1. Before the Court is the Notice of Motion dated 11th May 2026. It is brought under sections 3, 3A and 63(e) of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules.
2. The Applicant seeks, principally, an order staying execution of the ruling and orders issued by the Children’s Court at Tononoka on 26th March 2026 pending the hearing and determination of this appeal. She also seeks an order directing that the children, BGO and CFO, be enrolled in their former schools, namely Hill School, Kakamega and PCEA Makupa, Mombasa, respectively.
3. The application is supported by the Applicant’s affidavit sworn on 11th May 2026. The Applicant is the mother of the two children.
4. The application is opposed through the replying affidavit sworn by No. 93443 Sergeant Irene Oduor, an investigator attached to the Directorate of Criminal Investigations, Anti-Human Trafficking and Child Protection Unit.
5. The Court has considered the application, the affidavits, the written submissions and the annexures placed before it.
6. The background to the application is that the Applicant had filed an application before the Children’s Court dated 10th December 2025. In that application, she sought the release of the children and other related reliefs concerning their placement and education.
7. The Children’s Court considered that application and, by its ruling delivered on 26th March 2026, dismissed it. The court consequently declined to grant the affirmative orders sought by the Applicant.
8. The Applicant has appealed against that decision. Pending determination of the appeal, she now seeks an order of stay under Order 42 rule 6 of the Civil Procedure Rules.
9. The principal issue for determination is whether the ruling delivered on 26th March 2026 is capable of being stayed.
10. Order 42 rule 6 contemplates a stay of execution of a decree or order. The jurisdiction is intended to preserve the subject matter of an appeal by preventing the enforcement or implementation of a positive and executable order pending determination of the appeal.
11. A distinction must therefore be drawn between a positive order, which directs a party to do or refrain from doing something, and a negative order, which merely dismisses an application or suit.
12. Where a court has dismissed an application, there is ordinarily nothing arising from that dismissal capable of execution. The dismissal does not command a party to perform any act. It merely leaves the parties in the position in which they stood before the unsuccessful application was made.
13. In the present case, the Children’s Court did not, in the ruling of 26th March 2026, grant an affirmative remedy against the Applicant. It dismissed her application dated 10th December 2025.
14. The order appealed against is therefore a negative order. There is nothing arising from it that is capable of being stayed under Order 42 rule 6.
15. An order staying the dismissal would not revive the application dated 10th December 2025, nor would it result in the children being released or enrolled in the schools specified by the Applicant. A stay of a dismissal cannot operate as an order granting the relief that was declined by the trial court.
16. The Applicant’s second substantive prayer confirms the true nature of the application. She asks this Court to direct that the children be enrolled in specified schools pending determination of the appeal.
17. That prayer is not incidental to a stay of execution. It seeks a new and affirmative order compelling a change in the children’s existing placement and educational arrangements.
18. The relief sought is, in substance, a mandatory injunction. It would require the Respondents and the agencies presently responsible for the children to take positive steps and alter the prevailing position before the appeal is heard.
19. The Applicant cannot obtain through an application for stay the substantive relief that the Children’s Court declined to grant. To do so would effectively allow the appeal at an interlocutory stage without hearing and determining it on its merits.
20. The designation given to an application is not decisive. The Court must examine the substance and practical effect of the orders sought. Although presented as an application for stay of execution, the application seeks to reverse the effect of the ruling appealed from and substitute it with affirmative orders in favour of the Applicant.
21. That relief does not fall within the scope of Order 42 rule 6. A stay preserves an existing position against execution. It does not create a new state of affairs or confer upon an unsuccessful litigant the relief that was refused by the trial court.
22. The proper procedure for challenging the dismissal of the application dated 10th December 2025 is through the appeal already filed. It is in that appeal that the Court will consider whether the Children’s Court erred in law or fact, whether it exceeded its jurisdiction, and whether the orders sought by the Applicant ought to have been granted.
23. Those questions should not be determined indirectly through an interlocutory application framed as one for stay.
24. The Court is also mindful that the matter concerns children and that their best interests are of paramount importance under Article 53(2) of the Constitution. That principle, however, does not confer jurisdiction upon the Court to stay an order that is incapable of execution or to grant a mandatory injunction under the guise of a stay.
25. The welfare, placement, education and protection of the children remain substantive matters for determination in the appeal. Given their nature, the appeal should be heard expeditiously.
26. The Respondents have maintained that the children are presently enrolled in secure educational institutions and are receiving protection and rehabilitative support. They have also raised concerns that disclosure of the children’s location or return to their former schools may compromise their safety and the pending criminal proceedings.
27. Those competing assertions cannot properly be resolved through an application seeking stay of a negative order. They require consideration on the basis of the complete record of appeal and the merits of the appeal.
28. In the result, the Notice of Motion dated 11th May 2026 is without merit and is dismissed.
29. As the dispute concerns children, each party shall bear its own costs of the application.
30. The Appellant shall file and serve the record of appeal, if not already filed, within twenty-one days from the date of this ruling.
