1. The Applicant approached this court through an amended Notice of Motion dated 18th February, 2025 seeking orders that;
i. Spent.
ii. That this honourable court be pleased to stay execution of the judgment, decree and all consequential orders of the Children’s Court made in Nyahururu Magistrate’s Court Children Case No. E011 of 2024 on the 10th February, 2025 pending the hearing and determination of this application.
iii. That this honourable court be pleased to stay execution of the judgment, decree and all consequential orders of the Children’s Court made in Nyahururu Chief Magistrate’s Court Children Case No. E011 of 2024 on the 10th February, 2025, pending the hearing and determination of the appeal.
iv. That pending hearing and determination of this application and the appeal, the status quo be maintained.
v. That pending hearing and determination of this application and the appeal, the Applicant pay a contribution of Kshs.2,500/- to the Respondent towards the maintenance of the minor M.N.K.
vi. That the cost of this application be in cause.
2. The substratum of the application is that the Applicant cohabited with the Respondent from 2015 and were blessed with 3 issues, subjects of these proceedings. Subsequently, the parties separated and mutually agreed to the Applicant having custody of Minors JMK and LTK while the Respondent remained with custody of MNK who was at the time breastfeeding.
3. That their mutual agreement was that the minors JMK and LTK were to be in physical custody of the Applicant’s parents since the Applicant was working in Nairobi. The minors are currently schooling at Vision Academy, Subukia and any interference will adversely affect their schooling. That as agreed the Applicant has been supporting the minor who is in custody of the Respondent and all parties have had unlimited access to the minors in custody of the other parent.
4. That the Respondent filed Nyahururu Children’s Case No. E011 of 2024 and through the judgment delivered on 10th February, 2025 custody of the minors was granted to the Respondent and the Applicant was required to contribute a sum of Kshs.20,000/- monthly towards maintenance of the minors and also to provide for the minor’s education and education needs. That in the plaint dated 13th May, 2024, the Respondent only sought orders that the Applicant provides for education and educational needs for the minors and to cater for medical needs for the minors. That there was no prayer for contribution towards minors as the same was catered for by the Respondent.
5. That the Applicant will not manage to raise Kshs.20,000/- per month considering that he has other responsibilities. That the order was made without the court calling for a children’s report to establish the best interest of the minors; taking custody of the minors will interfere with their education at the middle of the academic year against their interest.
6. That the Appeal has high chances of succeeding hence will be rendered nugatory and the minors and Applicant will suffer substantial loss if execution of the judgment is not stayed. He proposes to pay school fees and school related expenses for the minors then to contribute Kshs.10,000/-, Kshs.2,500/- towards maintenance of the minors herein pending determination of the appeal.
7. In a response thereto, the Respondent filed a replying affidavit, she deposed that the advocates who filed the application have violated Order 9 Rule 9 of the Civil Procedure Rules which makes the application defective ab initio.
8. That the intention of the Applicant is to delay the enjoyment of the fruits of the judgment against the rule of law. that after the judgment was delivered, she has not tried to get custody of JMK and LTK because she is aware they are still attending school. That considering the best interest of the minors JMK and LTK she has already identified a school for them. That she has paid fees for the third term and is willing to pay fees for the remaining part of the term.
9. That the Applicant made up a conclusion that the children must be moved without having a conversation with her on the way forward in the interest of the minors. That the Applicant has not thought of the possibility that she is willing to relocate to a place near where the two subjects are studying and there will be no need of transferring the minors.
10. That if stay is granted, the minors will suffer irreparable harm as the Applicant is using the application to escape parental responsibility which is against the interest of justice.
11. I have considered rival arguments and also perused the lower court record. Notably this is a children’s matter where parties were represented by advocates. The Applicant was represented by Mathea Gikunju & Co. Advocates while the Respondent was represented by Gakuhu Chege & Associates.
12. At the appellate stage the appeal has been filed by W. Kendu & Co. Advocates. The final order included the order of there being no costs being a children’s matter. The question of a former advocate being protected does not arise. The provision of law was intended to remedy the question of change of advocate being effected without the knowledge of Counsel who had acted for party who may be entitled to some costs after judgment.
