1. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 & 332, the passage states that the stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.
2. By Chamber Summons dated 3rd June 2026 brought under articles 25(c), 28, 29, 47, 48, 50 and 53 of the Constitution of Kenya and section 110, 114, 119 and 121 of the Children Act 2022, Section 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law is seeking;
a. Pending inter-parte hearing of this application, there be stay of the execution of the orders delivered on 22nd May 2026 in Milimani Children Court Case No. E1753/2024.
b. Pending inter-parte hearing of the Appeal, there be an order restraining the issuance, execution or enforcement of any warrants of arrest arising from the ruling and orders delivered on 22nd May 2026 in the Milimani Children Court Case No. E1753/2024.
c. Pending inter-parte hearing of the Appeal, the timeliness of payment imposed by the subordinate court be suspended and /or stayed.
d. Cost of the application to abide the outcome of the appeal.
3. The grounds are on the body of the application as well as in the supporting affidavit;
a. The appeal raises serious and arguable questions of law and fact.
b. The trial magistrate granted reimbursement of expenses that had neither been demanded from nor brought to the attention of the applicant prior to filing and hearing of notice to show cause (NTSC).
c. The learned magistrate awarded S.K.’s allowance notwithstanding the Respondent’s own pleadings concerning responsibility of such expenses.
d. The learned magistrate awarded reimbursement incurred unilaterally and without prior consultation, notice of agreement.
e. The learned magistrate failed to make a finding that the applicant has been deprived of the use, possession and or income from properties he brought during the subsistence of the marriage which materially affects his ability to comply with the payment.
f. The learned magistrate failed to adequately consider the applicant’s financial circumstances and the ability to comply with the payment schedule imposed.
g. The learned Magistrates that warrants of arrest shall issue upon default of any instalment thereby exposing the applicant to eminent deprivation of liberty before the appeal is heard and determined.
h. Unless stay is granted, the appeal shall be rendered nugatory.
i. The applicant stands to suffer substantial loss if the execution proceeds, the appeal had been filed expeditiously and in good faith.
4. In reply, the Respondent has opposed the application on the grounds;
a. That in Children matters, under article 53(2) of the Constitution of Kenya and Children Act, child’s best interest is of paramount interest and it cannot be stayed unconditionally to the detriment of the minors.
b. On the strength of the appellant’s replying affidavit dated 30th March, 2026, the applicant explicitly admitted his liability and default in the lower court.
c. The Respondent single handedly paid school fees arears in the sum of Kshs308,700/and maintenance arrears of Kshs210,000/ and so out of Kshs671,428.04 that the court ordered, a sum of Kshs518,700/= consists of admissions by the Applicant.
d. The applicant cannot stay execution of undisputed, admitted sum critical child’s maintenance and education expenses.
e. The applicant has not demonstrated any substantial loss that he would suffer if the decretal is paid for the maintenance of the children.
f. The applicant is a man of means possessing numerous real estate assets and evidenced under paragraph 27(d)-(g) of the lower court’s affidavit.
5. Should the court be inclined to stay the execution, then the same must be conditional upon payment of Kshs518,700 directly to the Respondent within seven days and the balance of Kshs152,728.04 to be dealt within the court’s discretion.
Analysis and Determination :
6. 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.”
7. These principles were enunciated in Butt Vs Rent Restriction Tribunal [1979] the Court of Appe al 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. However, in children matters, the parameters under Order 42 Rule 6 do not apply as a matter of cause. Best Interest of Children overrides the three-tier parameters and so, the courts would have to view Order 42 rule 6 through a different lense. Children are vulnerable groups under the Constitution and their survival cannot be anchored on Order 42 rule 6 of the Civil Procedure Rules when parents are determined to teach other, lifelong lessons.
11. I have with singleness of my mind, perused the memorandum of appeal and juxtaposed it with stay application and 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. As a condition for stay, the appellant to make a payment of Kshs518,700/to the Respondent being reimbursement and thereafter the historical monies monthly prior to the impugned Judgement till the appeal is disposed of.
d. Mention before Deputy Registrar to fix a hearing date for the Appeal in 12th October, 2026.
