1. Before the Court are two Applications one dated 18 th June 2026 and the other dated 22 nd June 2026.
2. The first Application dated 18 th June 2026 was filed by Usamah Yusuf Timami (herein after the Appellant). The Appellant is seeking stay of execution and enforcement of orders pending the hearing and determination of an intended appeal arising from MCCHCC E907 of 2026.
3. On 19 th June 2026, the said Application was heard ex-parte and interim orders issued by my brother, Hon. Justice Ondieki.
4. The reasons advanced in the Application among other are:
a. That the Appellant intends to file an appeal against the decision and orders of Hon. B Ochoi in MCCHCC No. E907 of 2026.
b. That there are unsettled welfare issues affecting the children involved.
c. That the appeal will be rendered nugatory if the stay orders are not given.
5. The Second Application dated 22 nd June 2026 was filed by Dr. Manal Muzahim Salim Mohamed (herein after the Respondent). The Respondent seeks that the interim orders issued on 19 th June 2026 be vacated. She also seeks that the Appellant be barred from filing further suits, Applications or proceeding before another Court.
6. The reasons advanced in the Application are: -
a. That there was material non-disclosure and misrepresentation of facts by the Appellant.
b. That staying the orders in MCCHCC No. E907 of 2026 will in effect stay the orders of HCFA No. E021 of 2026 MBSA which is a Court of concurrent jurisdiction with the present Court.
c. That there is a pending ruling in the Court of Appeal Mombasa in CoA no. E053 of 2026. That the ruling being anticipated is also for stay of execution orders against orders issued in HCFA no. E021 of 2026, MBSA.
Factual background
7. The case between the Appellant and the Respondent begun from a divorce cause in the Kadhi’s Court in Mombasa in KCDC NO. E190 of 2025, which annulled their marriage and further gave custody of the Minors to the Respondent, with reasonable access to them by the Appellant. This decision on custody has not been appealed since then.
8. In compliance to the orders of the Kadhi the Respondent granted the Appellant reasonable access to the children during the April school holidays but the Appellant refused and/or neglected to return the children to the Respondent after the school holidays and there has been a cat and mouse chase for the children.
9. The Respondent then moved the Tononoka children’s Court through MCCHCC NO. E197 of 2026 seeking the enforcement of the custody orders. That Court at first agreed with the Respondent and granted her custody. Later, in another ruling dated 30 th April 2026 the Court revoked the custody order.
10. Being dissatisfied, the Respondent herein moved the Mombasa High Court through Appeal No. HCFA E021 of 2026 seeking review of the orders in Tononoka MCCHCC E197 of 2026. After analysis of the matter the Court found that the Application by the Respondent was merited thus the Court allowed the order for review and thus affirmed the custody orders issued in KCDC E190 of 2025.
11. The Court further ordered that the Appellant hands over the children to the Responded with the supervision of the County children’s Officer Mombasa county together with the officer commanding central police station Mombasa or Nairobi.
12. The Court also found that there were welfare issues that were yet to be determined and thus directed that the files be transmitted back to the lower Court for hearing and determination. The Court directed that for that purpose the matter be heard by the children’s Court in Nairobi.
13. The High Court in Mombasa declined to issue stay of execution but rather, the Court directed that the aggrieved party to seek the stay orders from the Court of appeal in Mombasa.
14. Being dissatisfied, the Appellant herein has filed an Application in the Court of appeal Mombasa, seeking for stay orders. The ruling is still pending delivery as I write this one.
15. The Appellant still failed to surrender the children as directed despite efforts by the children’s office and the OCS Mombasa.
16. As a result, the Respondent filed an Application seeking for coercive and enforcement orders in MCCHCC E907 of 2026 to enforce the orders issued in HCFA no. E021 of 2026. The Court indeed issued the orders and refused to sit on appeal against the High Court’s decision citing lack of jurisdiction and subsequently declined to issue the stay orders by referring the parties to the orders of the High Court in Mombasa.
