RULING
Introduction
1. Before this Court for determination is the Appellant’s Notice of Motion dated 21st July 2025, brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya, 2010, and all other enabling provisions of the law.
The Appellant seeks, inter alia:
a. A stay of execution of the orders issued by the Chief Magistrate’s Court at Kisii on 2nd July 2024 in KISII CMCC CHILD NO. E033 OF 2024, pending the hearing and determination of this appeal.
b. Costs of the application.
2. The application is supported by the affidavit of Zipporah Kwamboka Mochama, sworn on 21st July 2025, and is opposed through a replying affidavit sworn by the Respondent, Evanson Onchiri Gichana, on 1st September 2025, together with written submissions by both parties.
Background
3. The appeal herein arises from proceedings before the Chief Magistrate’s Court in Child Case No. E033 of 2024, where the trial court issued orders granting the Appellant actual custody of the minors but allowed the Respondent visitation rights at the Appellant’s residence.
4. Dissatisfied with the said orders, the Appellant lodged the present appeal and contemporaneously sought a stay of execution. The lower court granted a temporary stay for seven (7) days only, pending directions, prompting the Appellant to move this Court.
5. The Appellant contends that allowing visitation at her residence poses a real risk to her safety and that of the minors, citing past conduct by the Respondent including alleged abduction of the children to Tanzania, intimidation, and psychological harm as evidenced by a DCI Kisii investigation report. She argues that unless stay is granted, the appeal will be rendered nugatory and the minors exposed to harm.
6. The Respondent, on the other hand, maintains that the application is misconceived, unconstitutional, and contrary to the best interests of the child, arguing that the minors have a constitutional right to parental care by both parents and that stay of execution would unjustly curtail those rights.
Issues for Determination
7. Having considered the pleadings, affidavits, and submissions on record, the Court finds that the following issues arise for determination:
1. Whether the Appellant has satisfied the threshold for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
2. Whether granting or denying stay accords with the best interests of the child principle under the Constitution and the Children Act, 2022.
3. What orders should issue.
Analysis and Determination
Principles Governing Stay of Execution Pending Appeal
8. The applicable law is Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that an order for stay shall not be made unless:
a) The court is satisfied that substantial loss may result to the applicant unless the order is made;
b) The application has been made without unreasonable delay; and
c) Such security as the court orders for the due performance of the decree has been given.
These principles were succinctly articulated in Butt v Rent Restriction Tribunal [1982] KLR 417, where the Court of Appeal held that the power to grant stay is discretionary and should be exercised to ensure that an appeal is not rendered nugatory.
Whether the Appellant Will Suffer Substantial Loss
9. Substantial loss is the cornerstone of an application for stay. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the court held that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
In the present case, the Appellant has deponed to serious allegations touching on the safety and welfare of the minors, including:
• Prior removal of the children from the jurisdiction without consent;
• A DCI investigation report confirming misleading conduct by the Respondent;
• Alleged intimidation involving unknown persons at the minors’ school.
While these allegations are contested and remain matters for determination at the substantive appeal, this Court cannot ignore that children matters are sui generis and demand a cautious, protective approach.
10. This Court is persuaded that if the impugned visitation orders are implemented before the appeal is heard, and should the appeal ultimately succeed, the harm occasioned—particularly to the minors—may not be easily reversible. That constitutes substantial loss within the meaning of Order 42 Ru
Delay
11. The ruling appealed against was delivered on 2nd July 2024, and the present application was filed shortly thereafter following the lapse of the limited stay granted by the trial court. The Court finds no unreasonable delay in the circumstances.
Security
12. This being a children matter, the issue of monetary security is not strictly applicable. Courts have consistently held that in custody and access disputes, security should not be used to defeat substantive justice. (See RWW v EKW [2019] eKLR.
Best Interests of the Child
13. Article 53(2) of the Constitution and Section 8 of the Children Act, 2022 provides that the best interests of the child are of paramount importance in every matter concerning the child.
14. The Respondent has correctly submitted that children have a right to parental care from both parents. However, that right is not absolute and must be balanced against safety, emotional wellbeing, and stability of the children .
14. In JKN v HWN [2019] eKLR, the High Court held that where there are credible concerns regarding a child’s safety, courts are entitled to temporarily limit access pending further inquiry, provided such limitation is reasonable and proportionate.
15 . In the upshot , it is my considered view that granting a stay in this instance does not permanently deny the Respondent access; it merely preserves the status quo pending the hearing of the appeal. This Court is satisfied that such an approach best serves the interests of the minors at this interlocutory stage.
Conclusion
16. Upon careful consideration of the law, the facts, and the competing constitutional rights at play, this Court is satisfied that the Appellant has met the threshold for grant of stay of execution pending appeal.
Orders
17. Accordingly, the Court makes the following orders:
1. A stay of execution of the orders issued by the Chief Magistrate’s Court at Kisii on 2nd July 2025 in KISII CMCC CHILD NO. E033 OF 2024 is hereby granted pending the hearing and determination of this appeal.
2. The appeal shall be fast-tracked and listed for directions within 10 days from the date hereof.
3. In the interim, no visitation shall take place at the Appellant’s residence unless otherwise directed by this Court.
4. Each party to bear his own costs.
It is so ordered.
T.A ODERA -JUDGE
HIGH COURT
23.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM THIS 23RD DAY OF FEBRUARY 2026. IN THE PRESENCE OF MR ANYONA FOR THE APPLICANT/APPELLANT . NO APPEARANCE FOR RESPONDENT .CA KIPCHIRCHIR
CT : is ROA ready ?
Anyona : the proceedings are not typed .
Order : Typed proceedings be expedited . ROA be filed and served within 10 days form today.
Mention 11.3.26 for compliance .