Delivered virtually this 16th September, 2026.
2. By Chamber Summons dated 3rd June 2026 brought under articles 25(c), 28, 29, 47, 48, 50 and 53 of the Constitution of Kenya and section 110, 114, 119 and 121 of the Children Act 2022, Section 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law is seeking;
a. Pending inter-parte hearing of this application, there be stay of the execution of the orders delivered on 22nd May 2026 in Milimani Children Court Case No. E1753/2024.
b. Pending inter-parte hearing of the Appeal, there be an order restraining the issuance, execution or enforcement of any warrants of arrest arising from the ruling and orders delivered on 22nd May 2026 in the Milimani Children Court Case No. E1753/2024.
c. Pending inter-parte hearing of the Appeal, the timeliness of payment imposed by the subordinate court be suspended and /or stayed.
d. Cost of the application to abide the outcome of the appeal.
3. The grounds are on the body of the application as well as in the supporting affidavit;
a. The appeal raises serious and arguable questions of law and fact.
b. The trial magistrate granted reimbursement of expenses that had neither been demanded from nor brought to the attention of the applicant prior to filing and hearing of notice to show cause (NTSC).
c. The learned magistrate awarded S.K.’s allowance notwithstanding the Respondent’s own pleadings concerning responsibility of such expenses.
d. The learned magistrate awarded reimbursement incurred unilaterally and without prior consultation, notice of agreement.
e. The learned magistrate failed to make a finding that the applicant has been deprived of the use, possession and or income from properties he brought during the subsistence of the marriage which materially affects his ability to comply with the payment.
f. The learned magistrate failed to adequately consider the applicant’s financial circumstances and the ability to comply with the payment schedule imposed.
g. The learned Magistrates that warrants of arrest shall issue upon default of any instalment thereby exposing the applicant to eminent deprivation of liberty before the appeal is heard and determined.
h. Unless stay is granted, the appeal shall be rendered nugatory.
i. The applicant stands to suffer substantial loss if the execution proceeds, the appeal had been filed expeditiously and in good faith.
4. In reply, the Respondent has opposed the application on the grounds;
a. That in Children matters, under article 53(2) of the Constitution of Kenya and Children Act, child’s best interest is of paramount interest and it cannot be stayed unconditionally to the detriment of the minors.
b. On the strength of the appellant’s replying affidavit dated 30th March, 2026, the applicant explicitly admitted his liability and default in the lower court.
c. The Respondent single handedly paid school fees arears in the sum of Kshs308,700/and maintenance arrears of Kshs210,000/ and so out of Kshs671,428.04 that the court ordered, a sum of Kshs518,700/= consists of admissions by the Applicant.
d. The applicant cannot stay execution of undisputed, admitted sum critical child’s maintenance and education expenses.
e. The applicant has not demonstrated any substantial loss that he would suffer if the decretal is paid for the maintenance of the children.
f. The applicant is a man of means possessing numerous real estate assets and evidenced under paragraph 27(d)-(g) of the lower court’s affidavit.
5. Should the court be inclined to stay the execution, then the same must be conditional upon payment of Kshs518,700 directly to the Respondent within seven days and the balance of Kshs152,728.04 to be dealt within the court’s discretion.
Analysis and Determination :
6. 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.”
7. These principles were enunciated in Butt Vs Rent Restriction Tribunal [1979] the Court of Appe al 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. However, in children matters, the parameters under Order 42 Rule 6 do not apply as a matter of cause. Best Interest of Children overrides the three-tier parameters and so, the courts would have to view Order 42 rule 6 through a different lense. Children are vulnerable groups under the Constitution and their survival cannot be anchored on Order 42 rule 6 of the Civil Procedure Rules when parents are determined to teach other, lifelong lessons.
11. I have with singleness of my mind, perused the memorandum of appeal and juxtaposed it with stay application and 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. As a condition for stay, the appellant to make a payment of Kshs518,700/to the Respondent being reimbursement and thereafter the historical monies monthly prior to the impugned Judgement till the appeal is disposed of.
d. Mention before Deputy Registrar to fix a hearing date for the Appeal in 12th October, 2026.
Delivered virtually this 16th September, 2026.