Ewm v Cgm

v. vi. b. Shopping voucher arrangements; c. Educational placement of the minors; d. Co-parenting arrangements; and e. The Defendant/Respondent/father’s access be supervised. That pending the hearing and final determination of the plaintiff’s intended appeal to the High Court an order does issue by this Honourable court to preserve the status quo prevailing prior to the delivery of the said Ruling — particularly with regard to: a) Orders of maintenance of the children as per the Judgment of 25th October 2021; b) Shopping voucher arrangements; c) educational placement of the minors; d) Co-parenting arrangements; and e) The Defendant/Respondent/father’s access be supervised. That costs of this Application be in the cause. 2. The litigation history refiects a pattern of reactive applications and cross-petitions. Following the parties' separation in October 2020, a judgment was rendered on 25 October 2021, establishing a maintenance framework that required the Respondent to provide for school fees, a valid medical cover, and a monthly food shopping voucher of Kshs. 30,000/=. For several years, this arrangement functioned as the skeletal structure of the minors' upbringing, albeit one plagued by allegations of inconsistent compliance and administrative friction. In early 2025, the Respondent moved the trial court to review these orders, citing a drastic reduction in his income due to wrangles in his primary business, [Particulars Withheld] Products Ltd, and a desire to transfer the children to affordable schools. Simultaneously, the Applicant sought enforcement of the existing orders, complaining that the Respondent had made unilateral and unlawful deductions from the maintenance vouchers and had failed to provide the mandated medical insurance. 3. The trial court’s Ruling on 15 August 2025 attempted to balance these competing interests by ordering that the minors remain in their current school, [Particulars Withheld] School, only for the remainder of the 2025 academic year, after which they must be transferred or the Applicant must pay 50% of the fees. The trial court further allowed the Respondent to exclude non-food items from the shopping vouchers and ordered joint counselling at shared costs. It is these specific directives that the Applicant contends will cause irreparable harm to the minors if implemented before her appeal is heard. This Court must now determine if the threshold for a stay of execution has been met, viewed through the primary prism of the best interests of the children 4. The Applicant’s case for a stay of execution is predicated on the belief that the trial court’s Ruling acts as a destabilizing force in an already precarious family environment. She asserts that the transition ordered by the lower court—specifically regarding the cost-sharing of school fees and the potential transfer of the minors—ignores her reality as a non-salaried primary caregiver who has dedicated herself to the children's daily needs since 2020. Her submissions emphasize that the minors, particularly E in Grade 9 and P in Grade 6, are in candidate classes for national examinations. To subject them to the threat of school transfer or the humiliation of being sent home for fees during such a critical academic juncture is, in her view, a direct violation of their constitutional right to education and stability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5786/eng@2026-04-30 2

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5. Furthermore, the Applicant presents a narrative of safety concerns that borders on the existential. She alleges that the Respondent has embraced a traditionalist sect known as "Gwata Ndai," which she characterizes as an anti-Christian cult that advocates for Female Genital Mutilation (FGM) and other practices repugnant to the children's upbringing. She supports these allegations with copies of text messages where the Respondent allegedly renounces Christianity and threatens violence, including a specific incident in May 2021 where he allegedly attempted to break into the family residence while armed with a firearm. She argues that the trial court’s failure to address these safety risks while ordering joint counselling and facilitating access constitutes a failure to protect the minors from foreseeable psychological and physical harm. 6. Regarding the financial directives, the Applicant contends that the trial court erred by imposing a 50/50 cost-sharing burden without an Affidavit of Means or an inquiry into her actual ability to pay. She maintains that the Respondent has misrepresented his financial status, claiming he remains a man of vast resources who is the sole director of [Particulars Withheld] Company Limited and owns multiple rental properties across Kenya. Her argument is that the stay is necessary to prevent the minors from losing their current educational and medical support while the appellate court scrutinizes the legality of changing a long-standing maintenance decree without a proven change in material circumstances. 7. The Respondent resists the Application with equal vigour, positioning himself as a victim of parental alienation and a successful litigant who should not be deprived of his rights. He frames the trial court’s Ruling as a streamlining measure that brings the case in line with the constitutional principle of equal parental responsibility under Article 53(1)(e). He argues that parental responsibility is shared and that the Applicant, by claiming a total lack of income for 4 years, is hiding behind the children to avoid her own duties. 8. He asserts that the financial strain on his business, [Particulars Withheld] Products Ltd, is a legitimate reality supported by his inability to maintain the luxurious school fees previously ordered. He dismisses the Applicant's allegations of cult involvement and violence as character assassination intended to justify her contempt of court-ordered access. He points out that it has been 4 years since he has interacted with his children, a situation he blames entirely on the Applicant's mind poisoning and refusal to comply with structured visitation orders. 9. The Respondent’s opposition to the stay is further grounded in the "Clean Hands" doctrine. He submits that the Applicant has persistently misused the maintenance vouchers to purchase nonessential personal items, such as Sunlight detergents and expensive hygiene products, while the court order specifically limited the voucher to food and perishables. He argues that staying the lower court’s ruling would essentially legalize the Applicant's continued contempt and allow her to further alienate the children while he continues to bear 100% of the financial burden. He emphasizes that he has already paid the 2025 third-term fees, ensuring no immediate disruption to the children's exams, thus negating the claim of substantial loss. Analysis & Determination 10. The power to grant a stay of execution pending an appeal is a discretionary one, yet it is a discretion that must be exercised judicially and within defined principles. In ordinary civil litigation, the court is guided by the tripartite test set out in Order 42 Rule 6(2) of the Civil Procedure Rules: the presence of substantial loss, the absence of unreasonable delay, and the furnishing of security. However, the jurisprudence has established that in matters concerning children, this test must undergo a constitutional metamorphosis. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5786/eng@2026-04-30 3

