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1. The appellant/ applicant filed application dated 3.9.25 seeking :
a. Spent .
b . That the Orders issued on the 28th day of July 2025 by the Chief Magistrate Court at Kisii Child case NO. 607 OF 2021 be set aside and all consequential orders thereto be vacated.
c. That the status quo of the orders issued on the 23rd day of January 2024 be maintained.
d. That this Honourable Court orders the Defendant to pay off the pending arrears as per the aforementioned Order.
e. . That the costs of this application to be provided for.
2. The application is based on the following on the annexed affidavit of SHEILA NYABOKE MOSETI and the grounds that;
i. That the Learned Magistrate erred in law and in fact by purporting to adopt a consent emanating from a failed mediation process.
ii. That the Trial Magistrate erred in law and fact by entering a judgement and issuing orders without hearing the parties herein.
iii. That the Trial Magistrate erred in law by not taking into consideration of the evidence on record.
iv. That the welfare of the issues affected herein will be greatly affected by the orders issued by the trial Magistrate on the 28th day of July 2025.
v. That the Application is therefore necessary to preserve the Applicants interests pending the hearing and determination of the Application herein and the appeal.
vi. That the instant Application has been filed timeously without any unreasonable delay, in the interest of justice and fairness.
vii. That no prejudice will be suffered by the Respondent/Defendant in any way if the orders sought herein are granted.
3. The applicant deponed that ; That the respondent herein is her estranged husband whom we are blessed with two Children( the applicants) .Also that they had irreconcilable difference leading to their separation in the year 2021. Further that the applicant has been staying with the children without any support from the respondent . The applicant subsequently filed children case number 607 of 2021 in Kisii Chief Magistrates Court . She stated that that on the 22nd day of June 2021 the court issued order on an application dated the 17th June 2021 directing the defendant to be providing Kshs.10,000 per month pending the hearing and determination of the application Orders which the Defendant never adhered to (as per SK-1 copy of the Order) and that on the 31th day of January 2022 the Magistrate Court at Kisii gave an order directing the Defendant to cater for school fees ,shelter and education which orders the defendant has never obeyed to date (SK-1 )copy of the Order) and the matter was also referred to court annexed mediation. She said they never agreed on any of the issues during the mediation and as per mediator''s report dated the 10th day of July 2025. (as Copy of mediation report -SK-5 )and the file was returned to court and the matter was scheduled for mention for directions on the 23rd day of July 2025 and that on the said date, the trial magistrate without giving them a fair opportunity to be heard went ahead and issued orders that aggrieved her ( copy of the order SK-6 ) . She thereafter filed the appeal herein which is pending in this court. She contended that the orders sought are granted our children will suffer substantial loss and irreparable damages and that the application is therefore necessary to preserve our rights as Appellants pending the hearing and determination of the appeal . Also that the appeal was filed in time in the interest of Justice and fairness . That no prejudice will be suffered by the Respondents/Defendants in any way if the orders sought herein are granted.
4. The respondent filed a replying affidavit dated 17.9.25 and admitted that he lived with the applicant as husband and wife and that6 sometime in the 2001 discovered that she had filed CHILD CASE NO. E607 OF 2021 at the Kisii Law Courts and she told him that she intended to withdraw the matter and asked him to that I accompany her on the next court date. On 31`.7.2022 they went to court together and they entered into a consent which was adopted as an order of the court despite is ignorance of the implications of the said consent. On 23rd January 2024, the Honourable Court set aside the consent order dated 31st July 2022. Also that he is a man of straw earning Kshs. 8000/= only but he has despite earning demonstrated a commitment by settling the rent arrears and undertaking to pay Kshs. 200,000/=. released a sum of Kshs. 50,000/= to the Plaintiff in the interest of the children. The said funds were disbursed on 13th August 2024 and 5th September 2024, respectively. Consequently, the orders committing me to civil jail were set aside, having paid a sum of Kshs. 200,000/=. He attached a copy of his Mpesa statement (Copy of Mpesa statement -COO-1" ) . He deponed that the matter was referred to Court-Annexed Mediation but no agreement was reached . On 23rd July 2025, the matter was mentioned in court and the Honourable Magistrate noted that mediation had failed and by consent he and the applicant agreed that he would pay for the children''s school fees, stationery, uniforms, and medication, whereas the Plaintiff would cater for the remaining needs, including food, shelter, and housing. Also that he would have visitation rights during weekends and holidays as per the court order marked "CO 2" .)
