1. The applicant herein has filed a Notice of Motion dated 24 th March 2026 seeking for orders that:
(1) Spent
(2) THAT leave be granted to the applicant to file an appeal out of time against the Judgment delivered on 7 th day of October 2025 and Ruling delivered on 24 th March 2026.
(3) THAT the Memorandum of appeal filed herein be deemed as duly filed upon payment of the requisite court fees.
4. THAT there be a stay of execution of the judgment and decree delivered on 7 th October 2025 and all consequential orders pending the hearing and determination of the appeal.
(5) THAT costs of this application be in the cause.
2. The application is based on grounds stated on the face of the application and supported by the affidavit of the applicant sworn on 24 th April 2026. The grounds thereof are that the trial magistrate in Hola Senior Principal Magistrate`s court in Children Civil Case No. E001 of 2023 delivered a ruling on the 24 th March 2025 dismissing the Applicant`s application for review of the judgment delivered on 7 th October 2025 and upheld the maintenance order of Ksh.10,000/= and declined to grant clear access orders. That the Applicant was aggrieved by the said ruling and has filed an appeal before this honourable court. That his application for review was seeking for review of maintenance from Kah.10,000/= to Ksh.5,000/= due to his changed financial circumstances.
3. It was the averment of the applicant that the intended appeal is meritorious with high chances of success. He sought for an order for stay of execution of the judgment pending hearing and determination of the intended appeal. That he was also seeking for reasonable access to the minor. That he is currently unable to sustainably meet the maintenance of the sum ordered without undue hardship. That unless stay is granted he will suffer substantial loss, financial strain and great prejudice and the appeal will be rendered nugatory. That the application is made in good faith and without unreasonable delay.
4. The application was opposed by the respondent vide her replying affidavit sworn on 13 th May 2026 in which she deposes that the applicant has not shown the kind of loss he is going to suffer in maintaining his own biological child. That the application is filed out of spite and not in the interests of the minor. That the Applicant is a man of means and is capable of providing the stipulated amount and even more. That the reasons given for the delay are flimsy and unsubstantiated. That the interests of the minor is paramount and that the amount ordered is fair, just and reasonable. That the application is filed as an afterthought and is unsubstantiated. That the applicant has not paid the amount ordered for the month of May 2026 and his hands are full of blemish. That the application ought to be dismissed.
5. The application was disposed of by way of written submissions of the counsel for the Applicant. The respondent did not file submissions.
6. The applicant submitted that the ruling dismissing the review application was delivered on 24 th March 2026 and the present application filed without delay. That the delay has been sufficiently explained since the applicant first pursued review proceedings before the subordinate court. He relied on the case of Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others (2014) eKLR and the case of Leo Sila Mutiso v Hellen Wangari Mwangi (1999) 2 EA 231 where in the latter case the Court of Appeal set the factors to be considered in an application for leave to file appeal out of time to include the length of delay, reason for the delay, chances of the success of the appeal and prejudice to the respondent.
7. The applicant submitted that the application has met the threshold for grant of stay of execution as provided under Order 42 Rule 6(2) of the Civil Procedure Rules. That he has shown that he will suffer substantial loss as he is financially strained. However, that he has demonstrated good faith by continuing to make payments despite the financial strain. That unless the orders are granted, he will continue to suffer financial strain. That execution proceedings will occasion him irreparable prejudice.
8. It was submitted that the application was filed without unreasonable delay and any delay has been sufficiently explained.
9. It was submitted that the applicant has expressed willingness to comply with any reasonable conditions including payment of reasonable interim maintenance pending appeal which is a demonstration of good faith on his part.
10. The applicant submitted that the appeal is not intended to evade parental responsibility but rather to seek fairness, sustainability and meaningful parental participation as he has a young family of 5 children and he is also taking care of his ailing mother.
Determination
11. I have considered the grounds in support of the application, the grounds in opposition thereto and the submissions by the applicant.
12. It is in the first place to be noted that the trial court on the 7 th October 2025 delivered a judgment in which it ordered, inter alia, for the applicant to pay maintenance money for his minor child to the sum of Ksh.10,000/=. The applicant instead of filing an appeal against the judgment opted to file a review application. The same was heard and a ruling delivered on 24 th March 2926 dismissing the application. The applicant filed the instant appeal that is pending before this court. The appeal, according to the Memorandum of appeal, is basically challenging the ruling of the trial magistrate dismissing the review application and seeks to have the prayers sought in the application be allowed.
13. Accompanying the memorandum of appeal was the application dated 24 th April 2026 in which the applicant is seeking for two prayers:
(1) Leave to file appeal out of time against the judgment delivered on 7 th October 2025 and the ruling delivered on 24 th March 2026.
(2) Stay of execution of the judgment and the ruling.