17. Being dissatisfied again, the Appellant has approached this Court in this present suit seeking for stay orders against the decision in MCCHCC E907 of 2026. Further the Appellant intends to appeal the entire decision of the Children’s Court in MCCHCC E907 of 2026.
18. On 19 th June 2026, as noted earlier the Court issued interim orders pending hearing and determination of the Application. The Respondent in the same cause filed an Application dated 22 nd June 2026 seeking to review and set aside those interim orders.
Issues for determination
19. After consideration of the pleadings filed herein and the written as well as oral submissions made in court on the 1 st day of July, 2026, I frame the following issues for my determination in this matter: -
i.) Whether stay of execution of orders in MCCHCC E907 of 2026 is merited.
ii Whether this Court should vacate the interim orders of 19 th June 2026.
iii Whether this Court can bar the Appellant from filing further suits touching on the same subject matters herein .
Analysis and determination
20. First as I have highlighted in the case background, I agree with my sister Hon. Justice Wendy Micheni that this matter has unfolded across multiple fora with each forum not fully determining the issues. And having read the decision of Hon. Wendy Micheni, I indeed understand reasons for transmitting the matter to the children’s Court in Nairobi.
21. I take note that the children were first with the Respondent in compliance with the custody orders issued both in the Kadhi’s court and later in the high court at Mombasa. That later the Appellant picked the children during the school holidays, however he has failed to return the children and has held on to the children against the custody orders. (I shall deal with this fact later in the analysis)
22. I now turn and deal with the first issue for determination of whether the stay of execution order against the order in MCCHCC E907 of 2026 is merited . To begin with, the Court derives jurisdiction to entertain an Application for stay pending appeal under order 42 Rule 6 of the civil procedure rules, section 1A, 1 B and 3A of the civil procedure Act and Article 165 of the constitution. The power to grant stay is however discretionary and I am a live to the fact that the discretion must be exercised judiciously. The Appellant has rightfully quoted the case of Butt vs Rent Tribunal (1982) KLR 417 and I associate myself to the same.
23. While Applications for stay of execution are ordinarily governed by Order 42 Rule 6, where the subject matter concerns children, those principles must be read together with Article 53(2) of the Constitution and Sections 8 and 9 of the Children Act which elevates the best interests of the child above all competing interests.
24. The principles under order 42 rule 6 of the civil procedure rules and are well settled;
a. That the applicant must demonstrate substantial loss
b. That the Application must be made without unreasonable delay
c. That security for due performance must be offered.
25. On the principle of unreasonable delay; the Court agrees that the Application has indeed been brought without delay. Thus, the Court shall not belabor on that point.
26. On the principle of security for due performance ; the same must be offered and yet in this application none has been offered. Order 42 Rule 6 (2) (b) makes security mandatory and thus failure to offer security is not a mere technical omission rather a statutory prerequisite. But again, I understand why it has not been offered, this is not an ordinary stay where loss can be quantified. In fact, to my mind there is no loss to be incurred other than that the children are suffering with the back and forth by the parents.
27. On the principle of substantial loss, the Appellant has indicated that the children’s welfare is in jeopardy and that they are emotionally distressed. The alleged emotional distress of the children cannot, in the circumstances of this case, constitute substantial loss to the Appellant. Rather, the Court must ask whether refusing stay would occasion irreparable prejudice incapable of being remedied if the appeal ultimately succeeds. This Court holds that no prejudice will be incurred. The Appellant has retained access rights and the intended appeal remains capable of being prosecuted. The execution sought merely restores compliance with an existing lawful custody order.
28. In the Matter of Teachers service Commission V Kenya National Union of Teachers & 3 others [2015] eKLR the supreme Court opined that “ Court orders must be obeyed unless set aside” in the present instance the Court is faced with an issue of disobedience of Court orders and directions. The Appellant has continued to hold on to the children despite being aware of the custody orders. This Court shall not be a facilitator of an illegality in the name of emotional distress by the children clothed as substantial loss and any party coming before the Court seeking discretionary orders must come with clean hand. The hands of the Appellant are not clean for failure to obey the Court orders and thus should not receive equitable relief.