5. He said he has diligently discharge my parental responsibilities by providing for the minors herein, as ordered by the Honourable Court and that he is advised y his counsel on record that time of execution begins to run from the date of judgment or order in respect of the decretal sum. Therefore, time began to run from 28th July,2025 when the Honourable court issued the orders . and that a court of law cannot rewrite a contract between parties unless coercion, fraud, or undue influence is pleaded and proved. The application does not meet the threshold for setting aside the consent orders. He has referred me to this case which emphasizes the same. Further that the applicant Applicant has not exhausted all available mechanisms of setting aside or varying the consent before filing the appeal. He termed the filing the instant application as a fishing expedition. He sought dismissal of the application .
6. The applicant filed what she described as a ‘ ’reply to replying affidavit’’ dated 18.9.25 she denied that her application is misconceived and an abuse of court process, saying it raises triable issues and facts. She admitted that the respondent married her with a child from a previous relationship and he accepted the minor acquiring his in his birth certificate ( see copy of Birth certificate SNM -1)She termed the denial by the respondent an afterthought meant to evade parental responsibility. She said that her application is the best interest of the children. Applicant reiterated that no consent was reached during mediation.
7. I have carefully considered the application, the reply, further affidavit and and the submissions
8. On whether the orders dated 28.7.25 should be set aside, Pw1 argued that the same should be set aside as they are based on an alleged consent which parties did not reach . The respondent argued that the court lacks jurisdiction to set aside the said orders as they are based on a consent between the parties which can only be set aside on the same grounds as those of setting aside a contract . Also that the pray for setting aside is one of the prayers in the appeal . The parties herein invited this court to determine issues raised in the appeal but this court is unable to honour that invitation . I find that setting aside the said orders at this stage would amount to determining the appeal as it is the main ground of the appeal herein. I will say on more on this ground as it may prejudice the out come of the appeal .
9. On whether the status quo obtaining as at 23.1.24 should be maintained pending appeal , the applicant’s position is that on 23.1.24 the court directed respondent to clear the outstanding school fees and related expenses , rent and upkeep arrears accrued up to 31.1.2022 and to pay Kshs. 5000/= monthly upkeep for the 2 nd minor. The respondent says that he has paid Kshs 200,000/= towards the arrears and that he is struggling to clear the balance at once since his current salary is Kshs 8000/= . Also that after the consent was adopted then the issue of arrears does not arise. These are arguments which ought to be raised during the hearing of the appeal . I have also seen a copy respondent’s pay slip for the December 2023 on record. The same looks like it was down loaded from the system and it is not certified . It also indicates that he took a loan but it is not clear when the same was taken . It is not disputed that the applicant has moved this court pending appeal and she has a right to be heard in the appeal . This is a children’s matter and it is trite law that children must continue to be maintained pending appeal . The applicant disputed the ‘’alleged consent ‘’ in the appeal and this is an arguable issue. Article 53 (2) of the Constitution enjoins this court to consider the best interest of a child in all children matters . The best interest of the children herein demands that I uphold on maintenance of the children as per the orders dated 23.1.24 pending hearing and determination of the appeal herein . I proceed to allow status quo in terms of prayer 2.
10. On whether the respondent should be ordered to clear the arears. I have already made orders of status quo herein above . Court orders are not issues in vain . Any arrears pending arrears should be cleared before hearing of this appeal otherwise the respondent will not have audience in this appeal .
11. The Kisii County Children Coordinator to file his report on the best interest of the children herein .
12. The issue of access was not raised I will deal with it Suo moto in the best interest of the Children . The respondent is granted access to the children on weekends and school holidays on prior arrangement with the applicant through office of the Kisii children coordinator pending hearing and determination of the appeal .
13. On the issue of costs this being a family matter each party will bear his own costs .
14. The application is allowed on the foregoing terms.
15. Mention on15.12.25 for directions on the appeal .
T.A ODERA
JUDGE
21.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 21 ST DAY OF OCTOBER 2025 IN THE PRESENCE OF MR WESONGA FOR THE APPLICANT , MR OCHOKI FOR THE RESPONDENT & COURT ASSISTANT MR KIPCHIRCHIR
Ochoki : We are not sure of the amount owing so far. We seek to be supplied with a tabulation on the same. ROA has also been served upon us. We seek a mention before the DR for compliance with the arrears .
Wesonga : We will work on the tabulation and serve it on the appeal . We can mention before the DR. The appeal wis ready .
Ochoki : I have not looked at the ROA . I seek time to look at time
Order : Mention on 1.12.25 before the Deputy registrar for compliance and filing of tabulation on arrears . Mention on 15.12.25 before this court. .
