Dbh v Asm

it was agreed tht the Respondent would take temporary custody of the minors while she visited them. She secured a job in Somalia but would visit the children during school holidays. In 2024, the Respondent transferred the minors to [Particulars Withheld] Academy citing increased school fees without informing her. She returned to the country permanenly in April 2025. She was allowed to briefly spend time with the minors during holidays but their visit was limited upto midday by the Respondent. 4. The children expressed the desire to live with her. She noticed the children were emotionally troubled. She visited the minors school and the teacher confirmed that the minors were withdrawn, fatigued and lacking in basic care. Since she was now financially stable, she took steps to assume custody of the minors. On 4th July 2025, she removed the children from the Respondent’s care and enrolled them at Plainsview Educational Point. She informed the Respondent of the changes. However,the Respondent reported the Applicant to the police accusing her of abducting the children. He then filed an application dated 9th July 2025 seeking orders that the minors be produced in court, he be granted custody and the minors be returned to their former school. 5. The court issued interim orders on 22nd August 2025 allowing him custody of the children and that they be returned to their former school. She is aggrieved by the ruling of the trial court and has preferred an appeal. She agues that if the orders are enforced before the determination of the appeal, the minors stand to suffer emotional trauma, academic disruption and will be placed back into an environment where their welfare has been previously neglected. The minors are settled and thriving and have adjusted in their current school. That it is in the best interest of the minors that the status quo be preserved. The application has been brought without undue delay and is made in good faith. 6. In response, the Respondent ASM opposed the application through a Replying Affidavit dated 24th September 2025. He averred that the applicant instituted a suit against him . On 5th March 2020, the court granted interim custody of the minors to the applicant. In February 2021, the Applicant allowed the Respondent to have custody of the children while she had unlimited access to them. The Applicant took the children from their former school [Particulars Withheld] Academy and moved them to Plainsview Educational Point without consulting him. That on 22nd August 2025, the trial court issued orders in his favour concerning the custody of the children and that the minos be returned to their previous schools. 7. However, the applicant has refused to return the minors to him. According to him, the minors are boys and they should be living with him.The Applicant doesn’t have adequate space in her house, one of the minors shares a bed with her while the other one shares a bedroom with his aunty. He argues that the applicant has intentions to move the minors out of the jurisdiction of this court. He opposes the applicant’s application for stay and the stay orders issued on 27th August 2025. Background 8. The appeal herein emanates from the proceedings in Nairobi Children Case No. 1493 of 2019 The trial court was tasked to determine an application dated 9th July 2025 where the Respondent sought an order for production of the minors on the basis that the applicant took them away from school on 4th July 2025 and has since held them incommunicado, with their whereabouts remaining unknown. He also sought prayers that the minors be returned to his custody and that the minors shall not be removed from the jurisdiction of this court. 9. On 22nd August 2025, Hon. Andrew Githinji Munene , Principal Magistrate made the following orders; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17414/eng@2025-11-28 2

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1. The Defendant father shall in the interim have the actual custody of the minors effective 24/8/2025 for purposes of school preparations. 2. The minors shall be returned to the previous school which is [Particulars Withheld] School. 3. The Plaintiff shall have access to the minors on alternate weeekends and shall pick the minors from school on Friday and drop off them at school on Monday. 4. The parties shall undergo co-parenting coaching. 5. The minors shall not be taken out of the county without leave of the court or consent of the parties. 6. That the matter is referred to the court annexed mediation to see whether parties can settle out of court, parties will be contacted. 10. The Applicant was aggrieved by the court’s orders and filed an appeal before this court. 11. The application was canvassed by way of written submissions. The applicant did not file written submissions. The Respondent’’s submissions are dated 25th September 2025. Respondent’s Submissions 12. The Applicant submitted that the principles of stay of execution are governed by Order 42 Rule (6) (2) of the Civil Procedure Rules which provides that THE applicant must demonstrate that they will suffer loss if stay is not issued. He sought to rely on the decision of Butt v Rent Restriction Tribunal [1979] eKLR , which states that that the discretion to grant stay should be exercised judicially and only upon sufficient cause being shown. 13. In this case, hne argues that the applicant has not demonstrated the substantial loss she will suffer if the stay is not issued. He argues that the orders issued by the trial court were on the interim pending hearing and determination of the suit. The applicant was granted access over the weekends. According to him, the minors routine has been changed which is not in their best interest. Analysis And Determination. 14. I have considered the application before me, the Reply filed by the Respondent as well as the written submissions filed by the Respondent. The Applicant is seeking orders mainly to stay the orders issued by the trial court on 22nd August 2025. The guiding principle on all matters touching on children is found under Article 53(2) which provides that: "A child’s best interests are of paramount importance in every matter concerning the child." 15. In the case of Bhutt v Bhutt Mombasa HCCC No. 8 of 2014, the Court held as follows:“ In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with “Article 53(2) of the Constitution.” (Own emphasis). 16. It is conceded that the applicant left the minors in the respondent’s custody in 2020 when she had to leave the Country to seek employment. She was away on work assignment, visiting the children when she came home over the holidays. She returned to Kenya permanently in 2025 and it was then she took the decision to take the Children into her custody and change their schools. She says she made this https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17414/eng@2025-11-28 3

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decision in response to a request from the children and based on her observation that the children were not well taken care of. This action prompted the respondent to approach the Court. 17. It is not disputed that the parties are the biological parents of the minors. At the time the orders were made the respondent had custody of the minors. In my mind granting the prayers as sought by the applicant would be tantamount to sanitising her actions. The respondent had custody of the Children, if she wanted to assert her parental rights she had two options. Negotiate and strik e a compromise with the applicant or approach the Court as she did earlier and have the Court determine. Instead she acted unitlaterally nad now urges the Court to legitimiae her actions with a court order. 18. The trial court exercised its discretion after hearing both the parties and has issued interim orders that accommodate both the applicant’s and respondent’s parental rights pending the hearing of the matter. The Court in Mbogo v Shah (1968) EA 93 set out the limited circumstances when an appellate court can interfere with the exercise of discretion of the Court from which the appeal emanates when it stated thus:“ A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice." 19. All factors considered I do not think that the appellant has met the threshold for this Court to interfere with the ruling of the trial court, consequently I find no merit in this application. The same is dismissed in its entirety. 20. This being a family matter each side will met its own costs. DATED AND DELIVERED VIRTUALLY AT NAIRBI THIS 28TH DAY OF NOVEMBER 2025. M NYAUNDI JUDGE In the presence of: Fardosa Court Assistant Ms. Waibei holding brief for Osiemo for Applicant Ms. Masaki for Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17414/eng@2025-11-28 4

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