29. The Court indeed takes cognizance that this is a children’s matter and the subject matter are minor children of tender ages of 11years and 9 years respectively. Children are therefore not commodities to equate to loss being incurred. Section 8 of the children’s Act as read with Article 53 of the constitution demands that the best interest of the child be put first. In fact, Article 53 of the constitution states “A child’s best interest are of paramount importance in every matter concerning the child” to my mind Article 53 overrides ordinary stay principles where necessary. See the case of J. O v S.A. O [2016] eKLR where the Court held that “….in children’s matters the best interest principle overrides procedural considerations.”
30. However, the Court must balance two competing rights, namely the Appellant's right of appeal and the children's constitutional right to have their best interests treated as the paramount consideration. Where those interests’ conflict, Article 53(2) requires the Court to prioritize the welfare of the children.
31. The paramount consideration is not whether the Appellant suffers inconvenience rather whether granting the stay promotes the best interest of the children. See also the matter Z.M.O v E.I.M [2013] eKLR the Court held “that custody orders are made for the welfare of the children and not for vindication of parental rights.” In my mind, there is a live custody order that has not been complied with yet the Appellant seeks refuge in this Court to maintain custody against those orders. This is unacceptable.
32. The execution of the orders in MCCHCC E907 of 2026 merely restores compliance with lawful custody orders. In the same vein, will the intended appeal be rendered an academic exercise or nugatory if the stay is declined? The Court disagrees. There is no irreversible prejudice to be suffered by the Appellant and the appeal remains capable of being heard. See the case of Kenya Shell ltd vs Benjamin Karuga & another [1986] KLR 410.
33. On the question on Whether this Court should vacate the interim orders of 19 th June 2026. The Court is inclined to agree to set aside the said interim orders. Upon perusal of the Application, supporting affidavit, documents and submissions by the Appellant and conversely perusing the Application, supporting Affidavit documents and submissions of the Respondent and further analysing the case background, I note with exception that the Appellant at the onset misrepresented the facts and there was material non- disclosure of material facts by the Appellant to this court.
34. The Appellant did not reveal the fact that there is a pending ruling before the court of Appeal, the Appellant did not reveal the fact that they had sought for the same orders in HCFA E021 of 2026 MBSA and it was declined. Further, I note that stay of execution was denied by the lower Court in MCCHCC E907 of 2026 in which the trial Magistrate attributed the denial to abiding by the direction issued by the High Court sitting in Mombasa.
35. I have also read the decision of the High Court in Mombasa and indeed confirm that the stay of execution prayer was denied and parties were directed to the Court of Appeal in case any was aggrieved. The Appellant has since moved the Court of Appeal a fact that they did not reveal in their Application nor in their submissions herein. Hopefully, the court of appeal will determine it there.
36. The Appellant has indeed omitted to bring the above fact to the attention of the Court from the onset facts which go directly into exercising discretion. This material non-disclosure indeed warrants review of the interim orders issued on 19 th June 2026 by my brother Justice Ondieki. See the case of Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others [1998] eKLR where the Court held that “material non-disclosure when seeking ex parte orders justifies setting aside those orders”
37. Further the High Court sitting in Mombasa is a Court of concurrent jurisdiction to this Court. The Appellant in a mischievous way is asking this Court to sit on appeal or to review the orders of a Court of concurrent jurisdiction. This is unacceptable and the Court declines the invite.
38. Judicial comity demands that Courts of concurrent jurisdiction respect each other's decisions. To do otherwise would create uncertainty, encourage forum shopping and undermine the orderly administration of justice. In the case of Samuel Kamau Macharia v Kenya Commercial bank [2012] eKLR the supreme Court held that jurisdiction flows from the either the constitution or statues or both . A Court cannot therefore arrogate jurisdiction to itself.
