1. I n Halsbury’s Law of England, 4 th Edition. Vol. 37 page 330 & 332, the passage records 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. In the Notice of Motion dated 16 th October, 2025, the applicant is seeking one prayer now that prayer 1 and 3 are spent;
a. That this honourable court does order stay of the proceedings in Milimani Magistrates Court Children Case Number 1402 of 2014 pending the hearing and determination of this appeal challenging the Ruling delivered on the 12 th September 2025 by Hon. A.W Macharia (Dr).
b. That costs of this application be provided for.
3. The grounds of the application are set out on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. That the trial magistrate failed to analyse or give consideration to the evidence by the appellant and thereby arriving at a decision which is erroneous.
b. That the trial magistrate erred in holding that the appellant is the biological father to the minor at interlocutory stage without any evidence of proof on paternity thereby denying the appellant right to fair hearing.
c. That the trial failed to consider that the plaintiff’s husband Leonard Kagua was in loco parentis with the minor out of a long cohabitation and marriage to the minor’s mother.
d. That the trial magistrate had erred in law in holding that the defence and counter claim had comprehensively addressed the issue of parental responsibility of Leonard Kagua over the minor and abandoned the prayers sought in the application.
4. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The appellant has failed to comply with court Orders and particularly an order to undertake DNA. The court had to draw an inference as to the paternity of the minor.
b. The appellant has been filing numerus applications to delay the matter and obtained orders over the years and the court directed no other application should be filed until final determination of the matter.
c. That the appellant is evading parental responsibilities by introducing unknown party namely Leonard Kagua into the proceedings and has failed to discharge his burden of proof that indeed Leonard Kagua is married to the Respondent.
Analysis and Determination:
5. 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 .”
6. These principles were enunciated in Butt Vs Rent Restriction Tribunal [1979] the Court of Appeal 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.
7. 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.
8. Back to the case before me, the applicant is supposed to prove the three elements as designed under Order 42 Rule 6. These are substantial loss, application made without undue delay and security for due performance of such a decree. The applicant herein as not submitted on any limb, instead thereof, the applicant has reiterated the grounds of appeal in the supporting affidavit.
Undue Delay:
9. I note that the impugned ruling was delivered on the 12 th September 2025 and the application for stay was filed on 16 th October, 2025. Therefore, the application herein was made without delay.
Substantial Loss:
10. I note that the applicant has not submitted the loss if any he would suffer if stay is not granted. I have perused the supporting affidavit and I do not trace any submission any loss whether minimum or substantial that cannot be compensated.
Security for due performance of the Decree:e
11. In Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] eKLR, it was stated that: “Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.” I know in children matters, there is no security contemplated under Order 42 rule 6. However, in expansive application of the principle to children matters, I must say that the best interest of the children should always remain the centre piece paramount, even as the parents try to teach each other, lifetime lessons under the veil of children. Put it differently, the appellant ought to continue with his responsibilities as a parent even as we await the outcome of the Appeal. The reason is that children’s need cannot be stayed.
12. Finally, I am hesitant to consider more in this application because the grounds therein are identical to the grounds of appeal and so the appeal might be compromised at this stage.
13. In disposal, I make the following Orders;
a. The application lacks merit and the same is dismissed.
b. Appellant to prepare a Record of Appeal and serve within 30 days from today.
c. The Respondent to file and serve a response within 14 days after service.
d. Mention on 16/9/2026 before the Deputy Registrar for taking a hearing date.
Delivered virtually this 29 th July, 2026.
R.K. Ondieki,
Judge.
In the presence of:
Christine- C/A
Mr for the Respondent
Mr for the Appellant.
1 | Page
2. In the Notice of Motion dated 16 th October, 2025, the applicant is seeking one prayer now that prayer 1 and 3 are spent;
a. That this honourable court does order stay of the proceedings in Milimani Magistrates Court Children Case Number 1402 of 2014 pending the hearing and determination of this appeal challenging the Ruling delivered on the 12 th September 2025 by Hon. A.W Macharia (Dr).
b. That costs of this application be provided for.
3. The grounds of the application are set out on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. That the trial magistrate failed to analyse or give consideration to the evidence by the appellant and thereby arriving at a decision which is erroneous.
b. That the trial magistrate erred in holding that the appellant is the biological father to the minor at interlocutory stage without any evidence of proof on paternity thereby denying the appellant right to fair hearing.
c. That the trial failed to consider that the plaintiff’s husband Leonard Kagua was in loco parentis with the minor out of a long cohabitation and marriage to the minor’s mother.
d. That the trial magistrate had erred in law in holding that the defence and counter claim had comprehensively addressed the issue of parental responsibility of Leonard Kagua over the minor and abandoned the prayers sought in the application.
4. The Respondent filed a replying affidavit and hereunder are the grounds of opposition;
a. The appellant has failed to comply with court Orders and particularly an order to undertake DNA. The court had to draw an inference as to the paternity of the minor.
b. The appellant has been filing numerus applications to delay the matter and obtained orders over the years and the court directed no other application should be filed until final determination of the matter.
c. That the appellant is evading parental responsibilities by introducing unknown party namely Leonard Kagua into the proceedings and has failed to discharge his burden of proof that indeed Leonard Kagua is married to the Respondent.
Analysis and Determination:
5. 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 .”
6. These principles were enunciated in Butt Vs Rent Restriction Tribunal [1979] the Court of Appeal 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.
7. 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.
8. Back to the case before me, the applicant is supposed to prove the three elements as designed under Order 42 Rule 6. These are substantial loss, application made without undue delay and security for due performance of such a decree. The applicant herein as not submitted on any limb, instead thereof, the applicant has reiterated the grounds of appeal in the supporting affidavit.
Undue Delay:
9. I note that the impugned ruling was delivered on the 12 th September 2025 and the application for stay was filed on 16 th October, 2025. Therefore, the application herein was made without delay.
Substantial Loss:
10. I note that the applicant has not submitted the loss if any he would suffer if stay is not granted. I have perused the supporting affidavit and I do not trace any submission any loss whether minimum or substantial that cannot be compensated.
Security for due performance of the Decree:e
11. In Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] eKLR, it was stated that: “Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.” I know in children matters, there is no security contemplated under Order 42 rule 6. However, in expansive application of the principle to children matters, I must say that the best interest of the children should always remain the centre piece paramount, even as the parents try to teach each other, lifetime lessons under the veil of children. Put it differently, the appellant ought to continue with his responsibilities as a parent even as we await the outcome of the Appeal. The reason is that children’s need cannot be stayed.
12. Finally, I am hesitant to consider more in this application because the grounds therein are identical to the grounds of appeal and so the appeal might be compromised at this stage.
13. In disposal, I make the following Orders;
a. The application lacks merit and the same is dismissed.
b. Appellant to prepare a Record of Appeal and serve within 30 days from today.
c. The Respondent to file and serve a response within 14 days after service.
d. Mention on 16/9/2026 before the Deputy Registrar for taking a hearing date.
Delivered virtually this 29 th July, 2026.
R.K. Ondieki,
Judge.
In the presence of:
Christine- C/A
Mr for the Respondent
Mr for the Appellant.
1 | Page