Ass v Aos

He stated that upon his discharge, he received a Ruling notice on 12th February 2025 and sought the services of is current advocate now on record to act on his behalf as he was not able to handle the matter. 5. That his Advocate prepared a Replying Affidavit dated 13th February 2025 and orally applied to the court to have the same admitted out of time for reasons that he was unwell but the court declined to allow his application. He annexed the affidavit as ‘AS3’. He stated that he has been complying with the orders of the court all along and he was not in arrears at the time of filing his application before the Trial Court and even at the time of filing the Appeal and that he was condemned unheard and erroneously compelled to that which he had not failed to do. 6. He deposed further that he was ordered to refund to the Respondent Ks. 33,000/- which the Respondent incurred for his alleged failure to pay when he knows that any amount that was spent by the Respondent on the minor’s needs is from the amount that he regularly sent for the minor’s upkeep. That he is challenging the court’s decision to order a refund when there was a period he failed to make payment of monthly upkeep even when the children are at school 7. That he is apprehensive that if he doesn’t comply with the order for the refund of Kshs. 33,000/to the Respondent as ordered in the said ruling, he will be cited for contempt and that further, the court failed to consider the best interest of the minors and allowed the application for personal gain of the Respondent who failed to demonstrate that she went out of her way to spend in excess of the monthly upkeep that the court ordered the Applicant to pay to warrant the prayers sought. That the Respondent abused the court process to obtain the orders in her favour and not to further the best interest of the minors. 8. The Applicant deposed that he pays school fees for the minors, their holiday, their extra tutorial fees and also pocket money which amounts to much more than what the Respondent claims to have incurred. He annexed as AS4 proof of payment through the minor’s teacher. He stated that the impugned Ruling is against the principle of equal parental responsibility and that the Respondent has failed to understand what is meant by payment of monthly upkeep which is aimed at meeting the miscellaneous and petty expenses of the minors. 9. He deposed that the order is punitive and urged that the court does stay it. That he shall continue to make payment for the monthly upkeep in the best interest of the children. He stated that he has an arguable appeal with reasonable chances of success and shall suffer irreparable loss if the prayers sought are not granted. That the Application is brought in good faith, in the interest of justice and without undue delay. He prayed the court grants him the orders sought as prayed. Replying Affidavit 10. The respondent swore a replying affidavit dated 19th May 2025 opposing the application. The deponent averred that the Application lacks merit, falls short of the threshold required for the granting of injunctions and is therefore an abuse of the court process. That the contents of the Supporting Affidavit amount to a prosecution of the main appeal and not the interlocutory application. Further, that contrary to the Applicant’s allegations under paragraph 1 and 2 of the Supporting Affidavit, there is no implication by the court as the ruling was clear on what the Applicant ought to pay which was school related expenses. 11. In response to the allegations of sickness, she urged that the same are baseless as the documents thereto cannot be trusted having emanated from a clinic owned by the Applicant. That in any event, the question of sickness is not a factor in a question of granting or rejecting an application for stay pending appeal. She annexed and marked as ‘AOK a copy of the Business Registration certificate of the Clinic in the name of the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 2

