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. A passage in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 & 332 , states 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 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.
3. 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.
5. By Notice of Motion dated 20th July 2026 the applicant is seeking that pending the court decision on a permeant settlement, the court be pleased to issue an interim Order preserving the existing maintenance arrangements that have historically been in place for the welfare of T.R. , the respondent be ordered to continue making historical contribution towards the child’s housing and accommodation expenses, neither party shall withdraw, discontinue, reduce or substantially vary the existing maintenance arrangements relating to TR without leave of the court, the parties shall maintain the staus quo regarding the care, maintenance, welfare and living arrangements of TR parties shall continue ensuring that TR’s basic needs including food, shelter, clothing, health care and general welfare are met without interruption and that both parties shall refrain from taking any action that may prejudice, destabilize or adversely affect the welfare, wellbeing and best interests of TR.
6. The grounds are set out on the body of the application and they include;
a. RM is a child of tender years and is wholly dependent on both parents for his welfare and development.
b. DNA testing has proven that the Respondent is the biological father to TR.
c. That since the birth of the minor, the applicant has been the primary caregiver responsible for day-to-day upbringing, supervision, care and welfare.
d. The applicant provides medical insurance cover for TR through her employer.
e. Both parties have co-parented under the existing maintenance arrangements which has contributed to the child’s stability and welfare.
7. In response to the application, the appellant filed a replying affidavit and therein set out his grounds of opposition;
a. Contrary to the allegation of non-payment of maintenance for the month of July 2026, a copy of money transaction show that indeed he paid Kshs20,000/
b. The appellant pays a monthly maintenance of Kshs24,000/ and yet he has a family of six people including his wife and three children who depend on him.
c. The applicant is in gainful employment earning a sum of Kshs70,000/ and yet receives Kshs24,000/ for maintenance of the child.
d. The appellant laments that the itemized costs for a child is outrageous as a child cannot spend Kshs30,000/ for food, a month.
e. The appellant has a pending scheduled medical procedure which is very expensive as evidenced by a copy of the letter from the hospital marked WAA2.
f. The appellant states that he stays together with his family in a rented house where he pays Kshs24,000/ per month and the medical procedure is undertaken in a public hospital.
g. The appellant obtained a facility of Kshs100,000/ to cushion his family with respect to medical needs of his child.
8. The court has also contextualized the oral submissions in court on the 30th July, 2026.
9. Curiously, I have with singleness of my mind also perused the appellants application dated 13th July 2026 and note that the affidavit in support is similitude to the response to the application dated 20th July 2026. Conversely, the application dated 20th July 2026, strictly speaking, is a response to the application dated 13th July 2026. As it were, it invites the court to order for historical status quo to be maintained.
Analysis and Determination:
10. The best interest of the children is a principle which is at the centre of any proceedings affecting the children. Article 53(2) of the Constitution enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration.
11. The Court of Appeal in RWW Vs EKW 2019 eKLR held that; “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgement. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, the grant or refuse of an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the Respondent”
12. In the case of Butt Vs Rent Restriction Tribunal (1982) KLR 417 cited with approval in High Court Nakuru, Civil Appeal 182 of 2005, Ngotho Commercial Agencies Limited Vs George Wanjuki Geth i, the court noted as follows: “ Although the parties herein argued on the merits or otherwise of the Appeal, at this stage of the proceedings, that is not the concern of this Court. This Court is only concerned with whether the Appellant has satisfied the conditions set out in Order XL1 Rule 4 (2) of the Civil Procedure Rules" (now Order 42 Rule 6).
13. I have perused entire file and all pleadings by the parties at this stage and note that, all the affidavit material presented, dwell on the merits and demerits of the Appeal itself. That is not my jurisdiction at this stage. My duty as an appellate court at this stage, is to be satisfied with three- tier requirements of Order 42 Rule 6 of the Civil Procedure Act, Cap 21 Laws of Kenya for purposes of stay of execution of the lower court judgement. In event I begin to consider each of the evidential material presented by the affidavits and annexures, I will no doubt compromise the appeal itself. I do not want to take that trajectory.
14. For the purposes of this appeal, I shall give the following Orders;
a. The stay application as well as the Memorandum of Appeal to be disposed of simultaneously.
b. The applicant to prepare Record of Appeal and serve it within 14 days from today. The Respondent to file a response 14 days, if any, thereafter and serve.
c. As a condition for stay, the appellant to continue to pay maintenance of children in the sum of Kshs25,000/= per month, till the appeal is determined.
d. Mention before Deputy Registrar to fix a hearing date for the Appeal on 8th October, 2026.
Delivered virtually this 17th September, 2026 in the presence of the appellant, the Respondent and Mr Atamba for the applicant.