39. Further the Court of Appeal has repeatedly held that a judge of concurrent jurisdiction cannot review, vary or sit on appeal against another judge’s decision. This Court has seen the through the tact used by the Appellant and is not amused by such maneuvers which is in fact an abuse of the Court process. As it was being called upon to neutralize the High Court sitting in Mombasa. See the case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR the Court of appeal defined abuse of Court process as “improper use of judicial process to interfere with the administration of justice.” I fully associate with this position.
40. Lastly, on the question of whether this Court can bar the Appellant from filing further suits touching on the same subject matters. Although the Respondent sought an order barring future proceeding, such an order would unduly fetter the Appellant's constitutional right of access to justice as is espoused in Article 48 of the Constitution. The Court is therefore not persuaded that such a prospective order should issue. However, this should not be construed as a license for abuse of court processes. Any future proceedings found to be frivolous, vexatious or duplicative shall remain subject to the ordinary powers of the Court. Unending litigation must be discouraged.
Conclusion
41. Having carefully considered the pleadings, affidavits, submissions, applicable constitutional provisions, the Children Act and the settled principles governing applications for stay pending appeal, the Court is not satisfied that the Appellant has met the threshold prescribed under Order 42 Rule 6 of the Civil Procedure Rules. More fundamentally, granting the orders sought would undermine existing custody orders and would not advance the paramount best interests of the children as guaranteed under Article 53(2) of the Constitution. The Application dated 18 th June 2026 is therefore dismissed with the interim orders issued on 19 th June 2026 standing as vacated.
42. The Respondent's prayer seeking to bar the Appellant from instituting future proceedings is declined for the reasons stated herein.
43. That any prayer not expressly allowed is declined.
44. I direct that the file be remitted back to the lower Court in MCCHCC E907 of 2026 for the hearing and determination of pending welfare and psychosocial matters (if any).
Orders accordingly.
Right of appeal 30 days.
Dated, Signed and delivered this 3 rd day of July, 2026.
……………………………
Hon. R. A. Oganyo, Mrs.
Judge.
In the presence of; -
Court Assistant…. E, Sana.
Mr. George Egunza for the Appellant
Mr. Ramadhan Abubakar alongside Miss Olao and Mr. Mbuthia for Respondent
2
2. The first Application dated 18 th June 2026 was filed by Usamah Yusuf Timami (herein after the Appellant). The Appellant is seeking stay of execution and enforcement of orders pending the hearing and determination of an intended appeal arising from MCCHCC E907 of 2026.
3. On 19 th June 2026, the said Application was heard ex-parte and interim orders issued by my brother, Hon. Justice Ondieki.
4. The reasons advanced in the Application among other are:
a. That the Appellant intends to file an appeal against the decision and orders of Hon. B Ochoi in MCCHCC No. E907 of 2026.
b. That there are unsettled welfare issues affecting the children involved.
c. That the appeal will be rendered nugatory if the stay orders are not given.
5. The Second Application dated 22 nd June 2026 was filed by Dr. Manal Muzahim Salim Mohamed (herein after the Respondent). The Respondent seeks that the interim orders issued on 19 th June 2026 be vacated. She also seeks that the Appellant be barred from filing further suits, Applications or proceeding before another Court.
6. The reasons advanced in the Application are: -
a. That there was material non-disclosure and misrepresentation of facts by the Appellant.
b. That staying the orders in MCCHCC No. E907 of 2026 will in effect stay the orders of HCFA No. E021 of 2026 MBSA which is a Court of concurrent jurisdiction with the present Court.
c. That there is a pending ruling in the Court of Appeal Mombasa in CoA no. E053 of 2026. That the ruling being anticipated is also for stay of execution orders against orders issued in HCFA no. E021 of 2026, MBSA.
Factual background
7. The case between the Appellant and the Respondent begun from a divorce cause in the Kadhi’s Court in Mombasa in KCDC NO. E190 of 2025, which annulled their marriage and further gave custody of the Minors to the Respondent, with reasonable access to them by the Appellant. This decision on custody has not been appealed since then.
8. In compliance to the orders of the Kadhi the Respondent granted the Appellant reasonable access to the children during the April school holidays but the Appellant refused and/or neglected to return the children to the Respondent after the school holidays and there has been a cat and mouse chase for the children.
