High Court 19794 of 2025

the minor. In the judgment of the magistrate, the applicant states that orders of the court meant that minor is meant to leave a home he has known all his life and start a new life with the respondent who has been absent from his life for the past 7 years. 6. The applicant relies on the case of Mutheu Agatha Khimulu vs Raheem Mehdi Aziz Azad & 4 Others (Petition No. E003 of 2022) and states that the judgment of the lower court did not consider the best interest of the child or the guidelines that ought to be considered when balancing the best interests of the minor and parental rights and responsibility. 7. The applicant argues that the respondent will not suffer any prejudice if the application is allowed as the same will simply maintain the status quo that has been there for the past 7 years. On the other hand the minor will largely be affected if the orders sought are not granted as his stability and psychological well being will be greatly affected. 8. The applicant avers that this appeal raises serious and arguable grounds with a very high probability of success. Further, the applicant states that he has filed the current application without undue delay and taken steps to ensure that the record of appeal is filed in good time to avert any delays in the determination of the appeal. The Respondent’s Case 9. The respondent states that the lower court took over one year before judgment in the case was delivered. This was after careful consideration of the best interest of the child. 10. The respondent further states that the applicant has a history of not complying with court orders and thus his efforts to seek stay of execution is another calculated move to ensure that justice for the child is delayed for his own selfish interests. 11. The respondent avers that the birth certificate produced by the applicant cannot be verified by the National Registration Bureau. The respondent further avers that she holds the true birth certificate as confirmed by the National Registration Bureau. The respondent states that the applicant is misleading the court in stating that the child was born in Kakamega county while it is clear that the child was born in Nairobi before the applicant decided to take the child to his rural home due to the couple’s relationship that became shaky. 12. The respondent avers that she is not a stranger to the minor and the child is well known to her as per previous visits evidenced by photos already presented in the trial court. 13. The respondent argues that no evidence has been adduced to support the allegations that she is unable to exercise both actual and legal custody of the child. It was also denied that the respondent intended to allow the paternal grandparents to take over the custody of the child who clearly recognizes her as the biological parent. 14. The respondent states that she does not have any ill motive in having the custody of the child who has forcefully been placed under the care of the paternal grandparents in Kakamega county whereas she and the applicant live separately in Kiambu and Kajiado county respectively. Thus, the applicant’s intention is to ensure that the child stays in the village with the grandparents while he stays in Kitengela in Kajiado county which is not in the best interests of the child. 15. The respondent argues that the law allows a child to be under the custody of both or either parent and thus she has no reason to place the child under the custody of its paternal grandparents. 16. The respondent urges the court to consider the judgment of the lower court and the fact that the applicant refused to give her actual custody as per the trial court judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19794/eng@2025-02-27 2

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17. The respondent further requests the court to give directions on the legality of the birth certificate produced by the applicant. 18. The applicant filed a Further Affidavit dated 20th December 2024 and states that he resides in Kakamega county, their family home, with his parents and the minor. 19. The applicant states that the respondent cannot claim to know the best interests of the child when she has been missing from his life for more than 7 years. Thus, it is in the best interests of the minor that he remains in the applicant’s custody to avoid interference with his life and schooling. 20. The applicant avers that he has always obeyed court orders as he has allowed the respondent access to the minor which is the reason she has pictures she is referring to her in her affidavit. 21. The applicant states that the minor is undergoing counselling following the orders in the judgment of the lower court. 22. Parties disposed of the application by way of written submissions. The Applicant’s Submissions 23. The applicant relies on Order 42 Rule 6 of the Civil Procedure Rules and submits that the judgment in Children Case Number E162 of 2023 was delivered on 7th November 2024 and the present application was filed on 19th November 2024, which is less than two weeks after the judgment and thus the application was filed timeously. 24. The applicant refers to the case of PNC vs NMC [2021] eKLR and submits that substantial loss ought to be quantified from the point of view of the affected minor. In the instant case, the minor was abandoned at the tender age of 8 months and has lived with the applicant continuously for more than 7 years. The minor has a well established life and he has known the applicant’s home as his home all his life. He attends school from the said home and he is surrounded by relatives and friends. The applicant argues that having the minor uprooted from the environment he is used to, and to be moved across the country to start a new life with the respondent, will greatly affect his stability and will not be in his best interests. To support his contentions, the applicant relies on the case of FCM (Suing as next friend of GCM, BCM and BKN (Minors) vs LMM (Family appeal E006 of 2024) [2024] KEHC 10926 (KLR) (19 September 2024) (Ruling) and urges the court to protect the minor from the confusion and destabilization which will result from shifting him from the home he has known all his life to a new one. The Respondent’s Submissions 25. The respondent submits that the applicant has not demonstrated that he stands to suffer substantial loss if the orders of stay of execution are not issued. The respondent argues that no harm will be occasioned on the applicant if the minor herein is placed under her custody as she has never demonstrated any ill motive towards the child. The respondent further argues that the applicant has demonstrated that he cannot stay with the child and that is why he intentionally took the child from the mother and placed him under the actual custody of the paternal grandparents as their relationship turned sour. 26. The respondent relies on the case of Bhutt vs Bhutt Mombasa HCC No. 8 of 2014 (O.S) and submits that the general principles for stay of execution must be complemented by consideration of the best interests of the child in accordance with Article 53(2) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19794/eng@2025-02-27 3