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1. The appellant/ applicant filed application dated 3.9.25 seeking :
a. Spent .
b . That the Orders issued on the 28th day of July 2025 by the Chief Magistrate Court at Kisii Child case NO. 607 OF 2021 be set aside and all consequential orders thereto be vacated.
c. That the status quo of the orders issued on the 23rd day of January 2024 be maintained.
d. That this Honourable Court orders the Defendant to pay off the pending arrears as per the aforementioned Order.
e. . That the costs of this application to be provided for.
2. The application is based on the following on the annexed affidavit of SHEILA NYABOKE MOSETI and the grounds that;
i. That the Learned Magistrate erred in law and in fact by purporting to adopt a consent emanating from a failed mediation process.
ii. That the Trial Magistrate erred in law and fact by entering a judgement and issuing orders without hearing the parties herein.
iii. That the Trial Magistrate erred in law by not taking into consideration of the evidence on record.
iv. That the welfare of the issues affected herein will be greatly affected by the orders issued by the trial Magistrate on the 28th day of July 2025.
v. That the Application is therefore necessary to preserve the Applicants interests pending the hearing and determination of the Application herein and the appeal.
vi. That the instant Application has been filed timeously without any unreasonable delay, in the interest of justice and fairness.
vii. That no prejudice will be suffered by the Respondent/Defendant in any way if the orders sought herein are granted.
3. The applicant deponed that ; That the respondent herein is her estranged husband whom we are blessed with two Children( the applicants) .Also that they had irreconcilable difference leading to their separation in the year 2021. Further that the applicant has been staying with the children without any support from the respondent . The applicant subsequently filed children case number 607 of 2021 in Kisii Chief Magistrates Court . She stated that that on the 22nd day of June 2021 the court issued order on an application dated the 17th June 2021 directing the defendant to be providing Kshs.10,000 per month pending the hearing and determination of the application Orders which the Defendant never adhered to (as per SK-1 copy of the Order) and that on the 31th day of January 2022 the Magistrate Court at Kisii gave an order directing the Defendant to cater for school fees ,shelter and education which orders the defendant has never obeyed to date (SK-1 )copy of the Order) and the matter was also referred to court annexed mediation. She said they never agreed on any of the issues during the mediation and as per mediator''s report dated the 10th day of July 2025. (as Copy of mediation report -SK-5 )and the file was returned to court and the matter was scheduled for mention for directions on the 23rd day of July 2025 and that on the said date, the trial magistrate without giving them a fair opportunity to be heard went ahead and issued orders that aggrieved her ( copy of the order SK-6 ) . She thereafter filed the appeal herein which is pending in this court. She contended that the orders sought are granted our children will suffer substantial loss and irreparable damages and that the application is therefore necessary to preserve our rights as Appellants pending the hearing and determination of the appeal . Also that the appeal was filed in time in the interest of Justice and fairness . That no prejudice will be suffered by the Respondents/Defendants in any way if the orders sought herein are granted.
4. The respondent filed a replying affidavit dated 17.9.25 and admitted that he lived with the applicant as husband and wife and that6 sometime in the 2001 discovered that she had filed CHILD CASE NO. E607 OF 2021 at the Kisii Law Courts and she told him that she intended to withdraw the matter and asked him to that I accompany her on the next court date. On 31`.7.2022 they went to court together and they entered into a consent which was adopted as an order of the court despite is ignorance of the implications of the said consent. On 23rd January 2024, the Honourable Court set aside the consent order dated 31st July 2022. Also that he is a man of straw earning Kshs. 8000/= only but he has despite earning demonstrated a commitment by settling the rent arrears and undertaking to pay Kshs. 200,000/=. released a sum of Kshs. 50,000/= to the Plaintiff in the interest of the children. The said funds were disbursed on 13th August 2024 and 5th September 2024, respectively. Consequently, the orders committing me to civil jail were set aside, having paid a sum of Kshs. 200,000/=. He attached a copy of his Mpesa statement (Copy of Mpesa statement -COO-1" ) . He deponed that the matter was referred to Court-Annexed Mediation but no agreement was reached . On 23rd July 2025, the matter was mentioned in court and the Honourable Magistrate noted that mediation had failed and by consent he and the applicant agreed that he would pay for the children''s school fees, stationery, uniforms, and medication, whereas the Plaintiff would cater for the remaining needs, including food, shelter, and housing. Also that he would have visitation rights during weekends and holidays as per the court order marked "CO 2" .)