9. The Respondent then moved the Tononoka children’s Court through MCCHCC NO. E197 of 2026 seeking the enforcement of the custody orders. That Court at first agreed with the Respondent and granted her custody. Later, in another ruling dated 30 th April 2026 the Court revoked the custody order.
10. Being dissatisfied, the Respondent herein moved the Mombasa High Court through Appeal No. HCFA E021 of 2026 seeking review of the orders in Tononoka MCCHCC E197 of 2026. After analysis of the matter the Court found that the Application by the Respondent was merited thus the Court allowed the order for review and thus affirmed the custody orders issued in KCDC E190 of 2025.
11. The Court further ordered that the Appellant hands over the children to the Responded with the supervision of the County children’s Officer Mombasa county together with the officer commanding central police station Mombasa or Nairobi.
12. The Court also found that there were welfare issues that were yet to be determined and thus directed that the files be transmitted back to the lower Court for hearing and determination. The Court directed that for that purpose the matter be heard by the children’s Court in Nairobi.
13. The High Court in Mombasa declined to issue stay of execution but rather, the Court directed that the aggrieved party to seek the stay orders from the Court of appeal in Mombasa.
14. Being dissatisfied, the Appellant herein has filed an Application in the Court of appeal Mombasa, seeking for stay orders. The ruling is still pending delivery as I write this one.
15. The Appellant still failed to surrender the children as directed despite efforts by the children’s office and the OCS Mombasa.
16. As a result, the Respondent filed an Application seeking for coercive and enforcement orders in MCCHCC E907 of 2026 to enforce the orders issued in HCFA no. E021 of 2026. The Court indeed issued the orders and refused to sit on appeal against the High Court’s decision citing lack of jurisdiction and subsequently declined to issue the stay orders by referring the parties to the orders of the High Court in Mombasa.
17. Being dissatisfied again, the Appellant has approached this Court in this present suit seeking for stay orders against the decision in MCCHCC E907 of 2026. Further the Appellant intends to appeal the entire decision of the Children’s Court in MCCHCC E907 of 2026.
18. On 19 th June 2026, as noted earlier the Court issued interim orders pending hearing and determination of the Application. The Respondent in the same cause filed an Application dated 22 nd June 2026 seeking to review and set aside those interim orders.
Issues for determination
19. After consideration of the pleadings filed herein and the written as well as oral submissions made in court on the 1 st day of July, 2026, I frame the following issues for my determination in this matter: -
i.) Whether stay of execution of orders in MCCHCC E907 of 2026 is merited.
ii Whether this Court should vacate the interim orders of 19 th June 2026.
iii Whether this Court can bar the Appellant from filing further suits touching on the same subject matters herein .
Analysis and determination
20. First as I have highlighted in the case background, I agree with my sister Hon. Justice Wendy Micheni that this matter has unfolded across multiple fora with each forum not fully determining the issues. And having read the decision of Hon. Wendy Micheni, I indeed understand reasons for transmitting the matter to the children’s Court in Nairobi.
21. I take note that the children were first with the Respondent in compliance with the custody orders issued both in the Kadhi’s court and later in the high court at Mombasa. That later the Appellant picked the children during the school holidays, however he has failed to return the children and has held on to the children against the custody orders. (I shall deal with this fact later in the analysis)
22. I now turn and deal with the first issue for determination of whether the stay of execution order against the order in MCCHCC E907 of 2026 is merited . To begin with, the Court derives jurisdiction to entertain an Application for stay pending appeal under order 42 Rule 6 of the civil procedure rules, section 1A, 1 B and 3A of the civil procedure Act and Article 165 of the constitution. The power to grant stay is however discretionary and I am a live to the fact that the discretion must be exercised judiciously. The Appellant has rightfully quoted the case of Butt vs Rent Tribunal (1982) KLR 417 and I associate myself to the same.