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11. Article 53(2) of the Constitution mandates that a child’s best interests are of paramount importance in every matter concerning the child. This provision has been interpreted by our courts to mean that the welfare of the minor overrides the convenience, rights, or even the financial hardships of the parents. In the locus classicus case of Bhutt v Bhutt, Mombasa HCCC No. 8 of 2014, the Court held that the general principles of Order 42 Rule 6 must be "complemented by overriding consideration of the best interest of the child". This implies that even if an Applicant fails a technical limb of the civil test, the stay may still be granted if its denial would jeopardize a child’s livelihood or stability. 12. The concept of substantial loss in children’s matters is not merely about the loss of money; it is about the loss of welfare, the loss of educational continuity, and the exposure to trauma. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, Gikonyo J. clarified that the issue of substantial loss is the cornerstone of stay jurisdiction because such loss would render the appeal nugatory—meaning that even if the appellant eventually wins the case, they cannot be returned to the status quo ante. In the current application, the Court must ask: If the Applicant wins her appeal a year from now, but the children have already been moved from their school or have failed their exams due to stress, can that loss be repaired? The answer is invariably no! 13. The centrepiece of the Applicant’s fear is the potential disruption to the minors' education. Kenya’s educational system is currently in a state of transition, and the years Grade 6 and Grade 9 represent significant academic milestones where children are assessed for their transition to the next phase of learning. The trial court’s order allows the children to finish 2025 at Yari School but creates a mandatory transfer or a 50/50 fee crisis starting in January 2026. 14. The Respondent argues that since he has paid the term 3 fees for 2025, there is no immediate loss. This Court disagrees with that narrow interpretation. Anxiety is not a switch that can be fiipped off until January 1st. For children aged 12 and 15, the knowledge that their parents are fighting over their affordability and that they may be moved from their friends and teachers creates an atmosphere of psychological siege. As observed in ENK v SAN KEHC 18656, subjecting a minor who is preparing for national examinations to such uncertainty is substantial loss in its purest form. Academic potential is a fragile asset; once lost to trauma or disruption, it is rarely recovered. 15. Furthermore, the trial court’s directive to share fees 50/50 appears to have been made without a rigorous inquiry into the Applicant's financial capacity. While the Respondent claims business hardship, the Applicant has produced evidence showing his continued international travel and sole ownership of [Particulars Withheld] Company Limited. Conversely, the Respondent has not effectively rebutted the Applicant's claim of unemployment, other than asserting she should get a job. In JCW v LWK [2024] KEHC 8583, the Court noted that where a trial court fails to conduct a proper inquiry into the income of both parents before apportioning maintenance, such an order is often found to be unsustainable. Denying a stay here would force the Applicant into a financial obligation she arguably cannot meet, leading to the minors being sent home for fees—a result that BRO v WJNW [2020] eKLR warns is the very definition of prejudice to a minor's welfare. 16. Perhaps the most distressing aspect of this application is the shadow of the "Gwata Ndai" allegations and the firearm incident. The Applicant has deponed to a pattern of threats that culminated in a police intervention on 7 May 2021. The children have themselves provided written statements detailing their fear of the Respondent, his disparagement of their faith, and his insistence on traditional rituals that they do not understand. 17. Under section 23 of the Children Act, children have a mandatory right to protection from harmful cultural practices and any practice that is likely to negatively affect their life, health, social well-being, or psychological development. The Respondent's alleged membership in a sect associated with female https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5786/eng@2026-04-30 4

