1. Stay of execution is a discretionary relief that cuts into the heart of the proceedings, designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition, that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree.
2. Having said so, it is the duty of the court to always exercise its discretion with an act of balancing proportionality and equity, as the antidote against falling into pitfalls, when considering such applications. So that in the fullness of time, and when the law traces justice, it must prostrate fall before it’s feet and justice shall triumph.
3. I am not alone. The Court of Appeal has in many of its decisions set the tempo in children matters and I find this decision, apposite to the matter at hand. HKN Vs LNW [2024] KECA 437 (KLR) the Court of Appeal said “ We need not rehash the paramount consideration in any decision on a matter concerning children-the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly. It is not lost to us that whenever matters relating to children end up before courts, the parents are usually at loggerheads and sometimes using the children to settle their own personal scores. It is therefore incumbent upon the court to become the ultimate protector of the minors in the clouded environment where each parent purports to assert the best interests of the child. In doing so, the court is granted judicial discretion to make certain findings upon hearing the parties. Such are the findings of fact, peculiar to the circumstances of each case that we, as an appellate court and of second instance in this case should exercise restraint in interfering with.”
4. Consequently, courts must rise above personal vendetta between parents and focus on the best interest of the child. It must also be borne in mind, that a child welfare encompasses among other parameters; systems, policies, and practices dedicated to ensuring the physical, mental, and social well-being of a child.
The Appellant’s Case :
5. In the Notice of Motion dated 16th June 2026, the applicant is seeking prayers;
a. That this honourable be pleased to grant leave for the Applicant/Appellant to file this appeal out of time, against the Judgement of Hon. Diana Milimu(SRM) in Milimani Children Case No. E855/2025 delivered on 30th April, 2026.
b. That pending the hearing and determination of the application inter-partes this honourable court be pleased to grant a temporary stay of execution, implementation and or enforcement of the Judgement and Decree of Hon. Diana Milimu, Senior Resident Magistrate, delivered on 30th April 2026in Milimani Magistrates Court Children Case No. E855 of 2025 particularly the Orders granting actual physical custody, care and control of the minor to the Respondent.
c. That this honourable court be pleased to grant the Appellant/Applicant leave to file an appeal out of time and thereby enlarging the time for filing the appeal against the Judgement and Decree of the lower court.
d. That this honourable court do issue and Order allowing the present, memorandum of appeal and the entire appeal as filed albeit out of time to be deemed as properly filed upon payment of the requisite court fees, and give directions on how to expeditiously dispose this matter.
e. The costs of the appeal be in the cause.
f. That this honourable court be pleased to grant any other or further orders that it may deem fit and just in the best interests of the minor.
6. 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. The judgement delivered granted actual physical custody, care and control of the minor to the Respondent and limited the Appellant’s access to alternate weekends.
b. The learned Magistrate failed to apply the best interest of the child principle and in respect to child of tender years without sufficient exceptional circumstances.
c. The appeal challenges failure to order counselling and therapeutic intervention despite evidence of emotional and psychological difficulty and making limited access and maintenance orders without sufficient reasons.
d. The delay was occasioned by the delay from the lower court typed proceedings and judgement and the decree to enable the applicant settle the record of appeal.
e. The matter concerns a minor and the best intertest of a minor require that the applicant is not shut out on account of procedural delay.
f. Circumstances have changed since delivery of judgement as the minors are complaining on inadequacy of accommodation as the Respondent live with his other wife and children and the space and environment is not conducive.
The Respondent’s Case:
7. The Respondent filed a replying affidavit and I opine to deal with five grounds of opposition;
a. The applicant has not demonstrated that the filing of Memorandum of Appeal was dependent upon the availability of typed proceedings.
b. The requirement is that Memorandum of Appeal may be filed independently of the Record of Appeal.
c. The application is an afterthought intended to principally suspend the implementation of the lawful custody orders issued by the trial court.
d. Custody was granted after Children’s Report and two Doctors ‘report. It was recommended that the actual physical custody, care and control of the minor be granted to the Respondent.
e. In the lower court, the Appellant did not produce any contrary report to those of Dr Njeru and Dr Jacob to cast a doubt on the professional recommendation on the best interest of the child.
Analysis and Determination:
8. 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.”
9. 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.
10. 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.
10. Curiously in this matter, there is no appeal filed and as such, this court is not obligated to consider the three-tier parameters set out under Order 42 Rule 6 of the Civil Procedure Rules. Mine is to determine whether or not, the delay was occasioned by the appellant’s indolence. Perusal of the reasons in the supporting affidavit show that the lower court typed proceedings were not availed in time. However, it must be borne in mind that appeal to the High Court is triggered by a mere filing of Memorandum of Appeal as one-of act. It does not require a Record of Appeal for one to file memorandum of appeal. This reasoning isn’t convincing.
11. Granting leave to appeal out of time, is discretional and has to be judiciously exercised. The general method of approach that I see, in such applications, is to grant leave to a party to appeal out of time, for its worth. I seek to rely on this English passage from the Judgment of Cotton LJ in Wilson Vs Church (No 2) (1879) 12 Ch D 454 at p 458, which I find so apposite to mention. He said; - “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
12. In disposal, the applicant is granted leave to appeal out of time and if need be, to file an application under Order 42 Rule 6 for the court to consider it.
Delivered virtually this 17th September, 2026. In the presence of Khamati for the Respondent and Ms Wachuna for the Applicant.
