1. The Hon Nelly Chepchirchir delivered a ruling on 24th October 2025, vide which she ordered, in part, at paragraph 42(h), that:-
“The Plaintiff shall have a period of six (6) months from the date of this judgment to look for alternative accommodation. For avoidance of doubt, she ought to have handed over vacant possession to the defendant by 1st May 2026.”
2. The Appellant/Applicant was aggrieved by the said decision. Consequently, she filed an appeal to this Court. In her appeal dated 10th November 2025, she impugned the decision of the Court below on the ground that the learned Magistrate was wrong to order, on the one hand, that she vacate what she described as the matrimonial home, while, on the other hand, acknowledging that she had no jurisdiction to determine matters relating to matrimonial property. She further submitted that the learned magistrate failed to consider that she had lived in the said house for more than 4 years, failed to have regard to the fact that she earns less than the respondent, failed to give sufficient heed to Article 53(2) of the Constitution, and issued an order that was manifestly unjust, oppressive and against the weight of evidence.
3. The applicant concomitantly filed an application for a stay of execution of the judgment pending appeal and for costs to be provided for. The application was supported by the affidavit of the appellant/applicant, sworn on 10th November 2025.
4. The application was opposed by the Respondent. Mr Joseph Otieno made a sworn deposition on 24th December 2025, in which he accused the appellant/applicant of dishonesty for appealing only against one part of the judgment. He averred that the application lacked merit, was marred by falsehood, was frivolous, vexatious, bad in law, or otherwise an abuse of the process of the Court. He denied that the subject house was a matrimonial home, contending that he had purchased it solely and that the appellant/applicant had occupied it for only 18 months.
5. Mr Otieno contended that it wasn’t true that he earned more than the appellant/applicant. He stated that she earned more, as she had a salary, 2 rental homes and a chicken business. He indicated that the appellant/applicant had, on numerous occasions, attempted to evict him from his house, but that her plans were thwarted by the Court. He denied that her eviction would render her homeless. He contended that the appellant previously lived in her own home with the children.
6. Mr Otieno attached, among other documents, a social enquiry report prepared by Mr Bryant Ouma, a children officer, based at the Directorate of Children Services’ office, Jomvu. Mr Ouma recommended that the appellant/applicant vacate the house in Miritini so that the respondent could return.
7. The appellant/applicant deposed to a supplementary affidavit, sworn on 3rd February 2026, in which she denied the contents of the replying affidavit. She reiterated that, having been lawfully married to the respondent, the subject property had become matrimonial property. She also reiterated that the Court below had no jurisdiction to order her eviction.
8. The application was canvassed through written submissions. The appellant/applicant's submissions are dated 18th February 2026, and the Respondent's submissions are dated 12th March 2026. I have considered these submissions carefully.
9. What is before me is an application for a stay of execution of the impugned decision pending appeal. The merits of the appeal will be considered by the judge who will hear it. My task is therefore necessarily limited. Under Order 42 Rule 6 of the Civil Procedure Rules, the appellant/applicant seeking a stay pending appeal must show that:
1. That she stands to suffer substantial loss unless a stay is granted;
2. That the application was filed without undue delay;
3. Provide security for the due performance of the decree that may ultimately be binding on her.
10. I must note that this is an appeal against the decision of the Children’s Court in a children's matter. The foregoing conditions must therefore be subject to the rider that any decision the Court makes must be in the children's interest. It cannot be overemphasized that the best interest being considered is that of the children, not the parents.
11. Has the applicant met the above conditions? And should the orders prayed for issue?
12. From the report of the children officer, it would appear to me that the appellant/applicant is in occupation of the house in Miritini and that she resides therein with the children. Whether the house is a matrimonial home is not something that this Court has been called upon to determine, nor is it the subject of the appeal. If the judgment is executed, she will be required to exit the house by 30th April 2026 and move into a house she will pay for herself. Does this amount to a substantial loss? Will doing so be in the best interest of the children?
13. In RWW v EKW [2019] KEHC 6523 (KLR), the Court held that:
“18. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of an appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his or her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
14. As earlier indicated, the Court must consider the best interest principle. In LDT v PAO [2021]eKLR, the Court held that:
“When considering a stay of execution in respect of children matters, besides the above, the Court has to consider the best interests of the child. The applicant is expected to demonstrate that the minors will suffer if the stay is not granted…. The best interest of a child is superior to the rights and wishes of parents; they should incorporate the welfare of the child in its widest sense.”
15. Similarly, in the case of DNC v NMC[2021]eKLR, the Court held that:
“The case before the Court involves the custody of a minor rather than a money decree. Reference to substantial loss must be quantified from the point of view of the affected child who is the subject of the orders being appealed against and is the one likely to suffer.”
16. In my view, the execution of the impugned order will result in the children and their mother exiting their current home. The mother's ability to procure an alternative home is not assured. I am satisfied that the applicant and her children will suffer substantial loss unless a stay is granted.
17. There is no doubt that the application was filed without undue delay. On security for the due performance of the decree, it is my view that the same is not necessary in children's matters.
18. The upshot of the foregoing is that I find and hold that the application dated 10th November 2025 has merit. Consequently:
1. Execution of the judgment of the Court below, in particular the part requiring the applicant to exit her current home, is hereby stayed pending the hearing and determination of the appeal;
2. Parties will bear their own costs.
19. In the interest of justice, I order that the appeal be fast-tracked. This matter will be mentioned before Visram J on 18th June 2026 for further directions.