2. A passage in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 & 332 , states 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 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.
3. 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.
5. By Notice of Motion dated 20th July 2026 the applicant is seeking that pending the court decision on a permeant settlement, the court be pleased to issue an interim Order preserving the existing maintenance arrangements that have historically been in place for the welfare of T.R. , the respondent be ordered to continue making historical contribution towards the child’s housing and accommodation expenses, neither party shall withdraw, discontinue, reduce or substantially vary the existing maintenance arrangements relating to TR without leave of the court, the parties shall maintain the staus quo regarding the care, maintenance, welfare and living arrangements of TR parties shall continue ensuring that TR’s basic needs including food, shelter, clothing, health care and general welfare are met without interruption and that both parties shall refrain from taking any action that may prejudice, destabilize or adversely affect the welfare, wellbeing and best interests of TR.
6. The grounds are set out on the body of the application and they include;
a. RM is a child of tender years and is wholly dependent on both parents for his welfare and development.
b. DNA testing has proven that the Respondent is the biological father to TR.
c. That since the birth of the minor, the applicant has been the primary caregiver responsible for day-to-day upbringing, supervision, care and welfare.
d. The applicant provides medical insurance cover for TR through her employer.
e. Both parties have co-parented under the existing maintenance arrangements which has contributed to the child’s stability and welfare.
7. In response to the application, the appellant filed a replying affidavit and therein set out his grounds of opposition;
a. Contrary to the allegation of non-payment of maintenance for the month of July 2026, a copy of money transaction show that indeed he paid Kshs20,000/
b. The appellant pays a monthly maintenance of Kshs24,000/ and yet he has a family of six people including his wife and three children who depend on him.
c. The applicant is in gainful employment earning a sum of Kshs70,000/ and yet receives Kshs24,000/ for maintenance of the child.
d. The appellant laments that the itemized costs for a child is outrageous as a child cannot spend Kshs30,000/ for food, a month.
e. The appellant has a pending scheduled medical procedure which is very expensive as evidenced by a copy of the letter from the hospital marked WAA2.
f. The appellant states that he stays together with his family in a rented house where he pays Kshs24,000/ per month and the medical procedure is undertaken in a public hospital.
g. The appellant obtained a facility of Kshs100,000/ to cushion his family with respect to medical needs of his child.
8. The court has also contextualized the oral submissions in court on the 30th July, 2026.
9. Curiously, I have with singleness of my mind also perused the appellants application dated 13th July 2026 and note that the affidavit in support is similitude to the response to the application dated 20th July 2026. Conversely, the application dated 20th July 2026, strictly speaking, is a response to the application dated 13th July 2026. As it were, it invites the court to order for historical status quo to be maintained.
Analysis and Determination:
10. The best interest of the children is a principle which is at the centre of any proceedings affecting the children. Article 53(2) of the Constitution enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration.
11. The Court of Appeal in RWW Vs EKW 2019 eKLR held that; “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgement. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, the grant or refuse of an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the Respondent”
12. In the case of Butt Vs Rent Restriction Tribunal (1982) KLR 417 cited with approval in High Court Nakuru, Civil Appeal 182 of 2005, Ngotho Commercial Agencies Limited Vs George Wanjuki Geth i, the court noted as follows: “ Although the parties herein argued on the merits or otherwise of the Appeal, at this stage of the proceedings, that is not the concern of this Court. This Court is only concerned with whether the Appellant has satisfied the conditions set out in Order XL1 Rule 4 (2) of the Civil Procedure Rules" (now Order 42 Rule 6).
13. I have perused entire file and all pleadings by the parties at this stage and note that, all the affidavit material presented, dwell on the merits and demerits of the Appeal itself. That is not my jurisdiction at this stage. My duty as an appellate court at this stage, is to be satisfied with three- tier requirements of Order 42 Rule 6 of the Civil Procedure Act, Cap 21 Laws of Kenya for purposes of stay of execution of the lower court judgement. In event I begin to consider each of the evidential material presented by the affidavits and annexures, I will no doubt compromise the appeal itself. I do not want to take that trajectory.
14. For the purposes of this appeal, I shall give the following Orders;
a. The stay application as well as the Memorandum of Appeal to be disposed of simultaneously.
b. The applicant to prepare Record of Appeal and serve it within 14 days from today. The Respondent to file a response 14 days, if any, thereafter and serve.
c. As a condition for stay, the appellant to continue to pay maintenance of children in the sum of Kshs25,000/= per month, till the appeal is determined.
d. Mention before Deputy Registrar to fix a hearing date for the Appeal on 8th October, 2026.
Delivered virtually this 17th September, 2026 in the presence of the appellant, the Respondent and Mr Atamba for the applicant.