2. Having said so, it is the duty of the court to always exercise its discretion with an act of balancing proportionality and equity, as the antidote against falling into pitfalls, when considering such applications. So that in the fullness of time, and when the law traces justice, it must prostrate fall before it’s feet and justice shall triumph.
3. I am not alone. The Court of Appeal has in many of its decisions set the tempo in children matters and I find this decision, apposite to the matter at hand. HKN Vs LNW [2024] KECA 437 (KLR) the Court of Appeal said “ We need not rehash the paramount consideration in any decision on a matter concerning children-the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly. It is not lost to us that whenever matters relating to children end up before courts, the parents are usually at loggerheads and sometimes using the children to settle their own personal scores. It is therefore incumbent upon the court to become the ultimate protector of the minors in the clouded environment where each parent purports to assert the best interests of the child. In doing so, the court is granted judicial discretion to make certain findings upon hearing the parties. Such are the findings of fact, peculiar to the circumstances of each case that we, as an appellate court and of second instance in this case should exercise restraint in interfering with.”
4. Consequently, courts must rise above personal vendetta between parents and focus on the best interest of the child. It must also be borne in mind, that a child welfare encompasses among other parameters; systems, policies, and practices dedicated to ensuring the physical, mental, and social well-being of a child.
The Appellant’s Case :
5. In the Notice of Motion dated 16th June 2026, the applicant is seeking prayers;
a. That this honourable be pleased to grant leave for the Applicant/Appellant to file this appeal out of time, against the Judgement of Hon. Diana Milimu(SRM) in Milimani Children Case No. E855/2025 delivered on 30th April, 2026.
b. That pending the hearing and determination of the application inter-partes this honourable court be pleased to grant a temporary stay of execution, implementation and or enforcement of the Judgement and Decree of Hon. Diana Milimu, Senior Resident Magistrate, delivered on 30th April 2026in Milimani Magistrates Court Children Case No. E855 of 2025 particularly the Orders granting actual physical custody, care and control of the minor to the Respondent.
c. That this honourable court be pleased to grant the Appellant/Applicant leave to file an appeal out of time and thereby enlarging the time for filing the appeal against the Judgement and Decree of the lower court.
d. That this honourable court do issue and Order allowing the present, memorandum of appeal and the entire appeal as filed albeit out of time to be deemed as properly filed upon payment of the requisite court fees, and give directions on how to expeditiously dispose this matter.
e. The costs of the appeal be in the cause.
f. That this honourable court be pleased to grant any other or further orders that it may deem fit and just in the best interests of the minor.
6. 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. The judgement delivered granted actual physical custody, care and control of the minor to the Respondent and limited the Appellant’s access to alternate weekends.
b. The learned Magistrate failed to apply the best interest of the child principle and in respect to child of tender years without sufficient exceptional circumstances.
c. The appeal challenges failure to order counselling and therapeutic intervention despite evidence of emotional and psychological difficulty and making limited access and maintenance orders without sufficient reasons.
d. The delay was occasioned by the delay from the lower court typed proceedings and judgement and the decree to enable the applicant settle the record of appeal.
e. The matter concerns a minor and the best intertest of a minor require that the applicant is not shut out on account of procedural delay.
f. Circumstances have changed since delivery of judgement as the minors are complaining on inadequacy of accommodation as the Respondent live with his other wife and children and the space and environment is not conducive.
The Respondent’s Case:
7. The Respondent filed a replying affidavit and I opine to deal with five grounds of opposition;
a. The applicant has not demonstrated that the filing of Memorandum of Appeal was dependent upon the availability of typed proceedings.
b. The requirement is that Memorandum of Appeal may be filed independently of the Record of Appeal.
c. The application is an afterthought intended to principally suspend the implementation of the lawful custody orders issued by the trial court.
d. Custody was granted after Children’s Report and two Doctors ‘report. It was recommended that the actual physical custody, care and control of the minor be granted to the Respondent.
e. In the lower court, the Appellant did not produce any contrary report to those of Dr Njeru and Dr Jacob to cast a doubt on the professional recommendation on the best interest of the child.
Analysis and Determination:
8. 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.”
9. 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.
10. 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.
10. Curiously in this matter, there is no appeal filed and as such, this court is not obligated to consider the three-tier parameters set out under Order 42 Rule 6 of the Civil Procedure Rules. Mine is to determine whether or not, the delay was occasioned by the appellant’s indolence. Perusal of the reasons in the supporting affidavit show that the lower court typed proceedings were not availed in time. However, it must be borne in mind that appeal to the High Court is triggered by a mere filing of Memorandum of Appeal as one-of act. It does not require a Record of Appeal for one to file memorandum of appeal. This reasoning isn’t convincing.
11. Granting leave to appeal out of time, is discretional and has to be judiciously exercised. The general method of approach that I see, in such applications, is to grant leave to a party to appeal out of time, for its worth. I seek to rely on this English passage from the Judgment of Cotton LJ in Wilson Vs Church (No 2) (1879) 12 Ch D 454 at p 458, which I find so apposite to mention. He said; - “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
12. In disposal, the applicant is granted leave to appeal out of time and if need be, to file an application under Order 42 Rule 6 for the court to consider it.
Delivered virtually this 17th September, 2026. In the presence of Khamati for the Respondent and Ms Wachuna for the Applicant.