High Court 4068 of 2026

4. The Applicant was dissatisfied with the Judgment and appealed to this Court vide a Memorandum of Appeal dated 29th September, 2025. He listed the following Grounds of Appeal; 1. The learned trial magistrate erred in law and fact in evaluation of the evidence presented before Court, thereby wrongly awarding the Respondent a sum of USD 1,000 (Kshs.130,000) as monthly maintenance/alimony. 2. The learned trial magistrate erred in law and fact by awarding alimony to the Respondent in the sum of USD 1,000 (Kshs.130,000) per month, without sufficient consideration of the Appellant’s financial obligations towards the children and the running of the household. 3. The learned trial magistrate erred in law by awarding the Respondent a global sum as monthly maintenance/alimony without any basis or justification of the same. 4. The learned trial magistrate erred in law and fact by failing to appreciate and apply the wellknown principles of law to be considered with regard to payment of alimony/maintenance and arrived as a manifestly wrong decision in her consideration of the same. 5. The learned trial magistrate failed to properly apply the principles and precedents governing the award of alimony as established under the Marriage Act, 2014, regarding alimony awards and relied on legal misunderstandings. 6. The learned trial magistrate erred in law in failing to discern all the issues raised and failed to make determination on the same. 7. The learned trial magistrate erred in law in departing from the general rule that “Alimony or maintenance should not be granted unless it is established by evidence that the party claiming such alimony or maintenance is incapacitated to make his/her own earnings therefore deserved the support of the other partner” which principal in this instance was not demonstrated/ established. 8. The learned trial magistrate erred in law by awarding alimony/maintenance for a period of 2 years without any justification for the same. 9. The learned trial magistrate erred in law and fact by failing to adequately balancing the needs of the Respondent and the ability of the Appellant to pay the awarded alimony. 10. The learned trial magistrate did not properly evaluate the Appellant’s evidence and submissions on financial obligations and the hardship the award would cause. 11. The learned trial magistrate erred by not properly considering the Respondent’s earning capacity and ability to support herself, contrary to the principle of equal rights of spouses. 5. He asks the Court to set aside the part of the Judgment in respect to the payment of spousal maintenance and the resultant decree. 6. Alongside the Appeal, the Applicant filed the instant application dated 1st October, 2025, seeking stay of execution of a part of the Judgment pending the hearing and determination of the Appeal. He particularly sought to stay the part that directs him to pay spousal maintenance of USD 1,000 (Kshs.130,000) per month. 7. The Application was canvased by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4068/eng@2026-03-19 2

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Appellant’s written Submissions 8. The Applicant submitted that the application meets the legal threshold for stay of execution of orders as required by Order 42 Rule 6 of the CPR. He submitted that he stands to suffer substantial loss unless the order is made, arguing that the appeal has reasonable chances of success and that, if the stay is not granted, the appeal will be rendered nugatory. He argued that he faces a real risk of job insecurity and possible redundancy due to the funding cuts at the United Nations following directives by President Donald Trump. 9. He argued that unless the stay is granted, he will suffer hardship as he is shouldering all the family obligations and if he loses his job, he will be unable to pay the Respondent alimony, with the risk of the Respondent commencing proceedings against him. He submitted that this will expose him to the risk of execution and to irreparable financial prejudice. 10. On the issue of security, he submitted that he has given security as the Court orders for due performance of such decree or order as may ultimately be binding on him. He stated that he was willing to furnish such security as this Honourable Court may order. Lastly, he submitted that he has brought the application without unreasonable delay, arguing that the judgment was delivered on 11th September, 2025, while the instant application is dated 1st October, 2025. For these reasons, he argued that he has met the threshold for the requirements of stay to be granted and urged the Court to grant the same as prayed. Respondent’s written Submissions 11. The Respondent submitted that the Applicant has not met the threshold for stay, arguing that he did not demonstrate any substantial loss that he is likely to suffer if the stay is declined. She submitted that his claims and fears are speculative, arguing that he had not tendered any evidence to corroborate his assertion that he faces the risk of job insecurity and possible redundancy. She argued that the Applicant is unlikely to face redundancy due to his high-ranking position at the United Nations, and that in any event, by virtue of his years at the United Nations, he would be entitled to substantial terminal benefits and pension. 12. On the issue of security, she submitted that the Applicant has not tendered any security for the due performance of the decree. She acknowledged that the Applicant has averred that he is willing to furnish security if directed by the Court. However, she argued that, in the absence of any concrete proposal or provision of security, she had no assurance of recovery should the appeal fail, especially given that spousal maintenance is needs-based and required to meet immediate living expenses. Issues for Determination 13. Having considered the application, the various affidavits, and the submissions by the parties, I find that there is only one issue for determination; a. Whether the Applicant has met the threshold required to stay execution of judgment. 14. Courts have found that the purpose of stay of execution pending appeal is to preserve the subject matter of the Appeal, with a view to ensuring that the Appeal is not rendered nugatory. The Court in RWW v EKW [2019] eKLR held this view and observed as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4068/eng@2026-03-19 3

