MTK v HKC (Civil Appeal E120 of 2025) [2026] KEHC 6115 (KLR) (Family) (29 April 2026) (Ruling) Neutral citation: [2026] KEHC 6115 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) FAMILY CIVIL APPEAL E120 OF 2025 CJ KENDAGOR, J APRIL 29, 2026 BETWEEN MTK ........................................................................................................... APPELLANT AND HKC ....................................................................................................... RESPONDENT (Being an Appeal from the Ruling of the Honourable Mr. Bernard Ochoi, Chief Magistrate, Children’s Court, Milimani Law Courts, dated and delivered on 17th July, 2025 in Children’s Case No. MCCHCC/E1226 of 2024) RULING 1. The Appellant and the Respondent are involved in a Children’s Case No. E1226 of 2024 before the Nairobi Children’s Court involving the minor LL. Upon the appeal being lodged, the matter was referred to mediation, but the mediation was unsuccessful. 2. This ruling is a determination of an application dated 6th August, 2025, which seeks a stay of execution pending appeal. The Appellant is dissatisfied with the orders made in the ruling delivered on 17th July, 2025. 3. The orders are as follows; i. The Respondent shall present the minor D.L., also known as L.L., for DNA testing at a certified government or court-appointed institution within 14 days of this ruling to determine the paternity of the minor; ii. The costs of the DNA test shall, in the first instance, be borne by the Applicant, but may be subject to refund by the Respondent should paternity be confirmed; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6115/eng@2026-04-29 1
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iii. Any orders on access, parental responsibility, or custody shall await the outcome of the DNA results and will be determined based on the child’s best interests at that time; iv. Each party shall bear their own costs of the application. 4. The application is supported by an affidavit sworn by the Appellant. The Respondent opposes the application and filed a replying affidavit sworn on 21st August, 2025. 5. Having considered the grounds on the face of the application, affidavits in support, response from the Respondent, and submissions by both parties, I find that the issue for determination is whether the Appellant has met the threshold for the grant of stay of execution orders. 6. In Francis Muthusi Malombe & 7 others v Daniel Kaloki Malombe & 9 others [2022] eKLR, the Court discussed the import of Order 42 Rule 6 (i) of the Civil Procedure Rule, and held as follows; 35. 7. 8. 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. (iv) Such security as the court may order for due performance of such decree or order as may ultimately be binding on him. In cases involving children, courts must prioritize the child’s best interests. It must also exercise extreme caution when reviewing stay-of-execution applications in children-related matters. This special jurisprudence was advanced by the Court in Akello v Wamuri (Miscellaneous Civil Application E122 of 2022) [2024] KEHC 3610 (KLR) (8 March 2024) (Ruling), where the Court observed as follows; “ 26. While considering stay of execution in respect to children matters, beside the above, the Court has to consider the best interest of the child. The applicant is expected to demonstrate that the minors will suffer if a stay is not granted. 27. It is now trite that, in applications for stay in respect of decrees or orders made in matters involving children, the welfare of the children in question be given utmost consideration.” I have examined the parties’ positions in light of the above legal principles. The decision of the trial Court compelled the Appellant to avail the minor LL for DNA testing at the Respondent’s instance. 9. Unless the Court grants a stay, the minor will be required to undergo the DNA testing prior to the hearing of the appeal, yet the appeal specifically challenges the orders regarding this DNA testing. 10. The fundamental principle guiding this matter is that the well-being and interests of the child take precedence over the desires of the involved parties. In light of the Appellant’s interest in pursuing an appeal, it is imperative to acknowledge that permitting the appeal to proceed to a hearing and a determination on its merits offers the child a crucial opportunity for the fundamental issues on DNA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6115/eng@2026-04-29 2
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testing, which directly affect him, to be addressed on appeal. Allowing for a substantive examination of the appeal ensures that the child’s welfare is prioritized and protected. 11. In conclusion, I am convinced that the Appellant has made out a case for the grant of an order for stay. The application dated 6th August, 2025 is allowed. The orders issued on 17th July, 2025 are stayed pending the hearing and determination of the appeal. The costs of the application shall abide by the outcome of the appeal. 12. The appeal shall be heard on a priority basis, and to this end, the appellant shall file the record of appeal within 30 days. 13. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 29TH DAY OF APRIL, 2026. HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms. Opiyo Advocate for the Respondent No attendance for the Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6115/eng@2026-04-29 3
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