High Court 6119 of 2026

3. That the learned magistrate erred in law and in fact by not finding that parental responsibility is a shared responsibility and heaping most the responsibilities upon the Appellant. 4. That the learned magistrate erred in law and in fact by failing to render reasons for her decision in awarding excessive child maintenance against the Appellant. 5. That the learned Magistrate misdirected herself by failing to consider the evidence and the submissions by the Appellant while arriving at the judgment. 6. That the Honourable Learned Magistrate erred in law and facts in relying on extraneous evidence in arriving at the decision on the general damages. 4. He asked the Court to review, vary, and set aside the order directing him to pay child support in the sum of Kshs.30,000.00/= per month. 5. Alongside the Appeal, the Applicant brought the instant application dated 17th July, 2025, in which he sought the following orders; 6. a. Spent. b. Spent. c. That there be a stay of execution of the Judgment of the Milimani MCCHCC No. E541 of 2024 herein pending the hearing and determination of the appeal. d. That in the interim and pending the determination of the appeal, the Applicant be allowed to continue paying school fees and cater for other school related expenses for the Minors. The Application was canvassed by way of written submissions. Applicant’s written Submissions 7. The Applicant submitted that he will suffer substantial loss unless the stay is granted. He submitted that the Kshs.30,000.00/= he been ordered to pay monthly represents 33% of his monthly income and this leaves him without means to meet his own subsistence needs, obligations, or to provide for the Minors’ school fees and school related expenses in a substantial manner. 8. He argued that he risked execution proceedings, including attachment or committal to civil jail, which would defeat the very welfare of the Minors the order is intended to protect. He argued that there is also a danger of the Minor’s school fees going unpaid due to financial strain on his part, thus going against the core principle of the best interest of the child. Respondent’s written Submissions 9. The Respondent submitted that the Applicant has not met the conditions stipulated for grant of stay of execution, arguing that he had failed to show substantial loss. She argued that the Applicant has not established factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. For these reasons, she submitted that the application should be dismissed. Lastly, she argued that in the spirit of fair hearing, the Court should expeditiously admit the Applicant’s appeal for hearing on priority basis. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6119/eng@2026-04-29 2

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Issues for Determination 10. Having considered the grounds of appeal, the application, and the submission by the parties, I find that the singular issue for determination is whether the Applicant has met the threshold for grant of stay of execution. 11. The principles governing the grant of an order for stay pending appeal are set out in Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules which provides as follows: (2) No order for stay of execution shall be made under sub-rule (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. 12. I have considered the Grounds of Appeal from which it is evident that the Applicant was particularly dissatisfied with the order requiring him to pay Kshs.30,000.00/= monthly towards the maintenance and upkeep of the Minors. This means that the Applicant seeks to stay the execution of a money decree. 13. In the case of Kenya Shell Limited vs. 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 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.’’ 14. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6119/eng@2026-04-29 3

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15. Based on these authorities, it can be deduced that an Applicant seeking the stay of execution of a money decree must demonstrate that the adverse party will be unable to refund the Decretal sum if the appeal were to succeed. 16. The Applicant did not directly adduce evidence to show that the Respondent will be unable to refund the Decretal sum if the appeal were to succeed. The much he stated in his supporting affidavit was that the Respondent has an income. 17. However, the Respondent herself, in her replying affidavit dated 23rd September, 2025, deponed facts which painted a picture that she would be unable to refund the Decretal sum if the appeal were to succeed. She stated that she has meager earnings of net monthly salary of Kshs.53,414.00/= and that she has no other source of income. She stated that she has taken out multiple loans from her chama and the loans have accumulated to such extent that her credit score has deteriorated, rendering her ineligible for further financial assistance or credit. 18. I have also seen her affidavit of means dated 16th August, 2024 and filed at the lower court in which she stated that she has taken very many mobile money loans and her credit score has deteriorated. Going by the Respondent’s own averments, I find that it is more likely than not that the Respondent will be unable to refund the Decretal sum if the Applicant’s appeal were to succeed. 19. There is no doubt that the application was brought without delay and that the Applicant is willing to provide any security that the Court will direct him to pay, should it consider it fit to order the stay. 20. However, even though the Applicant has met all the requirements that are necessary for the grant of stay of execution, this Court appreciates that this is a child matter and thus the need for the court to exercise more caution when making the final determination on whether to grant the stay of execution. The need for more caution is desirable in children matters because the stay of execution should not violate the best interest of the Minors. 21. At this stage and based on the materials placed before the Court, there were doubts in the mind of this Court on whether a stay of execution at this stage would violate the best interests of the Minors. Based on this eventuality, in my view, the benefit of these doubts should go to the Applicant and the Minors. 22. Consequently, I find that the application is merited and the same is allowed, but on the condition that the Applicant shall in the interim pay Kshs.10,000.00/= monthly to the Respondent pending the hearing and determination of this appeal. This Court has exercised extreme caution not to tinker with the quantum of maintenance at this stage because such would amount to determining the appeal before arguments are heard from both sides on the merits of the appeal. Thus, the Kshs.10,000.00/= to be paid to the Respondent has nothing to do with the merits of the appeal. 23. Should the Appellant succeed in his appeal, the said Kshs.10,000.00/= monthly payments will not be refundable to him because the interim payments will not go to the personal benefit of the Respondent, but rather to the general welfare of the Minors, who are their children. 24. The said stay only relates to the part of the judgment directing him to pay Kshs.30,000.00 monthly. The stay does not affect the rest of the orders granted by the lower Court in the judgment dated 15th July, 2025. Disposition 25. The Application for stay is allowed, albeit with a condition that the Applicant shall in the interim pay Kshs.10,000.00/= monthly to the Respondent pending the hearing and determination of the Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6119/eng@2026-04-29 4

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26. The said stay of execution only relates to the part of the judgment directing the Applicant to pay Kshs.30,000.00/= monthly. The stay does not affect the rest of the orders granted by the lower Court in the judgment dated 15th July, 2025. 27. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 29TH DAY OF APRIL, 2026. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Mr. Kimotho Advocate holding brief for Obera Advocate for the Respondent No attendance for the Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6119/eng@2026-04-29 5

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