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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.’’ 15. The law governing stay of execution is Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows: “ No order for stay of execution shall be made under sub rule (1) unless- 16. (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. Courts have interpreted the above provisions and have established conditions that an Applicant has to satisfy to warrant a grant of stay of execution. In Francis Muthusi Malombe & 7 others v Daniel Kaloki Malombe & 9 others [2022] eKLR, the court discussed the import of Order 42 Rule 6 of the Civil Procedure Rules, and held as follows; 35. I have already cited the provisions of Order 42 Rule 6 (i) of the Civil Procedure Rule above. It is clear from the cited Rule that in the 1st instance, the court appealed from may for ‘‘sufficient cause’’ order stay of execution. Granted that a stay of execution is discretionary matter, this court must be satisfied that the following conditions are met by the applicant: (i) He/she must show a good cause, (ii) He/she must show that a substantial loss may result unless the stay is granted, (iii) He must show that there is no unreasonable delay in filing the application for stay, and (iv) Such security as the court may order for due performance of such decree or order as may ultimately be binding on him. 17. In the instant case, the Applicant submitted that he stands to suffer substantial loss unless the order is made, arguing that the appeal has reasonable chances of success and that, if the stay is not granted, the appeal will be rendered nugatory. The Respondent, on the other hand, submitted that the Applicant had not proved he is likely to suffer any substantial loss if the stay is not granted. Thus, the first issue for determination is whether the Applicant has demonstrated that he is likely to suffer substantial loss in case the stay is not granted. 18. In the case of Kenya Shell Limited v Benjamin Karuga Kabiru & Another [1986] KLR, the Court of Appeal established the standard for what constitutes "substantial loss" in money decrees. It observed as follows; “ It is not sufficient by merely stating that the sum of Shs20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4068/eng@2026-03-19 4

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order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment. The applicant has not given to court sufficient materials to enable it to exercise its discretion in granting the order of stay.’’ 19. I associate with the observations of the Court in Njuguna v Ngware, Njoroge & Kinuthia t/a Jofremic Investment [2026] eKLR, where the Court discussed how an applicant should prosecute an application for stay of a money decree. It observed as follows; 42. In an application for stay of a money decree, the Applicant must show that the Respondent would not be in a position to refund the decretal sum if the appeal were to succeed. Generally, the courts are reluctant to stay a decree that involves only the payment of money. The rationale is that money is a fungible commodity—it can be replaced. If a party pays the money now and wins the appeal later, they can be refunded. Therefore, the mere payment of money does not usually constitute substantial loss. If a decree is purely monetary, a stay is refused unless it is shown that the Respondent would be unable to refund the money if the appeal succeeds. 20. Based on these authorities, it can be deduced that an applicant seeking the stay of a money decree must demonstrate that the adverse party will be unable to refund the Decretal sum if the appeal were to succeed. 21. There is no doubt that the subject matter of this appeal is a money decree. Having established the law and the legal principles that govern this dispute, I now turn to the instant application and look at its merits to determine whether the Applicant has established that the Respondent will be unable to refund the Decretal sum if the appeal were to succeed. 22. I have seen the Applicant’s supporting affidavit as well as the further affidavit. In both affidavits, the Applicant averred that he had been informed that the Respondent had secured a job at the Albanian Embassy, but admitted that he did not have documentary evidence to prove the same. He also averred that, in any event, the Respondent is capable of securing employment to maintain herself. He acknowledged that she did not have a work permit, but maintained that, pursuant to the Kenyan government’s recognition of Kosovo as an independent state on 26th March, 2025, she can apply for a work permit. 23. I have also considered the Respondent’s replying affidavit. She averred that she is in Kenya on a dependant pass and that her immigration status does not permit her to secure permanent and pensionable employment. She also stated that, in any event, it would be extremely difficult to obtain employment given the 14-year gap in her resume. She also stated that it would be difficult for her to secure a remote job, given her lack of consistent work experience. She went on to state that she has been forced to rely heavily on her family for financial assistance, a situation that has caused them (her family) significant strain. 24. Based on the above facts, the applicant did not, himself, tender evidence to show that the Respondent will be unable to refund the Decretal sum if the appeal were to succeed. However, the Respondent, through her replying affidavit, made several averments that demonstrate she might be unable to refund the Decretal sum if the appeal succeeds. She deponed that she is not financially stable at the moment and that she did not foresee the likelihood of securing employment (even remote job) in the near future. She stated that she relies heavily on her family, which is equally straining. 25. Based on the Respondent’s own averments in the replying affidavit, I am persuaded to find in favour of the Applicant. On a balance of probabilities, I find that it is more likely than not that the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4068/eng@2026-03-19 5