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12. She denied the allegations as summarised in paragraphs 3-9 herein urging that the allegations therein cannot be advanced at this stage and should be the subject discussion of the main appeal and deposed further, that the Applicant used to make payment of the school related expenses but stopped abruptly thus exposing the minors and Respondent to unnecessary financial hardships. She stated that her Advocate on record informed her that the Applicant expressly communicated to him through WhatsApp messages that he will not pay for any school related expenses and that she can as well pay for them. She annexed and marks as AOK2 copies of the relevant WhatsApp screenshots 13. The deponent stated that the Applicant is a nurse running businesses under the name Eagle Health & Clinic Services hence he is a man of means and Ks. 33,000/- directed to his children’s education is negligible and his objection only acts as proof of bad faith and neglect of the plight of his children. That additionally, there exists a great risk that the subject minors will be prejudiced due to the actions of the Applicant as his continued refusal to pay school related expenses deny the baby parental care and love of their father under Article 53 of the Constitution which requires both parents to have equal parental responsibility to a child whether married or not. 14. The deponent averred that there is no threat of execution initiated by the her, that no orders have been extracted and the Applicant has not demonstrated any prejudice that he is likely to suffer or irreparable loss if he is required to make the payment as ordered by the court. Additionally, that if the appeal succeeds, the amount paid by the Applicant as school related expenses can be discounted from his monthly contributions and ensure the minors continue to get better education. She maintained that it is in the best interests of the children herein for the orders sought in this Application by the Applicant to be denied and the application be dismissed with costs. Applicants Submissions 15. Learned counsel for the applicant submitted that the law on procedure under Order 42 rule 6(2) of the Civil Procedure Rules, 2010 sets out three conditions that an Applicant must satisfy to warrant the grant of stay of execution pending appeal. On the first condition that the Application must be brought without undue or unreasonable delay, counsel urged that the impugned Ruling was delivered on 14th February 2025 while the Application was filed on 19th February 2025 and therefore the condition is fully satisfied. 16. As regards substantial loss, counsel urged that ruling of the trial court was based on assessment of what the Respondent termed as her out of pocket expenses towards minors' upkeep within the span of 1 year. He submitted that the Appellant was directed to meet medical and school related expenses which the Respondent claim he had not complied with but a perusal of the receipts shows those amounts are negligible and are for miscellaneous expenses which accumulated overtime to Kshs. 33,867/=. 17. That he has shown vide WhatsApp conversation with the teacher that he has always met the cost of minors' pocket money and shopping expenses. Further, that it is the Applicant's position that he has been providing the monthly upkeep without fail regardless of when the kids are at school (boarding) or at home on holiday, and it is much more that what the Respondent claims to have spent to meet obligations allegedly abdicated by the Appellant. 18. The Applicant contends that within the period under review, he provided Ks. 120,000/- in form of upkeep and the claim for Kshs. 33, 867/= is thus within the upkeep amount sent to the Respondent and thus cannot be claimed back as the said upkeep is meant for such types of expense, miscellaneous and emergencies. That unless the Respondent demonstrate that she had to go out of way to find other sources of funds to meet the claimed expenses, she is not entitled to an award of compensation for spending what the judgment and the court contemplated in awarded monthly upkeep of Kshs. 10,000/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 3

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= and would amount to double compensation. That in this regard, allowing execution to proceed will render this appeal nugatory and the Appellant will suffer prejudice and loss. 19. Counsel submitted that the prayer for stay is only with respect to the award of Kshs. 33,867/= and which will not affect the welfare in best interest of the minors as sworn by the applicant. This is because the compliance of the Judgment particularly on the part of the Appellant making monthly upkeep of Kshs. 10,000/= and payment of school fees and School related expenses and medical cover is continuing without any interruption and there has not been any complaint of non-compliance on the part of the Appellant. Further, that the Applicant has shown that he is committed to continuing with compliance of those directions as sworn under paragraph 15 of the supporting affidavit. 20. On the condition of security for the due performance of decree, counsel urged that the Applicant offers to furnish security by depositing the entire award of Kshs. 33,867/= in court or by securing the same in any other manner prescribed by the court. He urged the court to allow the application with costs. Respondent’s submissions 21. Learned counsel submitted that the subject matter is an application for stay of execution purportedly pending appeal but going through the orders being sought by the Applicant, one is left to wonder what exactly the Applicant is seeking for. That Prayer 2 as indicated in the application and reproduced in the Applicants submissions seeks for the following orders; “ That there be a temporary stay of execution of the ruling delivered on 14th February 2025, pending the hearing of this application inter-partes." 22. That Prayer 3 seeks stay of execution pending hearing and determination of the application as follows; “ That the Applicants be granted a temporary stay of execution of the ruling delivered on 14th February 2025, pending the hearing and determination of this Application" 23. Counsel pointed out that prayer 3 (above) actually seeks enforcement of the ruling pending the hearing of the appeal and which prayer they agree with. (On this aspect of the Respondent’s submission, it is important for the court to point out at this stage of summarising the parties’ submissions that even as the Respondents wish to belabour the point on the manner in which the Applicant’s prayer for stay pending the appeal has been couched, a look at the pleadings shows that their submissions should actually refer to prayer 4 and not 3 of the Applicant’s Application. This because it is prayer 4 as drawn that conforms to their submissions. The said prayer 4 seeks for the following orders; "THAT the Applicants be granted execution of the ruling delivered on 14th February 2025, pending the hearing and determination of the Appeal herein" The Respondents too then have also erred in their submissions. It is my view therefore, that just as Respondents too have erred by referring to the said prayer as prayer number 3 and not as prayer number 4 as drawn, in considering the Applicant’s prayer 4 in the context of the entirety of the proceedings, it is clearly apparent that the same as drawn amounts to a typographical error on the part of the Applicant. In light of the fact that the Respondent too has made a similar error is a testimony to the fact that such errors do occur and can be made by any of the parties as is the case here. Under the provisions of Article 159(2)(d) of the Constitution therefore, the court will not belabour the submissions on this point going forward.) 24. Counsel further submitted that Order 42 Rule 6 of the Civil Procedure Rules provides for a procedure and avenue where a party may seek an order of stay pending appeal, pointing out that it is a not a right of a party but an exercise of discretion by the court citing Matata & Another v Rono & Another (2024) KEHC 2799 (KLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 4

