Dnm v Jnm

Applicant’s Submissions 6. The Applicant contended that his financial circumstances have materially changed thereby limiting his ability to comply with the judgment. He added that execution proceedings, including risk of civil jail and attachment, may render the appeal nugatory. 7. It was the Applicant’s case that the appeal raises arguable points of law and fact. He stated that the proposed variation is reasonable, temporary, and intended to preserve the substratum of the appeal. 8. It was submitted that the orders sought are in the best interests of the minors. Respondent’s Submissions 9. The Respondent opposed the application on the grounds that it improperly seeks to vary or set aside a final judgment through interlocutory proceedings. She added that the Applicant has failed to make full and frank disclosure of his income, including funds from a family trust and earnings from a medical clinic. 10. The Respondent stated that the Applicant has deliberately failed to comply with court orders, including refusal to contribute to school fees. 11. It was the Respondent’s case that the Applicant has not demonstrated any substantial change in circumstances and that the application is brought without clean hands and is an abuse of the court process. She argued that granting the orders would prejudice the minors and undermine their welfare and stability. Issues for Determination 12. I have carefully considered the pleadings filed herein and the parties respective submissions. I find that the main issues that arise for my determination are: a. Whether this Court has jurisdiction to grant the orders sought. b. Whether the Applicant has met the threshold for grant of interlocutory relief pending appeal. c. Whether the orders sought are in the best interests of the minors. Analysis and Determination 13. On jurisdiction, it is not disputed that a valid judgment exists and that an appeal has been lodged. However, the Applicant seeks, through the present application, to vary substantive terms of the judgment. 14. While this Court retains inherent powers under Sections 1A, 3A, and 63(e) of the Civil Procedure Act, I find that such powers are limited to interlocutory relief and cannot be exercised to effectively determine or substantially alter a final judgment before the appeal is heard. 15. I find that the relief sought herein goes beyond interlocutory intervention but amounts to a substantive variation of judgment, which properly lies within the appeal. 16. On the threshold for interlocutory relief, I find that the Applicant has not satisfied the requirements for grant of interlocutory relief as the evidence on record reveals that the Applicant receives substantial income, including approximately Kshs. 800,000 monthly from a family trust, and has not disclosed additional earnings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4927/eng@2026-04-16 2

page 2 of 3

17. The Respondent has also stated that the Applicant has not complied with the existing court orders, particularly on contributing to school fees. This means that the Applicant has not approached the Court with clean hands, having withheld material information. 18. My finding is that the alleged risk of execution does not, in itself, justify variation of judgment terms. In this case, the balance of convenience favours maintaining the status quo as determined by the Children’s Court. 19. I find that the best interests of the minors, as provided under Section 8 of the Children’s Act, are paramount. It is my view that the current arrangements ensure stability in the minors’ schooling, residence, and welfare while the proposed variation introduces uncertainty and undermines that stability. 20. It is instructive to note that the Respondent has been forced to shoulder the financial burden due to the Applicant’s non-compliance. I find that in the circumstances of this case, granting the orders sought would be contrary to the best interests of the minors. 21. Having noted that the subject matter of this dispute concerns custody, maintenance, and welfare of minors, which fall squarely within the jurisdiction of the Family Division of the High Court, I find that it is appropriate that the matter be handled within that specialized division for the proper and expeditious administration of justice. 22. In sum, I find that the application lacks merit and I therefore make the following final orders: a. The Application is hereby dismissed in its entirety. b. The judgment of the Children’s Court dated 25th April 2025 remains in full force and effect. c. The Applicant shall comply with the terms of the said judgment forthwith. d. This matter shall be placed before the Family Division of the High Court for further directions and for purposes of hearing and determining the appeal. e. The appeal shall proceed on a priority basis. f. Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF APRIL, 2026. HON. W. A. OKWANY JUDGE 16/04/2026 For Appellant Bwire For The Respondent Njuguna Court Assistant Abdirizak Mention before the Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4927/eng@2026-04-16 3

page 3 of 3