13. That notwithstanding, in Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) the Court of Appeal held that;
“Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.”
14. With that fact in mind, I proceed to determine the substantive issue before me. Enforcement orders emanating from children matters is in accordance with the Civil Procedure Rules. Principles of stay of execution are set out in Order 42 Rule 6(2) of the Civil Procedure Act that provide as follows;
“(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.”
15. The judgment herein was delivered on 10th February, 2025 while the application was filed on 11th February, 2025, a day later, there is absolutely no delay in filing the application.
16. On the question whether substantial loss may result unless the order is made. The Black’s Law Dictionary, Tenth Edition defines substantial as something relating/involving substance material. If it is change of circumstances it would be real and not what can be imagined. Therefore, substantial loss may be stated to be something real that is of great magnitude. This may differ depending on circumstances of each case. In Century Oil Trading Company Ltd v Kenya Shell Limited Nairobi [2007] KEHC 3016 (KLR) it was stated that;
“The word substantial loss as it relates to a money decree, the financial position of both the Applicant and the Respondent becomes an issue. In such a case, the Court must balance the interest of the Applicant who is seeking to preserve the status quo pending appeal, and the interest of the Respondent who wishes to enjoy the fruits of their judgement.
17. In Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the court stated that;
“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.”
18. This being a children’s matter, consideration must be placed on the best interests of the children involved. What can be discerned from the application is that there was a mutual understanding which resulted into the Applicant having two (2) of the minors. It is now stated that they are not in his actual custody but that of his parents. Hence the court impugned decision.
19. As appreciated by the Respondent, the two minors are attending school hence she has not attempted to execute the court order (see paragraph 6 of the replying affidavit). Although it is alleged that she has already identified a school for them to attend, it will be in the interest of justice if the appeal is heard and determined prior to further orders being made. This is 2nd term, moving children from one school to another in the middle of the term may not be favourable and in their best interest.
20. For the reason given, I do order that status quo be maintained; and in the meantime, the Applicant shall be required to contribute Kshs.3,500/ towards maintenance of MNK on monthly basis pending hearing and determination of the appeal.
21. In default, the order shall stand vacated and the judgment of the lower court executed.
22. It is so ordered.
i. Spent.
ii. That this honourable court be pleased to stay execution of the judgment, decree and all consequential orders of the Children’s Court made in Nyahururu Magistrate’s Court Children Case No. E011 of 2024 on the 10th February, 2025 pending the hearing and determination of this application.
iii. That this honourable court be pleased to stay execution of the judgment, decree and all consequential orders of the Children’s Court made in Nyahururu Chief Magistrate’s Court Children Case No. E011 of 2024 on the 10th February, 2025, pending the hearing and determination of the appeal.
iv. That pending hearing and determination of this application and the appeal, the status quo be maintained.
v. That pending hearing and determination of this application and the appeal, the Applicant pay a contribution of Kshs.2,500/- to the Respondent towards the maintenance of the minor M.N.K.
vi. That the cost of this application be in cause.
2. The substratum of the application is that the Applicant cohabited with the Respondent from 2015 and were blessed with 3 issues, subjects of these proceedings. Subsequently, the parties separated and mutually agreed to the Applicant having custody of Minors JMK and LTK while the Respondent remained with custody of MNK who was at the time breastfeeding.
3. That their mutual agreement was that the minors JMK and LTK were to be in physical custody of the Applicant’s parents since the Applicant was working in Nairobi. The minors are currently schooling at Vision Academy, Subukia and any interference will adversely affect their schooling. That as agreed the Applicant has been supporting the minor who is in custody of the Respondent and all parties have had unlimited access to the minors in custody of the other parent.
4. That the Respondent filed Nyahururu Children’s Case No. E011 of 2024 and through the judgment delivered on 10th February, 2025 custody of the minors was granted to the Respondent and the Applicant was required to contribute a sum of Kshs.20,000/- monthly towards maintenance of the minors and also to provide for the minor’s education and education needs. That in the plaint dated 13th May, 2024, the Respondent only sought orders that the Applicant provides for education and educational needs for the minors and to cater for medical needs for the minors. That there was no prayer for contribution towards minors as the same was catered for by the Respondent.
