(Being an appeal from the decision of Hon. Bernard Ochoi, CM, delivered on 19 th January, 2026, in the Nairobi Children’s Case No. E258 of 2025)
1. The parties in this case are involved in a custody and maintenance dispute at the Children’s Court in Nairobi concerning KWN, a minor. The matter is pending hearing and determination.
2. On 23 rd July, 2025 the Trial Court made an order for interim maintenance directing the Appellant to pay school fees and related educational expenses for the minor for an upcoming term. Aggrieved, the Appellant made an oral application for a stay pending appeal, and the Trial Court, in a decision rendered on 30 th July, 2026, ordered that the orders of 23 rd July, 2025, remain in force pending the hearing and determination of the suit. Thereafter, the parties were engaged in negotiations, which were unsuccessful, and the Court was again prompted on 19 th January, 2026 regarding the issue of school fees.
3. On that date, the Trial Court ordered that the Appellant pay the entire school fees for the term, while the parties proceeded with further negotiations. It also added that no further payments would be made unless a formal application was made, a determination was made or consent was reached.
4. Aggrieved by the said decision, the Appellant lodged the present appeal. Subsequently, by a Notice of Motion dated 18 th February, 2026, the Appellant seeks, inter alia, orders for a stay of execution of the said orders and a stay of proceedings pending the hearing and determination of the appeal. The Application is supported by the Supporting Affidavit of even date.
5. The Application is opposed. The Respondent filed a Replying Affidavit dated 1 st April, 2026.
6. The Appellant’s case is that the parties had a verbal agreement as to the matters of the minor by which the Respondent undertook to cater for all the minor’s needs, and the Appellant’s sole role was as a donor in the In-Vitro Fertilisation, and he was never to assume parental responsibility.
7. He argues that since he had complied with the earlier order (23 rd July, 2025) on payment of school fees, the Trial Court erred in extending the orders which were made subject to the outcome of the suit.
8. He argued that the part payment of school fees that he had made in the month of January, 2026, was made without prejudice and without admission of parental responsibility.
9. He asked the Court to grant the stay orders, as the execution of the orders would expose him to loss.
10. The Respondent, on the other hand, asserts that there was no agreement to exonerate the Appellant from parental responsibility.
11. She submitted that granting stay orders would negatively impact the Child’s access to education.
12. The Respondent asked the Court to consider that the Child has a medical condition (autism) and is enrolled in a special school.
Analysis and determination
13. Having considered the application herein, the response thereto, and the submissions by the parties, the issue for determination is whether the Applicant has met the threshold for the grant of stay of execution and stay of proceedings pending appeal.
14. Under Order 42, Rule 6 of the Civil Procedure Rules, an appeal does not automatically stay the execution of a decree or order, nor does it automatically stay proceedings in the case. To obtain a stay of execution order, the Applicant must demonstrate substantial loss, show there is no delay, and provide security for costs.
15. In matters concerning Children, these requirements are not applied in isolation. They are to be read together with the constitutional command under Article 53 (2) that a Child’s best interests are of paramount importance in every matter concerning the Child.
16. Courts are also required to exercise extreme caution before granting stay of execution and stay of proceedings orders. This was restated in BRO v WJNW (Suing as Mother and next friend of DJO (Minor) [2020] eKLR , where the Court held as follows;
“38. It is trite that in children matters, courts should exercise extreme caution before granting stay of execution orders. This is because issues of maintenance do affect the welfare and livelihood of a minor. To allow stay will imply stoppage of some sphere of life e.g a child will not eat, dress drink or have shelter. The orders sought against the minor’s mother have a direct negative effect to the welfare of the minor whose interest ranks first in priority to those of the parents.”
17. In this case, the application was brought without delay. However, while the Appellant states that he will suffer financial prejudice, the Child’s right to education will be most affected if a stay of execution is granted, as the orders sought to be stayed relate to payment of her school fees. The Court must give priority to this right, as it takes precedence over the concerns raised by the Appellant.
18. In this case, paternity is not denied; the issue of parental responsibility post the In- itro Fertilisation has been framed for determination by the Children’s Court. The Trial Court has defined the parties’ responsibilities during the interim period and directed that no further order on fees will be issued unless the parties reach a mutual agreement or a formal application is filed while the matter awaits hearing and determination.
19. The Child has a medical condition (autism and attention deficit/hyperactivity disorder) and is attending a special school. The Respondent has demonstrated that the Child needs stability; the Child’s current needs cannot be deferred until the hearing and determination of the appeal.
20. The Trial Court has fixed the matter for hearing on 24 th June, 2026 and has issued directions for an accelerated hearing and determination of the matter. Accordingly, the parties should take steps to ensure that the matter is heard without delay.
21. It is not in the best interests of the Child to grant a stay of execution of the order on payment of school fees, nor a stay of proceedings in the children’s case pending appeal. The application dated 18 th February, 2026 is dismissed. Costs in the cause.
22. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 3 RD day of JUNE, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Ms. Ogolla, Advocate holding brief for Marete, Advocate for the Appellant
Ms. Okulo, Advocate for the Respondent
CIVIL APPEAL E097 OF 2026 RULING2
1. The parties in this case are involved in a custody and maintenance dispute at the Children’s Court in Nairobi concerning KWN, a minor. The matter is pending hearing and determination.
2. On 23 rd July, 2025 the Trial Court made an order for interim maintenance directing the Appellant to pay school fees and related educational expenses for the minor for an upcoming term. Aggrieved, the Appellant made an oral application for a stay pending appeal, and the Trial Court, in a decision rendered on 30 th July, 2026, ordered that the orders of 23 rd July, 2025, remain in force pending the hearing and determination of the suit. Thereafter, the parties were engaged in negotiations, which were unsuccessful, and the Court was again prompted on 19 th January, 2026 regarding the issue of school fees.
3. On that date, the Trial Court ordered that the Appellant pay the entire school fees for the term, while the parties proceeded with further negotiations. It also added that no further payments would be made unless a formal application was made, a determination was made or consent was reached.
4. Aggrieved by the said decision, the Appellant lodged the present appeal. Subsequently, by a Notice of Motion dated 18 th February, 2026, the Appellant seeks, inter alia, orders for a stay of execution of the said orders and a stay of proceedings pending the hearing and determination of the appeal. The Application is supported by the Supporting Affidavit of even date.
5. The Application is opposed. The Respondent filed a Replying Affidavit dated 1 st April, 2026.
6. The Appellant’s case is that the parties had a verbal agreement as to the matters of the minor by which the Respondent undertook to cater for all the minor’s needs, and the Appellant’s sole role was as a donor in the In-Vitro Fertilisation, and he was never to assume parental responsibility.
7. He argues that since he had complied with the earlier order (23 rd July, 2025) on payment of school fees, the Trial Court erred in extending the orders which were made subject to the outcome of the suit.
8. He argued that the part payment of school fees that he had made in the month of January, 2026, was made without prejudice and without admission of parental responsibility.
9. He asked the Court to grant the stay orders, as the execution of the orders would expose him to loss.
10. The Respondent, on the other hand, asserts that there was no agreement to exonerate the Appellant from parental responsibility.
11. She submitted that granting stay orders would negatively impact the Child’s access to education.
12. The Respondent asked the Court to consider that the Child has a medical condition (autism) and is enrolled in a special school.
Analysis and determination
13. Having considered the application herein, the response thereto, and the submissions by the parties, the issue for determination is whether the Applicant has met the threshold for the grant of stay of execution and stay of proceedings pending appeal.
14. Under Order 42, Rule 6 of the Civil Procedure Rules, an appeal does not automatically stay the execution of a decree or order, nor does it automatically stay proceedings in the case. To obtain a stay of execution order, the Applicant must demonstrate substantial loss, show there is no delay, and provide security for costs.
15. In matters concerning Children, these requirements are not applied in isolation. They are to be read together with the constitutional command under Article 53 (2) that a Child’s best interests are of paramount importance in every matter concerning the Child.
16. Courts are also required to exercise extreme caution before granting stay of execution and stay of proceedings orders. This was restated in BRO v WJNW (Suing as Mother and next friend of DJO (Minor) [2020] eKLR , where the Court held as follows;
“38. It is trite that in children matters, courts should exercise extreme caution before granting stay of execution orders. This is because issues of maintenance do affect the welfare and livelihood of a minor. To allow stay will imply stoppage of some sphere of life e.g a child will not eat, dress drink or have shelter. The orders sought against the minor’s mother have a direct negative effect to the welfare of the minor whose interest ranks first in priority to those of the parents.”
17. In this case, the application was brought without delay. However, while the Appellant states that he will suffer financial prejudice, the Child’s right to education will be most affected if a stay of execution is granted, as the orders sought to be stayed relate to payment of her school fees. The Court must give priority to this right, as it takes precedence over the concerns raised by the Appellant.
18. In this case, paternity is not denied; the issue of parental responsibility post the In- itro Fertilisation has been framed for determination by the Children’s Court. The Trial Court has defined the parties’ responsibilities during the interim period and directed that no further order on fees will be issued unless the parties reach a mutual agreement or a formal application is filed while the matter awaits hearing and determination.
19. The Child has a medical condition (autism and attention deficit/hyperactivity disorder) and is attending a special school. The Respondent has demonstrated that the Child needs stability; the Child’s current needs cannot be deferred until the hearing and determination of the appeal.
20. The Trial Court has fixed the matter for hearing on 24 th June, 2026 and has issued directions for an accelerated hearing and determination of the matter. Accordingly, the parties should take steps to ensure that the matter is heard without delay.
21. It is not in the best interests of the Child to grant a stay of execution of the order on payment of school fees, nor a stay of proceedings in the children’s case pending appeal. The application dated 18 th February, 2026 is dismissed. Costs in the cause.
22. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 3 RD day of JUNE, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Ms. Ogolla, Advocate holding brief for Marete, Advocate for the Appellant
Ms. Okulo, Advocate for the Respondent
CIVIL APPEAL E097 OF 2026 RULING2