults and had signed affidavits opposing the extension of parental responsibility. He asserts that the trial Court erred in extending parental responsibility discriminately against him without apportioning responsibility to the Respondent.
7. The Applicant further asserts that the trial Court overlooked his pleadings, which stated he had already paid Kshs.2,000,030/= and was not in arrears, contrary to the statement made by the Respondent.
8. He submitted that if the stay order is not granted, he will suffer loss, as the Respondent has initiated execution proceedings, and further, that the appeal will be rendered nugatory.
9. The Respondent opposes the application and has filed a replying affidavit dated 18 th February, 2026. She avers that the accrued amounts arose from the Applicant’s blatant disobedience of the orders issued on 5 th July, 2019.
10. The Respondent has asked the Court to dismiss the application, asserting that the Applicant has not fulfilled the requirements for a stay of execution pending appeal.
Analysis and determination
11. I have carefully considered the application before me, the affidavits in support and opposition, alongside the oral submissions made. The Applicant seeks to stay the orders of the trial court issued on 23 rd December, 2025.
12. The principles to be considered when granting an order for stay of execution have been well articulated in the locus classicus case of Butt v Rent Restriction Tribunal (1982) KLR 417, where the Court of Appeal held that;
1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. 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 that appeal court reverse the judge’s discretion.
3. 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.
4. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. 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 for costs as ordered will cause the order for stay of execution to lapse.”
13. The impugned ruling was delivered on 23 rd December, 2025 and the application for stay was filed on 9 th January, 2026. This Court therefore finds that the application was filed timeously.
14. The Applicant has placed before this Court evidence that the Respondent has already commenced garnishee proceedings against the Applicant’s bank accounts in execution of the impugned orders. The garnishee application is dated 13 th February, 2026. The implication here is that, without the Court’s intervention through stay orders, the execution process will proceed before the hearing and determination of the appeal which challenges the validity of the claim for arrears and the extension of parental responsibility.
15. At the proceedings before the Deputy Registrar, parties confirmed that the record of appeal has been duly filed and served. Upon perusal of the memorandum of appeal dated 9 th January, 2026, this Court is satisfied that the grounds of appeal raise substantive and triable issues of law and fact that are not frivolous. In the absence of full ventilation, there is a relative risk that the appeal may be rendered nugatory.
16. This Court has also considered the welfare of the children, which is paramount under Article 53 (2) of the Constitution. There is uncontroverted evidence that the Applicant has fulfilled and continues to fulfil the obligation to pay the children’s fees. Annexures JIM6 and JIM7 confirm payment of fees. The Respondent acknowledges this support; however, she asserts that the arrears pertain to maintenance obligations, whereas the Applicant contends that there are no arrears. Further, it is acknowledged that the children continue to receive direct financial support from the Applicant. Critically, there is no evidence of imminent risk to the children’s education, health and sustenance should the stay orders be granted. The balance of convenience tilts in preserving the status quo pending appeal.
17. Having weighed the principles in Butt v Rent Restriction Tribunal (1982) KLR 417, this Court finds that a conditional stay is the most just and equitable order in this matter.
18. Accordingly, the execution of the orders issued on 23 rd December, 2025, is hereby stayed pending the hearing and determination of the appeal on condition that the Applicant shall continue to pay the children’s school fees, provide reasonable sustenance and maintain an active medical insurance for the children. The Applicant shall file proof of compliance every 60 days through an affidavit. In the event of non-compliance, execution shall proceed.
19. Costs of the application shall abide by the outcome of the appeal.
20. The parties agreed to consolidate the miscellaneous file with the appeal file. Since there are no further proceedings in the miscellaneous file, it is hereby closed. The proceedings shall continue in the main appeal file.
21. Orders accordingly.
DATED and DELIVERED at NAIROBI on this 23 RD day of JUNE, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Ms. Beryl Anindo
Mr. Maina Advocate for the Applicant
Ms. Mumbi Advocate holding brief for Ms Morara Advocate for the Respondent
CIVIL APPEAL E020 OF 2026 RULING2