5. He said he has diligently discharge my parental responsibilities by providing for the minors herein, as ordered by the Honourable Court and that he is advised y his counsel on record that time of execution begins to run from the date of judgment or order in respect of the decretal sum. Therefore, time began to run from 28th July,2025 when the Honourable court issued the orders . and that a court of law cannot rewrite a contract between parties unless coercion, fraud, or undue influence is pleaded and proved. The application does not meet the threshold for setting aside the consent orders. He has referred me to this case which emphasizes the same. Further that the applicant Applicant has not exhausted all available mechanisms of setting aside or varying the consent before filing the appeal. He termed the filing the instant application as a fishing expedition. He sought dismissal of the application .
6. The applicant filed what she described as a ‘ ’reply to replying affidavit’’ dated 18.9.25 she denied that her application is misconceived and an abuse of court process, saying it raises triable issues and facts. She admitted that the respondent married her with a child from a previous relationship and he accepted the minor acquiring his in his birth certificate ( see copy of Birth certificate SNM -1)She termed the denial by the respondent an afterthought meant to evade parental responsibility. She said that her application is the best interest of the children. Applicant reiterated that no consent was reached during mediation.
7. I have carefully considered the application, the reply, further affidavit and and the submissions
8. On whether the orders dated 28.7.25 should be set aside, Pw1 argued that the same should be set aside as they are based on an alleged consent which parties did not reach . The respondent argued that the court lacks jurisdiction to set aside the said orders as they are based on a consent between the parties which can only be set aside on the same grounds as those of setting aside a contract . Also that the pray for setting aside is one of the prayers in the appeal . The parties herein invited this court to determine issues raised in the appeal but this court is unable to honour that invitation . I find that setting aside the said orders at this stage would amount to determining the appeal as it is the main ground of the appeal herein. I will say on more on this ground as it may prejudice the out come of the appeal .
9. On whether the status quo obtaining as at 23.1.24 should be maintained pending appeal , the applicant’s position is that on 23.1.24 the court directed respondent to clear the outstanding school fees and related expenses , rent and upkeep arrears accrued up to 31.1.2022 and to pay Kshs. 5000/= monthly upkeep for the 2 nd minor. The respondent says that he has paid Kshs 200,000/= towards the arrears and that he is struggling to clear the balance at once since his current salary is Kshs 8000/= . Also that after the consent was adopted then the issue of arrears does not arise. These are arguments which ought to be raised during the hearing of the appeal . I have also seen a copy respondent’s pay slip for the December 2023 on record. The same looks like it was down loaded from the system and it is not certified . It also indicates that he took a loan but it is not clear when the same was taken . It is not disputed that the applicant has moved this court pending appeal and she has a right to be heard in the appeal . This is a children’s matter and it is trite law that children must continue to be maintained pending appeal . The applicant disputed the ‘’alleged consent ‘’ in the appeal and this is an arguable issue. Article 53 (2) of the Constitution enjoins this court to consider the best interest of a child in all children matters . The best interest of the children herein demands that I uphold on maintenance of the children as per the orders dated 23.1.24 pending hearing and determination of the appeal herein . I proceed to allow status quo in terms of prayer 2.
10. On whether the respondent should be ordered to clear the arears. I have already made orders of status quo herein above . Court orders are not issues in vain . Any arrears pending arrears should be cleared before hearing of this appeal otherwise the respondent will not have audience in this appeal .
11. The Kisii County Children Coordinator to file his report on the best interest of the children herein .
12. The issue of access was not raised I will deal with it Suo moto in the best interest of the Children . The respondent is granted access to the children on weekends and school holidays on prior arrangement with the applicant through office of the Kisii children coordinator pending hearing and determination of the appeal .
13. On the issue of costs this being a family matter each party will bear his own costs .
14. The application is allowed on the foregoing terms.
15. Mention on15.12.25 for directions on the appeal .
T.A ODERA
JUDGE
21.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 21 ST DAY OF OCTOBER 2025 IN THE PRESENCE OF MR WESONGA FOR THE APPLICANT , MR OCHOKI FOR THE RESPONDENT & COURT ASSISTANT MR KIPCHIRCHIR
Ochoki : We are not sure of the amount owing so far. We seek to be supplied with a tabulation on the same. ROA has also been served upon us. We seek a mention before the DR for compliance with the arrears .
Wesonga : We will work on the tabulation and serve it on the appeal . We can mention before the DR. The appeal wis ready .
Ochoki : I have not looked at the ROA . I seek time to look at time
Order : Mention on 1.12.25 before the Deputy registrar for compliance and filing of tabulation on arrears . Mention on 15.12.25 before this court. .
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