High Court 1200 of 2026

3. He further stated that there exists a DNA test report excluding him from the paternity of the minor, yet warrants have been issued against him. 4. He averred that the respondent has, by way of unlawful garnishee proceedings, obtained Kes 869,999/from his bank accounts, which amount is enough to cater for the minor for the next three years, and therefore the minor’s interests are not at stake. 5. He stated that his appeal has high chances of success and urged the court to allow the application as prayed. 6. In response, the respondent filed a replying affidavit sworn on 5th November 2025. She stated that the applicant has persistently disobeyed court orders requiring him to pay school fees and maintenance for the minor herein, resulting in accumulated arrears of approximately Kes16,000,000/-. The applicant has deliberately frustrated every effort to enforce compliance. 7. She stated that the warrants of arrest were issued after the applicant and his advocates absconded from court on the date fixed for confirmation of compliance with school fees payment. That she had personally communicated with the applicant’s advocate a day earlier regarding the order issued on 9th October 2025. 8. She disputed the DNA report relied on by the applicant and stated that the same is forged and does not originate from the official court –ordered test. That trial had already been ordered for a DNA test, which was to be conducted on 12th November 2025. Pending the DNA test, the order for maintenance and school fees remains valid and in force, and therefore, the applicant should be ordered to comply with them. 9. She termed the applicant’s actions as an abuse of court process and a violation of the child’s constitutional rights under Article 53 of the Constitution and section 4(2) of the Children’s Act. She urged the court to dismiss the applicant’s application as frivolous, vexatious, and an abuse of court process. 10. The applicant filed a further affidavit sworn on 11th November 2025. He stated that the hearing of the main suit in the trial court has not commenced, and therefore, there is no decree issued by said court ordering him to pay the purported sum. That an order for attachment of salary is one to be satisfied by the accounting officer of his employer and not himself, and therefore, he is not capable of failing to comply with the same. 11. He further stated that 2 or more modes of execution cannot as a matter of law be caused concurrently against the same party over the same subject matter, and further the garnishee proceedings are irregular and unlawful for reasons that there is no judgement and no decree issued by the trial court in respect of the suit still pending before it and that the garnishee were supposed to personally be effected against the garnishees, not him. 12. He reiterated that he is not the father of the child as per the DNA results of 26th June 2022, and that the money obtained from his accounts is more than enough to cater for the minor’s needs. He contended that the respondent has not produced any notice to show cause served upon him, nor has she produced any evidence to show that the DNA test results mentioned were forged. 13. When the matter came for hearing on 11th November 2025, Ms Kembe, learned counsel for the appellant/applicant, submitted that they are seeking a stay of execution on the grounds that warrants were issued without notice to show cause being issued. That the warrants were directed to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1200/eng@2026-01-27 2

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Kenya Navy Commander, a stranger to the application. That the warrants were issued on unclear circumstances and are therefore vague, as no 2 modes of execution can be in force at the same time. 14. She further submitted that the DNA report excluded the applicant as the father and that the main suit has not proceeded to warrant execution process. She urged the court to grant a stay of execution as the appeal will be rendered nugatory if the same is not granted. 15. Ms Risper, the respondent herein, reiterated her position in the affidavit and submitted that there was proper service and urged the court to order the applicant to pay school fees and maintenance, to also uphold the warrants, and dismiss the application in the best interest of the child. 16. Ms Kembe, in rejoinder, submitted that the amount garnisheed is Kes 869,998/-, and no explanation was given on how it was spent. The DNA report was given to the court directly and copies were given to the parties. 17. I have considered the matter and the submissions of the parties. What orders should be issued in this matter? 18. The law in Article 53(2) of the Constitution and Section 8(1) of the Children’s Act 2022 provides that the primary consideration in all matters concerning a child is the best interest of that child. Article 53 (2) of the Constitution states that: “ A child’s best interests are of paramount importance in every matter concerning the child.” Section 8(1) of the Children’s Act 2022 1. 19. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies— a. The best interests of the child shall be the primary consideration; b. The best interests of the child shall include, but shall not be limited to, the considerations set out in the First Schedule. The court in the case of LDT v PAO [2021] KEHC 2944 (KLR stated that:“ The principles for granting stay of execution in children matters was well settled in the case of Bhutt v. Bhutt , Mombasa HCCC NO. 8 of 2014 (OS), where the Court stated 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.” 20. On Stay of execution, the Civil Procedure Rules 2010 Order 42 Rule 6 (1) and (2) provides that:1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1200/eng@2026-01-27 3

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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 order set aside. 2. 21. 22. No order for stay of execution shall be made under subrule (1) unless— a. The court is satisfied that substantial loss may result to the 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. From the provision above, it is evident that in the issuance of stay of execution orders, the court has to consider three factors, namely: i. Substantial loss; ii. The application has been made without unreasonable delay; iii. Security. In discussing substantial loss, the court in the case of James Wangalwa & Another V Agnes Naliaka Cheseto[2012] KEHC 1094 (KLR) stated that: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 23. I have considered the arguments by both parties. The applicant has established that he will suffer substantial loss unless the order sought is granted. The warrants were issued Kenya Navy Commander for the production of the applicant before the court to show cause why the applicant should not be committed to civil jail for contempt of court for failure to comply with orders requiring him to pay maintenance and school fees. Although I would ordinarily be reluctant to interfere with maintenance orders pending appeal, the paternity of the child is highly contested. It is also likely that there has been attachment of a substantial amount of what is sought. In the circumstances of this cases execution of the impugned decision may be unjust and oppressive. My view is that the applicant has established that he will suffer substantial loss unless the orders sought are granted. 24. I am satisfied that the application was filed without undue delay and that an order requiring the applicant to provide security in children matters is not appropriate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1200/eng@2026-01-27 4

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25. In the circumstances, I find and hold that the application dated has merit. The same is hereby allowed. 26. I make no orders as to costs, as this is a children’s matter. 27. It is so ordered. DATED AND SIGNED IN MOMBASA THIS 27TH DAY OF JANUARY 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Ms Kembe, for the Respondent; Ms Risper Jerotich – pro se litigant; and Ms Bancy – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1200/eng@2026-01-27 5

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