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will not be in a position to refund the Decretal sum if the appeal were to succeed. This finding is based on the Respondent’s own admission of financial instability at the moment, and particularly her pessimistic view on her chances of securing a job in the future. In my view, this is sufficient proof that the Applicant is likely to suffer substantial loss if the stay is not granted. 26. On the question of security, the Applicant stated that he was willing to furnish such security as this Honourable Court may order. In determining the security, I associate with the observations of the Court in Port Florence Community Hospital v Lakepharm Limited [2026] eKLR where it held as follows; “ The purpose of a security in a stay application is to preserve the subject matter of an appeal. The nature of the security is in the discretion of the Court. Like all other discretions, the same should not be exercised capriciously but judiciously. What really matters is that the Court has to ensure that the security offered comforts the successful party in the event an appeal is unsuccessful”. 27. This Court considered two options on the issue of security. One of them is whether it should order the Applicant deposit the Decretal sum in a joint interest earning account. The second option is whether it should order the Applicant provide/supply a bank guarantee. The Court in Port Florence Community Hospital v Lakepharm Limited (Supra) faced a similar dilemma and observed as follows; “ In the present case, either of the two modes proposed by the parties will be sufficient comfort for the respondent. It will be assured that if the appeal is unsuccessful, the decretal sum will be available and recoverable summarily. The route of bank guarantee is cheaper as the appellant will only have to pay to the bank to offer the same while depositing the decretal sum would entail being out of pocket for the entire sum. Accordingly, in the world of commerce, issuance of a bank guarantee for the decretal sum makes sense as the amount in the decretal sum is not paid out. All a party has to do is pay for it and have it guaranteed”. 28. In determining the most appropriate option in the circumstances, I have considered that the Applicant is already giving the Respondent shopping vouchers totaling Kshs.100,000.00/= per month. I have also considered that he is catering for the education expenses for their two children, which he claimed range from USD 30,000 to USD 35,000. Based on these factors, I find that an order directing the Applicant to deposit the Decretal sum would entail being out of pocket for the entire sum, and might cause instant hardship on him. For these reasons, I find that a bank guarantee is the most suitable in this case. 29. In the end, I opine that the Applicant should post a bank guarantee for half of the Decretal sum within 30 days of the date of this judgment. 30. The subject Court order directed the Appellant to pay the Respondent spousal maintenance at 1000.00 USD, that is Kshs.130,000.00/= per month for a maximum of 2 years or until the Respondent remarries whichever comes earlier. For the purposes of determining the Decretal sum in this case, this Court presumes that the Respondent will not remarry within 2 years of the lower Court’s judgment. Thus, in this Court’s calculation, the Decretal sum is approximately Kshs.3,120,000.00/=, and therefore half of the same is Kshs.1,560,000.00/=. 31. Lastly, there is no doubt that the application was brought without unreasonable delay. The judgment was delivered on 11th September, 2025, while the instant application is dated 1st October, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4068/eng@2026-03-19 6

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32. For these reasons, I find that the Applicant has met the threshold for stay to be granted. The upshot is that I find merit in the application dated 1st October, 2025, and the same is allowed. Disposition 33. The application dated 1st October, 2025, is allowed. 34. The Applicant is directed to post a bank guarantee for half of the Decretal sum within 30 days of the date of this ruling, in default execution to issue. Half of the Decretal sum is Kshs.1,560,000.00/=. 35. Costs shall abide by the outcome of the Appeal. 36. It is so ordered. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 19TH DAY OF MARCH 2026. …………………………… HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms Kalsi Advocate for the Appellant Ms Ndirangu Advocate for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4068/eng@2026-03-19 7

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