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25. On undue delay, counsel submitted that the impugned Ruling was delivered on 14th February 2025 and the application herein was filed on 19th February 2025 and they therefore concede that there was no delay in bringing the current application. 26. On substantial loss, counsel cited the case of RWW v EKW (2019) KEHC 6523 (KLR) and urged that through the application and the written submissions filed by the Applicant, they have painstakingly tried to find any iota of an explanation of the substantial loss the Applicant is likely to suffer if a stay order is not actually granted. That the Applicant has not even remotely demonstrated how execution of the ruling will prejudice him. Any loss or prejudice that he may suffer shall be compensated by way of reimbursement if the High Court makes a determination that he is not obligated to settle the amount. Counsel also urged that the Applicant has not demonstrated how he will suffer irreparable harm and cited the holding in James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR. 27. On security, counsel submitted that Order 42 Rule 6(2) (b) makes it mandatory for the Applicant to provide security for performance of the decree. However, the impugned ruling makes reference to a periodic payment that is not fixed in terms of school relate expenses. These are expenses that accrue every term either at the time of resuming or continuing school calendar. There is no way of determining how much expense shall be expended in a calendar term. In his submissions, the Applicant has offered to deposit Kshs 33,867/- as security. However, more expenses have been accrued and will continue to be accrued and the only best recourse is for him to pay the same to the Respondent. 28. Counsel urged that the application herein is a unique one in the sense that it does not refer to a stay of execution of orders in a commercial dispute. The impugned orders are in respect to minors in school and in continuous need of financial. Therefore, the ordinary test applied by the court before deciding to allow or deny stay of execution pending appeal must be subjected to the Constitutional test under Article 53 of the Constitution that enjoins the court to be guided by the best interest of the child. Counsel further submitted that the case law reveals that granting a stay of maintenance orders is against the best interest principle. That the best practice in addressing such an application where a child is involved, the court in the case of DOB v DMA (2021) KEHC 5536 (KLR) aptly held as follows; “ In matters concerning children, the best interests of the child are of paramount importance. The accepted principle in applications for stay of execution of maintenance orders in children's cases is that the suspension of the maintenance order is not in the best interests of the child.” 29. Counsel additionally cited the case of RWW vs. EKW Civil Appeal No. 13 of 2013 [2019] eKLR and the case of LAK v COO (Civil Appeal E056 of 2023) (2024) KEHC 7968 (KLR) in this regard. He maintained that the application dated 19th February 2025 is devoid of merit and an abuse of court process and must be dismissed with costs. Analysis & Determination 30. As correctly submitted by Counsel, the law governing applications for stay of execution is as provided under Order 42 Rule 6(2) which is to the following effect; (2) 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 5