T.A ODERA
JUDGE
23.2.26
Introduction
1. Before this Court for determination is the Appellant’s Notice of Motion dated 21st July 2025, brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya, 2010, and all other enabling provisions of the law.
The Appellant seeks, inter alia:
a. A stay of execution of the orders issued by the Chief Magistrate’s Court at Kisii on 2nd July 2024 in KISII CMCC CHILD NO. E033 OF 2024, pending the hearing and determination of this appeal.
b. Costs of the application.
2. The application is supported by the affidavit of Zipporah Kwamboka Mochama, sworn on 21st July 2025, and is opposed through a replying affidavit sworn by the Respondent, Evanson Onchiri Gichana, on 1st September 2025, together with written submissions by both parties.
Background
3. The appeal herein arises from proceedings before the Chief Magistrate’s Court in Child Case No. E033 of 2024, where the trial court issued orders granting the Appellant actual custody of the minors but allowed the Respondent visitation rights at the Appellant’s residence.
4. Dissatisfied with the said orders, the Appellant lodged the present appeal and contemporaneously sought a stay of execution. The lower court granted a temporary stay for seven (7) days only, pending directions, prompting the Appellant to move this Court.
5. The Appellant contends that allowing visitation at her residence poses a real risk to her safety and that of the minors, citing past conduct by the Respondent including alleged abduction of the children to Tanzania, intimidation, and psychological harm as evidenced by a DCI Kisii investigation report. She argues that unless stay is granted, the appeal will be rendered nugatory and the minors exposed to harm.
6. The Respondent, on the other hand, maintains that the application is misconceived, unconstitutional, and contrary to the best interests of the child, arguing that the minors have a constitutional right to parental care by both parents and that stay of execution would unjustly curtail those rights.
Issues for Determination
7. Having considered the pleadings, affidavits, and submissions on record, the Court finds that the following issues arise for determination:
1. Whether the Appellant has satisfied the threshold for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
2. Whether granting or denying stay accords with the best interests of the child principle under the Constitution and the Children Act, 2022.
3. What orders should issue.
Analysis and Determination
Principles Governing Stay of Execution Pending Appeal
8. The applicable law is Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that an order for stay shall not be made unless:
a) The court is satisfied that substantial loss may result to the applicant unless the order is made;
b) The application has been made without unreasonable delay; and
c) Such security as the court orders for the due performance of the decree has been given.
These principles were succinctly articulated in Butt v Rent Restriction Tribunal [1982] KLR 417, where the Court of Appeal held that the power to grant stay is discretionary and should be exercised to ensure that an appeal is not rendered nugatory.
Whether the Appellant Will Suffer Substantial Loss
9. Substantial loss is the cornerstone of an application for stay. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the court held that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
In the present case, the Appellant has deponed to serious allegations touching on the safety and welfare of the minors, including:
• Prior removal of the children from the jurisdiction without consent;
• A DCI investigation report confirming misleading conduct by the Respondent;
• Alleged intimidation involving unknown persons at the minors’ school.
While these allegations are contested and remain matters for determination at the substantive appeal, this Court cannot ignore that children matters are sui generis and demand a cautious, protective approach.
10. This Court is persuaded that if the impugned visitation orders are implemented before the appeal is heard, and should the appeal ultimately succeed, the harm occasioned—particularly to the minors—may not be easily reversible. That constitutes substantial loss within the meaning of Order 42 Ru
Delay
11. The ruling appealed against was delivered on 2nd July 2024, and the present application was filed shortly thereafter following the lapse of the limited stay granted by the trial court. The Court finds no unreasonable delay in the circumstances.
Security
12. This being a children matter, the issue of monetary security is not strictly applicable. Courts have consistently held that in custody and access disputes, security should not be used to defeat substantive justice. (See RWW v EKW [2019] eKLR.
Best Interests of the Child
13. Article 53(2) of the Constitution and Section 8 of the Children Act, 2022 provides that the best interests of the child are of paramount importance in every matter concerning the child.
14. The Respondent has correctly submitted that children have a right to parental care from both parents. However, that right is not absolute and must be balanced against safety, emotional wellbeing, and stability of the children .
14. In JKN v HWN [2019] eKLR, the High Court held that where there are credible concerns regarding a child’s safety, courts are entitled to temporarily limit access pending further inquiry, provided such limitation is reasonable and proportionate.
15 . In the upshot , it is my considered view that granting a stay in this instance does not permanently deny the Respondent access; it merely preserves the status quo pending the hearing of the appeal. This Court is satisfied that such an approach best serves the interests of the minors at this interlocutory stage.
Conclusion
16. Upon careful consideration of the law, the facts, and the competing constitutional rights at play, this Court is satisfied that the Appellant has met the threshold for grant of stay of execution pending appeal.
Orders
17. Accordingly, the Court makes the following orders:
1. A stay of execution of the orders issued by the Chief Magistrate’s Court at Kisii on 2nd July 2025 in KISII CMCC CHILD NO. E033 OF 2024 is hereby granted pending the hearing and determination of this appeal.
2. The appeal shall be fast-tracked and listed for directions within 10 days from the date hereof.
3. In the interim, no visitation shall take place at the Appellant’s residence unless otherwise directed by this Court.
4. Each party to bear his own costs.
It is so ordered.
T.A ODERA -JUDGE
HIGH COURT
23.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM THIS 23RD DAY OF FEBRUARY 2026. IN THE PRESENCE OF MR ANYONA FOR THE APPLICANT/APPELLANT . NO APPEARANCE FOR RESPONDENT .CA KIPCHIRCHIR
CT : is ROA ready ?
Anyona : the proceedings are not typed .
Order : Typed proceedings be expedited . ROA be filed and served within 10 days form today.
Mention 11.3.26 for compliance .
T.A ODERA
JUDGE
23.2.26