5. That the Applicant will not manage to raise Kshs.20,000/- per month considering that he has other responsibilities. That the order was made without the court calling for a children’s report to establish the best interest of the minors; taking custody of the minors will interfere with their education at the middle of the academic year against their interest.
6. That the Appeal has high chances of succeeding hence will be rendered nugatory and the minors and Applicant will suffer substantial loss if execution of the judgment is not stayed. He proposes to pay school fees and school related expenses for the minors then to contribute Kshs.10,000/-, Kshs.2,500/- towards maintenance of the minors herein pending determination of the appeal.
7. In a response thereto, the Respondent filed a replying affidavit, she deposed that the advocates who filed the application have violated Order 9 Rule 9 of the Civil Procedure Rules which makes the application defective ab initio.
8. That the intention of the Applicant is to delay the enjoyment of the fruits of the judgment against the rule of law. that after the judgment was delivered, she has not tried to get custody of JMK and LTK because she is aware they are still attending school. That considering the best interest of the minors JMK and LTK she has already identified a school for them. That she has paid fees for the third term and is willing to pay fees for the remaining part of the term.
9. That the Applicant made up a conclusion that the children must be moved without having a conversation with her on the way forward in the interest of the minors. That the Applicant has not thought of the possibility that she is willing to relocate to a place near where the two subjects are studying and there will be no need of transferring the minors.
10. That if stay is granted, the minors will suffer irreparable harm as the Applicant is using the application to escape parental responsibility which is against the interest of justice.
11. I have considered rival arguments and also perused the lower court record. Notably this is a children’s matter where parties were represented by advocates. The Applicant was represented by Mathea Gikunju & Co. Advocates while the Respondent was represented by Gakuhu Chege & Associates.
12. At the appellate stage the appeal has been filed by W. Kendu & Co. Advocates. The final order included the order of there being no costs being a children’s matter. The question of a former advocate being protected does not arise. The provision of law was intended to remedy the question of change of advocate being effected without the knowledge of Counsel who had acted for party who may be entitled to some costs after judgment.
13. That notwithstanding, in Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) the Court of Appeal held that;
“Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.”
14. With that fact in mind, I proceed to determine the substantive issue before me. Enforcement orders emanating from children matters is in accordance with the Civil Procedure Rules. Principles of stay of execution are set out in Order 42 Rule 6(2) of the Civil Procedure Act that provide as follows;
“(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.”
15. The judgment herein was delivered on 10th February, 2025 while the application was filed on 11th February, 2025, a day later, there is absolutely no delay in filing the application.
16. On the question whether substantial loss may result unless the order is made. The Black’s Law Dictionary, Tenth Edition defines substantial as something relating/involving substance material. If it is change of circumstances it would be real and not what can be imagined. Therefore, substantial loss may be stated to be something real that is of great magnitude. This may differ depending on circumstances of each case. In Century Oil Trading Company Ltd v Kenya Shell Limited Nairobi [2007] KEHC 3016 (KLR) it was stated that;
“The word substantial loss as it relates to a money decree, the financial position of both the Applicant and the Respondent becomes an issue. In such a case, the Court must balance the interest of the Applicant who is seeking to preserve the status quo pending appeal, and the interest of the Respondent who wishes to enjoy the fruits of their judgement.
17. In Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the court stated that;
“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.”
18. This being a children’s matter, consideration must be placed on the best interests of the children involved. What can be discerned from the application is that there was a mutual understanding which resulted into the Applicant having two (2) of the minors. It is now stated that they are not in his actual custody but that of his parents. Hence the court impugned decision.
19. As appreciated by the Respondent, the two minors are attending school hence she has not attempted to execute the court order (see paragraph 6 of the replying affidavit). Although it is alleged that she has already identified a school for them to attend, it will be in the interest of justice if the appeal is heard and determined prior to further orders being made. This is 2nd term, moving children from one school to another in the middle of the term may not be favourable and in their best interest.
20. For the reason given, I do order that status quo be maintained; and in the meantime, the Applicant shall be required to contribute Kshs.3,500/ towards maintenance of MNK on monthly basis pending hearing and determination of the appeal.
21. In default, the order shall stand vacated and the judgment of the lower court executed.
22. It is so ordered.