14. In my view, the prayer seeking leave to file an appeal out of time against the judgment of 7 th October 2025 is misconceived. The applicant having opted to file a review application instead of an appeal cannot revert to filing an appeal against the judgment after losing in the review application. He should only seek leave to file appeal out of time on the dismissal of the review application. The prayer seeking to file appeal out of time against the judgment of 7 th October 2025 is dismissed.
15. That leaves the prayer seeking leave of the court to file appeal out of time against the ruling delivered on 24 th March 2026.
16. I have noted from the CTS that the application dated 24 th April 2026 was filed on 28 th April 2026. This was 5 days after the statutory period of appeal had lapsed on 23/4/2026. Though the applicant has not explained the reason for the delay of 5 days, the delay of that period cannot be said to be inordinate. The respondent will not suffer any prejudice if leave to file appeal out of time is granted. She can be compensated by way of costs. Leave to file appeal out of time against the ruling of 24 th March 2026 is thereby granted.
17. The other limb of the application is stay of execution pending the hearing of the appeal. An applicant for stay of execution pending appeal is required to satisfy the conditions set under Order 42 Rule (6) (2) of the Civil procedure rules. These are:
1. The application was brought without unreasonable delay.
2. The Applicant will suffer substantial loss unless the orders sought are granted.
3. The Applicant has given security for due performance of the decree as may be binding on him .
18. Whereas the application was brought without unreasonable delay, the applicant has not shown the prejudice or loss that he will suffer by continuing to pay the maintenance money in the sum of Ksh.10,000/= pending the hearing of the appeal. Mere statements that he is financially strained are not sufficient. The applicant is not challenging the order to pay maintenance money but he is only challenging the amount to be paid. There is no basis at this stage for the court to vary the order issued by the trial court. That is an issue to be considered during the appeal when all the facts have been placed before the court.
19. In matters involving children, the court is required to consider the best interests of the child at every stage of the trial. It is not in the best interests of the child in this matter for this court to make any adverse orders before hearing and determination of the appeal.
20. In view of the foregoing the court makes the following orders:
(1) That leave to file appeal out of time against the ruling of 24 th March 2026 is hereby granted.
(2) That the memorandum of appeal filed herein be and is deemed as duly filed upon payment of the requisite court fees.
(3) That leave to file appeal out of time against the judgment of 7 th October 2025 is rejected.
(4) That stay of execution of the judgment of 7 th October 2025 and the subsequent decree and all consequential orders thereto pending the hearing and determination of the appeal is rejected.
(5) The Respondent to have the costs of the application.
Orders accordingly.
In the presence of:
Simiyu HB for Kiamukama Appellant/Applicant
No appearance for Respondent
Court Assistant - Dennis
(1) Spent
(2) THAT leave be granted to the applicant to file an appeal out of time against the Judgment delivered on 7 th day of October 2025 and Ruling delivered on 24 th March 2026.
(3) THAT the Memorandum of appeal filed herein be deemed as duly filed upon payment of the requisite court fees.
4. THAT there be a stay of execution of the judgment and decree delivered on 7 th October 2025 and all consequential orders pending the hearing and determination of the appeal.
(5) THAT costs of this application be in the cause.
2. The application is based on grounds stated on the face of the application and supported by the affidavit of the applicant sworn on 24 th April 2026. The grounds thereof are that the trial magistrate in Hola Senior Principal Magistrate`s court in Children Civil Case No. E001 of 2023 delivered a ruling on the 24 th March 2025 dismissing the Applicant`s application for review of the judgment delivered on 7 th October 2025 and upheld the maintenance order of Ksh.10,000/= and declined to grant clear access orders. That the Applicant was aggrieved by the said ruling and has filed an appeal before this honourable court. That his application for review was seeking for review of maintenance from Kah.10,000/= to Ksh.5,000/= due to his changed financial circumstances.
3. It was the averment of the applicant that the intended appeal is meritorious with high chances of success. He sought for an order for stay of execution of the judgment pending hearing and determination of the intended appeal. That he was also seeking for reasonable access to the minor. That he is currently unable to sustainably meet the maintenance of the sum ordered without undue hardship. That unless stay is granted he will suffer substantial loss, financial strain and great prejudice and the appeal will be rendered nugatory. That the application is made in good faith and without unreasonable delay.
4. The application was opposed by the respondent vide her replying affidavit sworn on 13 th May 2026 in which she deposes that the applicant has not shown the kind of loss he is going to suffer in maintaining his own biological child. That the application is filed out of spite and not in the interests of the minor. That the Applicant is a man of means and is capable of providing the stipulated amount and even more. That the reasons given for the delay are flimsy and unsubstantiated. That the interests of the minor is paramount and that the amount ordered is fair, just and reasonable. That the application is filed as an afterthought and is unsubstantiated. That the applicant has not paid the amount ordered for the month of May 2026 and his hands are full of blemish. That the application ought to be dismissed.
5. The application was disposed of by way of written submissions of the counsel for the Applicant. The respondent did not file submissions.