23. While Applications for stay of execution are ordinarily governed by Order 42 Rule 6, where the subject matter concerns children, those principles must be read together with Article 53(2) of the Constitution and Sections 8 and 9 of the Children Act which elevates the best interests of the child above all competing interests.
24. The principles under order 42 rule 6 of the civil procedure rules and are well settled;
a. That the applicant must demonstrate substantial loss
b. That the Application must be made without unreasonable delay
c. That security for due performance must be offered.
25. On the principle of unreasonable delay; the Court agrees that the Application has indeed been brought without delay. Thus, the Court shall not belabor on that point.
26. On the principle of security for due performance ; the same must be offered and yet in this application none has been offered. Order 42 Rule 6 (2) (b) makes security mandatory and thus failure to offer security is not a mere technical omission rather a statutory prerequisite. But again, I understand why it has not been offered, this is not an ordinary stay where loss can be quantified. In fact, to my mind there is no loss to be incurred other than that the children are suffering with the back and forth by the parents.
27. On the principle of substantial loss, the Appellant has indicated that the children’s welfare is in jeopardy and that they are emotionally distressed. The alleged emotional distress of the children cannot, in the circumstances of this case, constitute substantial loss to the Appellant. Rather, the Court must ask whether refusing stay would occasion irreparable prejudice incapable of being remedied if the appeal ultimately succeeds. This Court holds that no prejudice will be incurred. The Appellant has retained access rights and the intended appeal remains capable of being prosecuted. The execution sought merely restores compliance with an existing lawful custody order.
28. In the Matter of Teachers service Commission V Kenya National Union of Teachers & 3 others [2015] eKLR the supreme Court opined that “ Court orders must be obeyed unless set aside” in the present instance the Court is faced with an issue of disobedience of Court orders and directions. The Appellant has continued to hold on to the children despite being aware of the custody orders. This Court shall not be a facilitator of an illegality in the name of emotional distress by the children clothed as substantial loss and any party coming before the Court seeking discretionary orders must come with clean hand. The hands of the Appellant are not clean for failure to obey the Court orders and thus should not receive equitable relief.
29. The Court indeed takes cognizance that this is a children’s matter and the subject matter are minor children of tender ages of 11years and 9 years respectively. Children are therefore not commodities to equate to loss being incurred. Section 8 of the children’s Act as read with Article 53 of the constitution demands that the best interest of the child be put first. In fact, Article 53 of the constitution states “A child’s best interest are of paramount importance in every matter concerning the child” to my mind Article 53 overrides ordinary stay principles where necessary. See the case of J. O v S.A. O [2016] eKLR where the Court held that “….in children’s matters the best interest principle overrides procedural considerations.”
30. However, the Court must balance two competing rights, namely the Appellant's right of appeal and the children's constitutional right to have their best interests treated as the paramount consideration. Where those interests’ conflict, Article 53(2) requires the Court to prioritize the welfare of the children.
31. The paramount consideration is not whether the Appellant suffers inconvenience rather whether granting the stay promotes the best interest of the children. See also the matter Z.M.O v E.I.M [2013] eKLR the Court held “that custody orders are made for the welfare of the children and not for vindication of parental rights.” In my mind, there is a live custody order that has not been complied with yet the Appellant seeks refuge in this Court to maintain custody against those orders. This is unacceptable.
32. The execution of the orders in MCCHCC E907 of 2026 merely restores compliance with lawful custody orders. In the same vein, will the intended appeal be rendered an academic exercise or nugatory if the stay is declined? The Court disagrees. There is no irreversible prejudice to be suffered by the Appellant and the appeal remains capable of being heard. See the case of Kenya Shell ltd vs Benjamin Karuga & another [1986] KLR 410.
33. On the question on Whether this Court should vacate the interim orders of 19 th June 2026. The Court is inclined to agree to set aside the said interim orders. Upon perusal of the Application, supporting affidavit, documents and submissions by the Appellant and conversely perusing the Application, supporting Affidavit documents and submissions of the Respondent and further analysing the case background, I note with exception that the Appellant at the onset misrepresented the facts and there was material non- disclosure of material facts by the Appellant to this court.