20. It is so ordered.
Dated and signed this 16th day of April 2026. Delivered virtually through Microsoft TEAMS.
“The Plaintiff shall have a period of six (6) months from the date of this judgment to look for alternative accommodation. For avoidance of doubt, she ought to have handed over vacant possession to the defendant by 1st May 2026.”
2. The Appellant/Applicant was aggrieved by the said decision. Consequently, she filed an appeal to this Court. In her appeal dated 10th November 2025, she impugned the decision of the Court below on the ground that the learned Magistrate was wrong to order, on the one hand, that she vacate what she described as the matrimonial home, while, on the other hand, acknowledging that she had no jurisdiction to determine matters relating to matrimonial property. She further submitted that the learned magistrate failed to consider that she had lived in the said house for more than 4 years, failed to have regard to the fact that she earns less than the respondent, failed to give sufficient heed to Article 53(2) of the Constitution, and issued an order that was manifestly unjust, oppressive and against the weight of evidence.
3. The applicant concomitantly filed an application for a stay of execution of the judgment pending appeal and for costs to be provided for. The application was supported by the affidavit of the appellant/applicant, sworn on 10th November 2025.
4. The application was opposed by the Respondent. Mr Joseph Otieno made a sworn deposition on 24th December 2025, in which he accused the appellant/applicant of dishonesty for appealing only against one part of the judgment. He averred that the application lacked merit, was marred by falsehood, was frivolous, vexatious, bad in law, or otherwise an abuse of the process of the Court. He denied that the subject house was a matrimonial home, contending that he had purchased it solely and that the appellant/applicant had occupied it for only 18 months.
5. Mr Otieno contended that it wasn’t true that he earned more than the appellant/applicant. He stated that she earned more, as she had a salary, 2 rental homes and a chicken business. He indicated that the appellant/applicant had, on numerous occasions, attempted to evict him from his house, but that her plans were thwarted by the Court. He denied that her eviction would render her homeless. He contended that the appellant previously lived in her own home with the children.
6. Mr Otieno attached, among other documents, a social enquiry report prepared by Mr Bryant Ouma, a children officer, based at the Directorate of Children Services’ office, Jomvu. Mr Ouma recommended that the appellant/applicant vacate the house in Miritini so that the respondent could return.
7. The appellant/applicant deposed to a supplementary affidavit, sworn on 3rd February 2026, in which she denied the contents of the replying affidavit. She reiterated that, having been lawfully married to the respondent, the subject property had become matrimonial property. She also reiterated that the Court below had no jurisdiction to order her eviction.
8. The application was canvassed through written submissions. The appellant/applicant's submissions are dated 18th February 2026, and the Respondent's submissions are dated 12th March 2026. I have considered these submissions carefully.
9. What is before me is an application for a stay of execution of the impugned decision pending appeal. The merits of the appeal will be considered by the judge who will hear it. My task is therefore necessarily limited. Under Order 42 Rule 6 of the Civil Procedure Rules, the appellant/applicant seeking a stay pending appeal must show that:
1. That she stands to suffer substantial loss unless a stay is granted;
2. That the application was filed without undue delay;
3. Provide security for the due performance of the decree that may ultimately be binding on her.
10. I must note that this is an appeal against the decision of the Children’s Court in a children's matter. The foregoing conditions must therefore be subject to the rider that any decision the Court makes must be in the children's interest. It cannot be overemphasized that the best interest being considered is that of the children, not the parents.
11. Has the applicant met the above conditions? And should the orders prayed for issue?
12. From the report of the children officer, it would appear to me that the appellant/applicant is in occupation of the house in Miritini and that she resides therein with the children. Whether the house is a matrimonial home is not something that this Court has been called upon to determine, nor is it the subject of the appeal. If the judgment is executed, she will be required to exit the house by 30th April 2026 and move into a house she will pay for herself. Does this amount to a substantial loss? Will doing so be in the best interest of the children?
13. In RWW v EKW [2019] KEHC 6523 (KLR), the Court held that:
“18. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of an appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his or her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
14. As earlier indicated, the Court must consider the best interest principle. In LDT v PAO [2021]eKLR, the Court held that:
“When considering a stay of execution in respect of children matters, besides the above, the Court has to consider the best interests of the child. The applicant is expected to demonstrate that the minors will suffer if the stay is not granted…. The best interest of a child is superior to the rights and wishes of parents; they should incorporate the welfare of the child in its widest sense.”
15. Similarly, in the case of DNC v NMC[2021]eKLR, the Court held that:
“The case before the Court involves the custody of a minor rather than a money decree. Reference to substantial loss must be quantified from the point of view of the affected child who is the subject of the orders being appealed against and is the one likely to suffer.”
16. In my view, the execution of the impugned order will result in the children and their mother exiting their current home. The mother's ability to procure an alternative home is not assured. I am satisfied that the applicant and her children will suffer substantial loss unless a stay is granted.
17. There is no doubt that the application was filed without undue delay. On security for the due performance of the decree, it is my view that the same is not necessary in children's matters.
18. The upshot of the foregoing is that I find and hold that the application dated 10th November 2025 has merit. Consequently:
1. Execution of the judgment of the Court below, in particular the part requiring the applicant to exit her current home, is hereby stayed pending the hearing and determination of the appeal;
2. Parties will bear their own costs.
19. In the interest of justice, I order that the appeal be fast-tracked. This matter will be mentioned before Visram J on 18th June 2026 for further directions.
20. It is so ordered.
Dated and signed this 16th day of April 2026. Delivered virtually through Microsoft TEAMS.