31. The appeal shall thereafter be mentioned on a priority basis for directions and allocation of an expedited hearing date.
2. The Applicant seeks, principally, an order staying execution of the ruling and orders issued by the Children’s Court at Tononoka on 26th March 2026 pending the hearing and determination of this appeal. She also seeks an order directing that the children, BGO and CFO, be enrolled in their former schools, namely Hill School, Kakamega and PCEA Makupa, Mombasa, respectively.
3. The application is supported by the Applicant’s affidavit sworn on 11th May 2026. The Applicant is the mother of the two children.
4. The application is opposed through the replying affidavit sworn by No. 93443 Sergeant Irene Oduor, an investigator attached to the Directorate of Criminal Investigations, Anti-Human Trafficking and Child Protection Unit.
5. The Court has considered the application, the affidavits, the written submissions and the annexures placed before it.
6. The background to the application is that the Applicant had filed an application before the Children’s Court dated 10th December 2025. In that application, she sought the release of the children and other related reliefs concerning their placement and education.
7. The Children’s Court considered that application and, by its ruling delivered on 26th March 2026, dismissed it. The court consequently declined to grant the affirmative orders sought by the Applicant.
8. The Applicant has appealed against that decision. Pending determination of the appeal, she now seeks an order of stay under Order 42 rule 6 of the Civil Procedure Rules.
9. The principal issue for determination is whether the ruling delivered on 26th March 2026 is capable of being stayed.
10. Order 42 rule 6 contemplates a stay of execution of a decree or order. The jurisdiction is intended to preserve the subject matter of an appeal by preventing the enforcement or implementation of a positive and executable order pending determination of the appeal.
11. A distinction must therefore be drawn between a positive order, which directs a party to do or refrain from doing something, and a negative order, which merely dismisses an application or suit.
12. Where a court has dismissed an application, there is ordinarily nothing arising from that dismissal capable of execution. The dismissal does not command a party to perform any act. It merely leaves the parties in the position in which they stood before the unsuccessful application was made.
13. In the present case, the Children’s Court did not, in the ruling of 26th March 2026, grant an affirmative remedy against the Applicant. It dismissed her application dated 10th December 2025.
14. The order appealed against is therefore a negative order. There is nothing arising from it that is capable of being stayed under Order 42 rule 6.
15. An order staying the dismissal would not revive the application dated 10th December 2025, nor would it result in the children being released or enrolled in the schools specified by the Applicant. A stay of a dismissal cannot operate as an order granting the relief that was declined by the trial court.
16. The Applicant’s second substantive prayer confirms the true nature of the application. She asks this Court to direct that the children be enrolled in specified schools pending determination of the appeal.
17. That prayer is not incidental to a stay of execution. It seeks a new and affirmative order compelling a change in the children’s existing placement and educational arrangements.
18. The relief sought is, in substance, a mandatory injunction. It would require the Respondents and the agencies presently responsible for the children to take positive steps and alter the prevailing position before the appeal is heard.
19. The Applicant cannot obtain through an application for stay the substantive relief that the Children’s Court declined to grant. To do so would effectively allow the appeal at an interlocutory stage without hearing and determining it on its merits.
20. The designation given to an application is not decisive. The Court must examine the substance and practical effect of the orders sought. Although presented as an application for stay of execution, the application seeks to reverse the effect of the ruling appealed from and substitute it with affirmative orders in favour of the Applicant.
21. That relief does not fall within the scope of Order 42 rule 6. A stay preserves an existing position against execution. It does not create a new state of affairs or confer upon an unsuccessful litigant the relief that was refused by the trial court.
22. The proper procedure for challenging the dismissal of the application dated 10th December 2025 is through the appeal already filed. It is in that appeal that the Court will consider whether the Children’s Court erred in law or fact, whether it exceeded its jurisdiction, and whether the orders sought by the Applicant ought to have been granted.
23. Those questions should not be determined indirectly through an interlocutory application framed as one for stay.
24. The Court is also mindful that the matter concerns children and that their best interests are of paramount importance under Article 53(2) of the Constitution. That principle, however, does not confer jurisdiction upon the Court to stay an order that is incapable of execution or to grant a mandatory injunction under the guise of a stay.
25. The welfare, placement, education and protection of the children remain substantive matters for determination in the appeal. Given their nature, the appeal should be heard expeditiously.
26. The Respondents have maintained that the children are presently enrolled in secure educational institutions and are receiving protection and rehabilitative support. They have also raised concerns that disclosure of the children’s location or return to their former schools may compromise their safety and the pending criminal proceedings.
27. Those competing assertions cannot properly be resolved through an application seeking stay of a negative order. They require consideration on the basis of the complete record of appeal and the merits of the appeal.
28. In the result, the Notice of Motion dated 11th May 2026 is without merit and is dismissed.
29. As the dispute concerns children, each party shall bear its own costs of the application.
30. The Appellant shall file and serve the record of appeal, if not already filed, within twenty-one days from the date of this ruling.
31. The appeal shall thereafter be mentioned on a priority basis for directions and allocation of an expedited hearing date.