6. The applicant submitted that the ruling dismissing the review application was delivered on 24 th March 2026 and the present application filed without delay. That the delay has been sufficiently explained since the applicant first pursued review proceedings before the subordinate court. He relied on the case of Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others (2014) eKLR and the case of Leo Sila Mutiso v Hellen Wangari Mwangi (1999) 2 EA 231 where in the latter case the Court of Appeal set the factors to be considered in an application for leave to file appeal out of time to include the length of delay, reason for the delay, chances of the success of the appeal and prejudice to the respondent.
7. The applicant submitted that the application has met the threshold for grant of stay of execution as provided under Order 42 Rule 6(2) of the Civil Procedure Rules. That he has shown that he will suffer substantial loss as he is financially strained. However, that he has demonstrated good faith by continuing to make payments despite the financial strain. That unless the orders are granted, he will continue to suffer financial strain. That execution proceedings will occasion him irreparable prejudice.
8. It was submitted that the application was filed without unreasonable delay and any delay has been sufficiently explained.
9. It was submitted that the applicant has expressed willingness to comply with any reasonable conditions including payment of reasonable interim maintenance pending appeal which is a demonstration of good faith on his part.
10. The applicant submitted that the appeal is not intended to evade parental responsibility but rather to seek fairness, sustainability and meaningful parental participation as he has a young family of 5 children and he is also taking care of his ailing mother.
Determination
11. I have considered the grounds in support of the application, the grounds in opposition thereto and the submissions by the applicant.
12. It is in the first place to be noted that the trial court on the 7 th October 2025 delivered a judgment in which it ordered, inter alia, for the applicant to pay maintenance money for his minor child to the sum of Ksh.10,000/=. The applicant instead of filing an appeal against the judgment opted to file a review application. The same was heard and a ruling delivered on 24 th March 2926 dismissing the application. The applicant filed the instant appeal that is pending before this court. The appeal, according to the Memorandum of appeal, is basically challenging the ruling of the trial magistrate dismissing the review application and seeks to have the prayers sought in the application be allowed.
13. Accompanying the memorandum of appeal was the application dated 24 th April 2026 in which the applicant is seeking for two prayers:
(1) Leave to file appeal out of time against the judgment delivered on 7 th October 2025 and the ruling delivered on 24 th March 2026.
(2) Stay of execution of the judgment and the ruling.
14. In my view, the prayer seeking leave to file an appeal out of time against the judgment of 7 th October 2025 is misconceived. The applicant having opted to file a review application instead of an appeal cannot revert to filing an appeal against the judgment after losing in the review application. He should only seek leave to file appeal out of time on the dismissal of the review application. The prayer seeking to file appeal out of time against the judgment of 7 th October 2025 is dismissed.
15. That leaves the prayer seeking leave of the court to file appeal out of time against the ruling delivered on 24 th March 2026.
16. I have noted from the CTS that the application dated 24 th April 2026 was filed on 28 th April 2026. This was 5 days after the statutory period of appeal had lapsed on 23/4/2026. Though the applicant has not explained the reason for the delay of 5 days, the delay of that period cannot be said to be inordinate. The respondent will not suffer any prejudice if leave to file appeal out of time is granted. She can be compensated by way of costs. Leave to file appeal out of time against the ruling of 24 th March 2026 is thereby granted.
17. The other limb of the application is stay of execution pending the hearing of the appeal. An applicant for stay of execution pending appeal is required to satisfy the conditions set under Order 42 Rule (6) (2) of the Civil procedure rules. These are:
1. The application was brought without unreasonable delay.
2. The Applicant will suffer substantial loss unless the orders sought are granted.
3. The Applicant has given security for due performance of the decree as may be binding on him .
18. Whereas the application was brought without unreasonable delay, the applicant has not shown the prejudice or loss that he will suffer by continuing to pay the maintenance money in the sum of Ksh.10,000/= pending the hearing of the appeal. Mere statements that he is financially strained are not sufficient. The applicant is not challenging the order to pay maintenance money but he is only challenging the amount to be paid. There is no basis at this stage for the court to vary the order issued by the trial court. That is an issue to be considered during the appeal when all the facts have been placed before the court.
19. In matters involving children, the court is required to consider the best interests of the child at every stage of the trial. It is not in the best interests of the child in this matter for this court to make any adverse orders before hearing and determination of the appeal.
20. In view of the foregoing the court makes the following orders:
(1) That leave to file appeal out of time against the ruling of 24 th March 2026 is hereby granted.
(2) That the memorandum of appeal filed herein be and is deemed as duly filed upon payment of the requisite court fees.
(3) That leave to file appeal out of time against the judgment of 7 th October 2025 is rejected.
(4) That stay of execution of the judgment of 7 th October 2025 and the subsequent decree and all consequential orders thereto pending the hearing and determination of the appeal is rejected.
(5) The Respondent to have the costs of the application.
Orders accordingly.
In the presence of:
Simiyu HB for Kiamukama Appellant/Applicant
No appearance for Respondent
Court Assistant - Dennis