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31. In determining matters involving children including an application for stay of execution as herein, alongside the standard requirements that a party seeking an order of stay as set out in the aforementioned Order 42 Rule 6 must satisfy, such applications must as a matter of necessity prioritize the best interests of the child over the rights or losses of the parents. The court must consider whether the child will suffer if the order is not stayed and further that the child will suffer substantial, often irreversible, harm if the order sought to be stayed is executed immediately. 32. This requirement that the best interest of the child is what is paramount is a Constitutional imperative and the same is expressly provided under Article 53(2) of the Constitution and also in Section 8(1)(a) of the Children Act as follows: Article 53(2) “A child’s best interests are of paramount importance in every matter concerning the child.” Section 8(1)(a) of the Children Act “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies— a. 33. the best interests of the child shall be the primary consideration;” These applicable principles in handling Applications for stay of execution in children’s matters were echoed by Murithi J in the persuasive case of Bhutt v. Bhutt, Mombasa HCCC NO. 8 of 2014 (O.S.) to be 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.” 34. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words: “ 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 judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse 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.” 35. The above said, Order 42 rule 6(1), order 51 rule 1, Section 1A, IB, 3A and 63(e) of the Civil Procedure Act. Section 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution which enjoins courts to administer justice without undue regard to procedural technicalities. In the instant case, the Applicant is seeking to stay orders whose purport is that he failed to fully comply with the orders of the maintenance of the minors who are the subject matter of this case and that the accumulated effect of his failure is that the Respondent incurred expenditure over time that accumulated to the amount of Ks. 33,000/- which the trial court ordered him to pay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 6

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36. He stated that he sought to have his explanation availed to court by way of a Replying Affidavit but his request was denied. In this regard he states that he was prejudiced and condemned unheard hence this application for stay pending the hearing of the appeal that he has filed. 37. The court has considered the issues raised as against the provisions of Order 42 Rule 6. On whether the application was filed timeously, in noting that the impugned Ruling was delivered on 14th February 2025 and this Application and the attendant Memorandum of Appeal were filed on 19th February 2025, the court is satisfied that there was no undue delay on the part of the Applicant in this regard. 38. On whether the Applicant has adequately and sufficiently demonstrated that he will suffer substantial loss if the stay that he seeks is not granted, based on a summation of the pleadings and submissions as herein, the long and short answer is that the Applicant has not at all demonstrated what loss, let alone substantial loss that he will suffer if the orders of stay are not granted. His assertion that he is prejudiced by these orders for reasons that he was condemned unheard in my considered opinion belong to the purview of the appeal and not this application. 39. On whether the Applicant has an arguable appeal, the court notes that his averment that during the hearing of the application before the trial court he was not present in court for reasons that he was unwell and that his subsequent attempts to be heard thereafter were denied by the court have not be rebutted and/or denied by the Respondent. The Respondent only states that his deposition that he was unwell during the hearing lacks merit because the hospital he states he was admitted in belongs to him. The fact that the hospital does belong to the Applicant may very well be true but this does not negate his deposition that he was unwell. Taking this into consideration prima facie, the court is satisfied that the Applicant has sufficiently demonstrated that he has an arguable appeal 40. All considered, the court is enjoined to reach a determination that will be in the best interest of the minors the subject matter of this case. In arriving at this decision, the court notes that the Applicant has stated that he shall continue to make payment of the monthly upkeep in the best interest of his children as ordered by the trial court. The court also notes that it has not been averred by the Respondent that even after the issuance of the impugned Ruling, the Applicant has stopped making the monthly remittances as ordered by the trial court. The Applicant also states that he is ready to deposit the amount of Ks. 33,000/- with the court whereas the Respondent on her part stated that she has not made any steps to execute the lower court decree in any way. 41. In this regard, the court is of the considered opinion that even as the Applicant has not satisfied the salient conditions for the grant of orders of stay of execution pending appeal he has sufficiently demonstrated that he has an arguable appeal to warrant the orders of that he seeks but upon conditions that will ensure that the best interests of children are safeguarded and guaranteed. 42. So as to ensure that the interest of the minors continues to be catered for even as the parents litigate over the appeal filed on its merits, the court hereby directs that the Appellant shall continue to make payment for the monthly upkeep of the minors as ordered by the trial court. Further, the Appellant is to deposit in court the Ks. 33,000/- the subject of the appeal, the court being the neutral party in this matter, within 30 days from the date of this Ruling 43. The upshot of the above then is that the Applicant’s Application for stay of execution is allowed subject to this condition being satisfied within the timeline provided. In the event that the Applicant fails to comply, these orders shall be deemed to have lapsed and the Respondent shall then be at liberty to proceed with execution. It is so ordered. READ DATED AND SIGNED AT ELDORET ON 20TH FEBRUARY 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 7

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E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1829/eng@2026-02-20 8

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