Pkg v Hnk (minor Suing Through The Mother and Next Friend Rwk)

was res judicata. He further averred that he got to learn that on the 23rd January 2025, a ruling was delivered in the suit by Hon. Charles Mutai, Chief Magistrate, in favour of the respondent without notice to his advocate, yet the ruling was originally scheduled for delivery on 20th January 2025. 4. The applicant further averred that his Preliminary Objection was overruled by the lower court, hence the instant appeal. He explained that there have been previous proceedings between the parties, including Judicial Review Case No. 163 of 2019 in which the Court held that the respondent’s only remedy lay in appeal against the judgment of Hon. R.O Mbogo in Children Case No. 203 of 2009. He therefore prayed for stay of proceedings pending the hearing and determination of this appeal. 5. In response to the application, the respondent filed Grounds of Opposition dated 21st March 2025, contending that: (a) The appellant’s Notice of Motion is fatally defective and an abuse of the process of the Court; (b) The orders sought serve no useful purpose in nature and are a waste of the Court’s precious time; (c) The appellant failed to satisfy the conditions for staying proceedings; 6. Accordingly, the respondent prayed for the dismissal of the application dated 6th March 2025. The respondent also filed a Replying Affidavit sworn by her on 21st March 2025. She averred that the subject minor herein is the biological daughter of the parties and was at the time in her care and custody. She annexed to her affidavit copy of the Certificate of Birth for the minor HNK and added that the appellant had deliberately continued to maintain errors in his pleadings in this appeal by citing Divorce Cause No. 716 of 2017; a matter that bears no connection with the parties. 7. The respondent further deposed that no formal application for stay of proceedings was ever filed before the lower court; and that the appellant had not demonstrated compelling reasons or shown what irreparable harm he stood to suffer if proceedings in the children's case in the Magistrate's Court in Homa Bay MCCHCC E007 of 2024 R W K v P K G were not stayed. She posited that the appellant was in no way prejudiced by being referred to Court Annexed Mediation to amicably resolve the issue of support for the minor. 8. The respondent then proceeded to respond to the appellant’s assertions regarding the proceedings in Judicial Review 163 of 2019: RWK v Hon. R.O. Mbogo Resident Magistrate Children 's Court, Milimani and the Attorney General; averments which are, in my considered view, peripheral to the issue at hand. She explained that her decision to institute the proceedings in Homa Bay MCCHCC No. E007 of 2024 was due to the appellant’s inconsistencies in extending support to the minor to the point of affecting her basic needs of food, education and medical attention. She annexed a copy of email communication between 26 August 2024 and 24 October 2024 demonstrating the refusal by appellant to pay for the minor's school lunch despite committing to pay. 9. Accordingly, the respondent averred that the appellant did not approach the Court with clean hands, given that he was already in disobedience of court orders and had failed to attend Court Annexed Mediation twice on 28 February 2025 and 6 March 2025 on claims that he had appealed the decision of the lower court. The respondent posited that the orders sought are likely to affect the minor adversely by denying her the much required parental support. 10. [10] According to the respondent, the appellant is merely out to evade his parental responsibility by delaying the lower court proceedings; and therefore the application is nothing but a waste of judicial time. She prayed for the dismissal of the application with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5170/eng@2026-04-17 2

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11. 12. As indicated herein above, the instant application was brought under Order 42 Rule 6 of the Civil Procedure Rules. It states: (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 order set aside. (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. Hence in appropriate cases, the Court has the discretion to grant stay of proceedings. In the Matter of Global Tours & Travels Limited WC No. 43 of 2002, Ringera, J. (as he then was) held as follows in a similar application: “ From a textual analysis of Order 41 rule 4 of the Civil Procedure Rules, it appears that the court has a discretion to order stay of proceedings pending appeal from its order or decree and that such discretion is unfettered. The strictures that sufficient cause be shown and that no order of stay should be made unless the court is satisfied that substantial loss may result to the applicant and that the application has been made without unreasonable delay and further that such security as may be ordered for the due performance of the order or decree has been given are on a plain reading of the rule applicable only to applications for stay of execution only.” 13. Likewise, in Jeremiah Matoke v Kenya Commercial Bank Ltd it was held that: “ …regarding stay of proceedings not execution of the decree or order, pending appeal, the issue of substantial loss need not feature or be argued. Not even security for due performance…” 14. The rationale for the distinction is clear in the following excerpt from Halsbury’s Laws of England, 4th Edition, Vol. 37 at page 330: “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5170/eng@2026-04-17 3

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15. Accordingly, in determining what the interests of justice require in the instant application, it is imperative to balance the interests of the parties; and in this respect, the holding in Global Tours & Travels Limited, which I entirely agree with, is pertinent, namely that: “ ...whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but on whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously." 16. With the foregoing in mind, I have given due consideration to the application, and note that, what is at stake is the best interest of the minor. In Mombasa HCCC No. 8 of 2014: Bhutt v Bhutt, for instance, the Court took the view, which I entirely agree with, that: “ 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 interest of the child in accordance with the injunction of Article 53(2) of the Constitution..." 17. Similarly, in K.W.M. vs. R.N. [2015] eKLR Hon. Muriithi, J. held “ …it is in very rare cases that courts grant stay of maintenance orders in cases involving minor children, where the duty to maintain a child is imposed on a parent by statute, as it is not in the best interests of the child to suspend a maintenance order particularly where parentage is not in dispute and that an expedited hearing of the main appeal might be a solution where there is a challenge on quantum of maintenance rather than staying the orders of the trial court pending appeal…” 18. In the light of the foregoing, I am convinced that, having balanced the interests of both sides to the subject application, the interest of justice would best be served by dismissing the application for stay of proceedings in favour of an expedited appeal. Accordingly, the Notice of Motion dated 5th March 2025 is hereby dismissed with an order that costs thereof be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED THIS 17TH DAY OF APRIL, 2026 OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5170/eng@2026-04-17 4

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