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genital mutilation is a grave accusation that our constitutional values cannot take lightly. While the Respondent denies these claims, the evidence of his messages—"To hell with Christianity" and "gun will do"—remains uncontroverted in this interlocutory stage. 18. In MAK v RMAA & 4 Others KESC 21, the Supreme Court emphasized that while the stability of having a relationship with both parents is beneficial, if circumstances warrant limited access to a parent, a court should order supervised access. The trial court’s Ruling did not vary the 2021 access orders but introduced a counselling requirement to restore the relationship. However, the Applicant argues that the counselling costs, like the school fees, are being unfairly shared when the need for counselling arose solely from the Respondent's erratic behaviour. More importantly, the Applicant challenges the lower court's failure to invite the voice of the child. 19. Section 11 of the Children Act and Article 53(1)(e) of the Constitution recognize the right of a child to participate in decisions affecting them. The children in this case, aged 12 and 15, are of sufficient maturity to have their views heard. Their written statements express a clear preference for staying in their current school and a deep-seated fear of being alone with the Respondent. In SM v SR KEHC 162, the Court held that one sure way of determining the interests of the child is to interview that child and weigh their views against all circumstances. The trial court’s apparent failure to engage with the minors directly before making orders that touch on their spiritual and educational identity is a procedural gap that warrants appellate review. Denying a stay would allow the implementation of counselling and access protocols that the children themselves have expressed psychological resistance toward, potentially leading to further re-traumatization. 20. The Respondent makes much of the Applicant’s alleged unclean hands, citing her purchase of detergents and sanitary pads with food vouchers. The trial court agreed with this assessment, allowing for deductions and warning the Applicant. While it is a trite maxim that "he who comes to equity must come with clean hands," this Court must interpret this rule in the context of child maintenance. 21. Maintenance, by its nature, is a holistic obligation. A child’s right to adequate diet under section 23 of the Children Act cannot be divorced from their right to sanitation and health. If the Respondent provides a Kshs. 30,000/= voucher for a family of three children and a mother, the purchase of Jik or Sunlight to keep the children’s clothes clean and their home sanitary is arguably as essential as the food itself. To label such purchases as a misuse of funds that disentitles a mother to a stay of execution appears to this Court to be a formalistic triumph of logic over compassion. In PSA v PNG KEHC 2463, the Court held that once parentage is undisputed, maintenance orders should not be suspended pending appeal where the appeal is on the quantum payable. By the same logic, this Court believes that a caregiver's minor administrative errors in voucher usage should not be used as a reason to deny a stay that protects the minors' academic and safety status. 22. Regarding security, the Respondent argues that the Applicant has offered none. In standard civil cases, security for the due performance of a money decree is a mandatory prerequisite. However, this is not a commercial debt; it is a welfare case. The Applicant is currently the sole provider of the actual custody labour—the physical, emotional, and social upbringing of three children for four years without the Respondent's presence. This labour has a value that exceeds the decretal amount in dispute. Furthermore, in family matters, the court often waives financial security where its imposition would further impoverish the minors. The minors themselves are the subject matter of the appeal, and their continued well-being is the best security the Applicant can offer to this Court. 23. In conclusion, the Court finds that the Applicant has satisfied the first limb of the test by demonstrating that the minors stand to suffer irreparable harm if the Ruling is executed now. The transition for Grade 6 and Grade 9 candidates is a one-time event; if it is marred by parental https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5786/eng@2026-04-30 5

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financial warfare, the damage to their academic results and self-esteem cannot be undone by a later court judgment. The safety risks—evidenced by the cult allegations and the Respondent’s armed confrontation history—constitute a potential for irreversible physical and psychological injury. 24. The Ruling was delivered on 15 August 2025, and the stay application was filed on 15 September 2025. A 31-day interval is not an inordinate delay in the context of family law, where parties often require time to manage the psychological fallout of a ruling and consult with counsel on complex constitutional grounds. The Applicant here acted with requisite promptness. 25. While no financial bond was posted, the Court takes judicial notice of the Applicant's ongoing role as the primary caregiver. To demand a cash deposit from an unemployed mother would be to invite the very substantial loss that the stay seeks to prevent. The Court is satisfied that the nature of the dispute permits a waiver of formal financial security in favour of preserving the status quo of care. 26. Accordingly, in the exercise of this Court's discretion and for the sake of the minors' welfare, I make the following orders: i. The Notice of Motion dated 15 September 2025 is allowed. The Ruling and orders of the Milimani Chief Magistrate delivered on 15 August 2025 in Children’s Case No. E498 of 2021 are hereby stayed in their entirety pending the hearing and final determination of the Applicant’s appeal. ii. The Respondent is directed to strictly comply with the maintenance framework established in the judgment and decree dated 25 October 2021. This includes the timely payment of full school fees and related expenses at [Particulars Withheld] School, the renewal of the minors' medical insurance cover, and the provision of the monthly food voucher of Kshs. 30,000/=. iii. The minors shall remain enrolled at [Particulars Withheld] School until the determination of the appeal. The Respondent, his agents, or assigns are restrained from unilaterally withdrawing or transferring the minors from their current educational institution. iv. Until safety concerns are addressed in the appeal, any access by the Respondent to the minors shall be supervised at a neutral location or in the presence of a professional counsellor agreed upon by the parties. v. The Sub-County Children’s Officer (Starehe/Ngara) is hereby directed to conduct an interview with the minors and file a comprehensive Welfare and Safety Report within forty-five (45) days. The report should specifically address the children's views on access, their religious identity, and their educational comfort. vi. The Applicant is directed to compile and file the Record of Appeal within thirty (30) days of this order. Failure to prosecute the appeal with due diligence will lead to the immediate vacation of these stay orders. vii. This being a family matter, and in view of the findings herein, the costs of this Application shall abide the outcome of the substantive appeal. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: for the Applicant: Mr Macharia https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5786/eng@2026-04-30 6

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for the Respondent: Ms Apolot Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5786/eng@2026-04-30 7

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