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27. The respondent submits that as the biological mother, she has the best interests of the child as opposed to the applicant, the biological father who has placed the child under the actual custody of the paternal grandparents whereas both the minor’s parents are alive. The respondent argues that it was on that ground that she has always asked to have custody of the child but the applicant has always frustrated any efforts towards an amicable solution to the issue therein. 28. The respondent submits that the court should consider that the interests of the child is superior than the interests and wishes of the parents in children cases. The respondent further submits that she is stable enough to provide good shelter and all the other needs of the child. 29. The respondent submits that the trial court considered every factor as provided in the Children Act before granting actual custody of the minor to her. 30. The respondent argues that the applicant is not acting in good faith as he has annexed a forged birth certificate which was proved by the verification report from the National Registration Bureau in Thika which confirmed that the birth certificate she holds is the true one. 31. The respondent submits that the applicant has a history of not complying with court orders as evidenced in the lower court proceedings and that this is another calculated move to frustrate implementation of court orders. The Law Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 32. 33. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:1. “No appeal or second appeal shall operate as a stay of execution or proceedings 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 orders 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 1st 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. Beyond the requirements of Order 42, this being a matter concerning children, this Honourable Court is enjoined by the Constitution of Kenya 2010 and the Children Act to consider the best interests of the children. The Constitution of Kenya 2010 provides at Article 53(2) that:A child’s best interests are of paramount importance in every matter concerning the child. 34. The Children Act on the other hand provides at Section 8(1) that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19794/eng@2025-02-27 4

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In all actions concerning the children, whether undertaken by public or private or social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 35. As was observed in Bhutt vs Bhutt Mombasa HCCC No.8 of 2014 (OS), 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 an overriding consideration of the best interests of the child in accordance with Article 53 (2) of the Constitution which provides:In exercising its jurisdiction to grant stay of execution, the High Court is required by Order 42 Rule 6(2) of the Civil Procedure Rules to be satisfied that:- 36. a. The applicant will suffer substantial loss if stay is not granted; b. The application for stay has not been brought without undue delay; and c. The applicant has provided security for the due performance of the decree. Similarly in Z.M.O vs E.I.M. [2013] eKLR Musyoka J. stated:As a matter of principle, grant of stay of execution of maintenance orders in children’s cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind, once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. 37. The applicant argues that the minor stands to suffer substantial loss as the custody order seeks to uproot him from his familiar environment home he has known all his life to a new life. 38. On perusal of the evidence of the parties, it is evident that the minor has lived with the applicant and the applicant’s parents in Kakamega since the year 2020. The minor has lived separately from the respondent for a period of 7 years. During that time the respondent has not been denied access to the minor and she averred that she has visited him on several occasions. Furthermore, the minor has lived with the applicant for over 7 years and he is attending school as required. The minor has friends and relatives around him providing a friendly and a stable environment. Furthermore, the child was interviewed by a children officer and he stated that he goes to school at Mbare Shalom Academy and he lives in Kakamega with his father and grandparents. He further stated that he is comfortable staying where he is at the moment. The orders of the lower court granting custody of the minor to the respondent are yet to be implemented. The child is still with the applicant at the home of the applicant and that of his parents. If the orders for stay are denied, the applicant would suffer substantial loss in that the appeal could either change the status quo or confirm it. Bearing in mind that the outcome of the appeal is unknown at the moment, moving the minor to the respondent’s home for a limited time and taking him back in the event that the appeal is successful, would result in destabilizing the minor who is in school and comfortable at the home of the father at the moment. For the foregoing reasons, I am of the considered view that the applicant has demonstrated substantial loss. The movement to the respondent’s home will adversely affect the minor and the applicant as well. 39. Judgment in the lower court was delivered on 7th November 2024. The applicant filed his Memorandum of Appeal and the current application on 19th November 2024. Thus it is my considered view that the application was filed timeously. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19794/eng@2025-02-27 5

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40. The grant of stay of execution is discretionary and this court shall exercise its discretion depending on the circumstances of the case and while balancing the rights of the parties to ensure justice. Relying on Section 95(3) of the Children’s Act, it is my considered view that granting stay of execution would militate against the best interests of the children herein. Section95(3) provides:In any proceedings in which an issue on the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to be prejudicial to the welfare of the child. 41. I am also persuaded by the decision of Z.M.O. vs E.I.M [2013] eKLR where the court held:“ The solution ideally lies in expediting the disposal of the appeal and staying the matter before the children’s court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before the arguments are heard from both sides on the merits of the same.” 42. In the interests of justice and in the best interests of the child herein it is my considered view that this matter be given a hearing date on priority basis, for expeditious disposal of the appeal. Conclusion 43. In my considered view this application dated 18th November 2024 is successful, , and it is hereby allowed. 44. Being a family matter, each party will meet its own costs. 45. It is hereby so ordered. RULING DEIVLERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19794/eng@2025-02-27 6

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