34. The Appellant did not reveal the fact that there is a pending ruling before the court of Appeal, the Appellant did not reveal the fact that they had sought for the same orders in HCFA E021 of 2026 MBSA and it was declined. Further, I note that stay of execution was denied by the lower Court in MCCHCC E907 of 2026 in which the trial Magistrate attributed the denial to abiding by the direction issued by the High Court sitting in Mombasa.
35. I have also read the decision of the High Court in Mombasa and indeed confirm that the stay of execution prayer was denied and parties were directed to the Court of Appeal in case any was aggrieved. The Appellant has since moved the Court of Appeal a fact that they did not reveal in their Application nor in their submissions herein. Hopefully, the court of appeal will determine it there.
36. The Appellant has indeed omitted to bring the above fact to the attention of the Court from the onset facts which go directly into exercising discretion. This material non-disclosure indeed warrants review of the interim orders issued on 19 th June 2026 by my brother Justice Ondieki. See the case of Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others [1998] eKLR where the Court held that “material non-disclosure when seeking ex parte orders justifies setting aside those orders”
37. Further the High Court sitting in Mombasa is a Court of concurrent jurisdiction to this Court. The Appellant in a mischievous way is asking this Court to sit on appeal or to review the orders of a Court of concurrent jurisdiction. This is unacceptable and the Court declines the invite.
38. Judicial comity demands that Courts of concurrent jurisdiction respect each other's decisions. To do otherwise would create uncertainty, encourage forum shopping and undermine the orderly administration of justice. In the case of Samuel Kamau Macharia v Kenya Commercial bank [2012] eKLR the supreme Court held that jurisdiction flows from the either the constitution or statues or both . A Court cannot therefore arrogate jurisdiction to itself.
39. Further the Court of Appeal has repeatedly held that a judge of concurrent jurisdiction cannot review, vary or sit on appeal against another judge’s decision. This Court has seen the through the tact used by the Appellant and is not amused by such maneuvers which is in fact an abuse of the Court process. As it was being called upon to neutralize the High Court sitting in Mombasa. See the case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR the Court of appeal defined abuse of Court process as “improper use of judicial process to interfere with the administration of justice.” I fully associate with this position.
40. Lastly, on the question of whether this Court can bar the Appellant from filing further suits touching on the same subject matters. Although the Respondent sought an order barring future proceeding, such an order would unduly fetter the Appellant's constitutional right of access to justice as is espoused in Article 48 of the Constitution. The Court is therefore not persuaded that such a prospective order should issue. However, this should not be construed as a license for abuse of court processes. Any future proceedings found to be frivolous, vexatious or duplicative shall remain subject to the ordinary powers of the Court. Unending litigation must be discouraged.
Conclusion
41. Having carefully considered the pleadings, affidavits, submissions, applicable constitutional provisions, the Children Act and the settled principles governing applications for stay pending appeal, the Court is not satisfied that the Appellant has met the threshold prescribed under Order 42 Rule 6 of the Civil Procedure Rules. More fundamentally, granting the orders sought would undermine existing custody orders and would not advance the paramount best interests of the children as guaranteed under Article 53(2) of the Constitution. The Application dated 18 th June 2026 is therefore dismissed with the interim orders issued on 19 th June 2026 standing as vacated.
42. The Respondent's prayer seeking to bar the Appellant from instituting future proceedings is declined for the reasons stated herein.
43. That any prayer not expressly allowed is declined.
44. I direct that the file be remitted back to the lower Court in MCCHCC E907 of 2026 for the hearing and determination of pending welfare and psychosocial matters (if any).
Orders accordingly.
Right of appeal 30 days.
Dated, Signed and delivered this 3 rd day of July, 2026.
……………………………
Hon. R. A. Oganyo, Mrs.
Judge.
In the presence of; -
Court Assistant…. E, Sana.
Mr. George Egunza for the Appellant
Mr. Ramadhan Abubakar alongside Miss Olao and Mr. Mbuthia for Respondent
2