Dbi v Amn

The Applicant’s case 5. The Appellant depones that prior to the impugned Judgment, the minor had, for a period of about five years, been residing with him during school terms while the Respondent exercised weekend access, and that the said arrangement ensured stability in the minor’s education and welfare. 6. He avers that following the Judgment, the change in custody has disrupted the minor’s routine, affected his schooling, and curtailed communication between himself and the minor. He further attributes the timing of the Application to delay in obtaining the Judgment from the Court registry. 7. The Appellant filed written submissions in support of the Application dated 13ᵗʰ February, 2026. On the issue of delay, it was submitted that although the Judgment was delivered on 26ᵗʰ January, 2026, the same was not immediately available, and despite a request made on 27ᵗʰ January, 2026, it was only availed on 12ᵗʰ February, 2026. It was contended that the Application was filed on 13ᵗʰ February, 2026, one day after receipt of the Judgment, and therefore without delay. 8. On whether stay of execution should issue, reliance was placed on Article 53(2) of the Constitution and Section 8(1)(a) of the Children Act, 2022 on the paramountcy of the best interests of the child. The Appellant further cited Order 42 Rule 6 of the Civil Procedure Rules and the decision in Bhutt v Bhutt Mombasa HCCC No. 8 of 2014 (O.S.), for the proposition that in children matters, the principles for stay must be applied alongside the best interests of the child. 9. It was submitted that the minor had, for a period of five years prior to the Judgment, resided with the Appellant during school terms, and that the change in custody had disrupted the minor’s schooling, routine and general wellbeing. The Appellant contended that unless stay is granted, the minor’s education, extracurricular activities and communication with the Appellant would be adversely affected. 10. On the prayer for interim custody, it was submitted that the Appellant had previously had actual custody of the minor, ensured school attendance, facilitated access, and supported the minor’s academic and extracurricular development, and that it would be in the best interests of the minor for the previous arrangement to be restored pending appeal. 11. On whether the appeal is arguable, the Appellant submitted that the trial court failed to consider the counterclaim dated 17ᵗʰ September, 2024, failed to take into account the prior custodial arrangement, and made orders on maintenance and medical cover without due consideration of the evidence. It was further submitted that the award of Kes 30,000 per month exceeded the amount sought in the Plaint dated 9ᵗʰ September, 2024. The Respondent’s case 12. The Respondent contends that the Application is misconceived and amounts to a re-litigation of matters already determined by the trial Court. She depones that she assumed actual custody of the minor on 27ᵗʰ January, 2026, and that the minor has since settled well under her care. It is her position that the Application has been overtaken by events, that it was filed with delay, that the Appellant has failed to comply with the maintenance orders issued by the trial court, and that no substantial loss has been demonstrated. 13. The Respondent also filed written submissions opposing the Application. It was submitted that the Application is an attempt to re-litigate issues already determined by the trial Court, and that at this stage the Court ought not to delve into the merits of the appeal. Reliance was placed on In re YAAA, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6122/eng@2026-04-28 2

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AAAA & MAA (Minors) [2023] KEHC 19890 (KLR) and HMI v KBH [2023] KEHC 1194 (KLR) for the proposition that the Court should not re-evaluate evidence at the interlocutory stage. 14. On the requirements for stay under Order 42 Rule 6(2) of the Civil Procedure Rules, it was submitted that the Appellant had failed to demonstrate substantial loss, had filed the Application with delay, and had not furnished security. It was contended that the Judgment was available on 28ᵗʰ January, 2026, and that the Application was filed on 24ᵗʰ February, 2026, thereby constituting inordinate delay. 15. On compliance with the decree, it was submitted that the Appellant had failed to comply with the maintenance orders of Kshs.30,000/= per month. Reliance was placed on LAK v COO [2024] KEHC 7968 (KLR) and HMI v KBH [2023] KEHC 1194 (KLR) on the principle that a party seeking equitable relief must come to Court with clean hands. Further reliance was placed on MN v TAN & another [2015] KEHC 7013 (KLR) on the obligation to obey Court orders. 16. On the issue of stay in children matters, the Respondent cited ZMO v EIM [2013] KEHC 5590 (KLR) for the proposition that stay of maintenance orders should be granted only in rare cases as it is contrary to the best interests of the child. 17. It was further submitted that the Application had been overtaken by events as the Respondent took actual custody of the minor on 27ᵗʰ January, 2026 and that the minor had since settled. Reliance was again placed on In re YAAA, AAAA & MAA (Minors) [2023] KEHC 19890 (KLR) on the need for stability in the life of a child. 18. On substantial loss, it was submitted that the Appellant had not demonstrated any loss he would suffer, and that he continued to enjoy access to the minor. Reliance was placed on HMI v KBH [2023] KEHC 1194 (KLR). 19. The Respondent further submitted that the allegations regarding her health, the minor’s schooling, appearance, and welfare were not substantiated, and that the evidence on record demonstrated that the minor was well cared for. Reliance was placed on FHI v ASA [2025] KEHC 14273 (KLR) and In re YAAA, AAAA & MAA (Minors) [2023] KEHC 19890 (KLR) on the requirement that allegations must be supported by evidence. 20. On the whole, the Respondent urged the Court to find that the Application does not meet the threshold under Order 42 Rule 6 of the Civil Procedure Rules and to dismiss it with costs. Analysis & Determination: 21. 22. Having regard to the pleadings of the parties, the issues for determination may be culled out as follows:a) Whether the Application dated 13ᵗʰ February, 2026 meets the threshold for the grant of a stay of execution order pending the hearing and determination of the appeal under Order 42 Rule 6 of the Civil Procedure Rules; b) Whether, pending the hearing and determination of the appeal, the Court should interfere with the custody orders of the trial court; and c) Who should bear the costs of the application. Order 42 Rule 6(2) of the Civil Procedure Rules provides that: “ No order for stay of execution shall be made under subrule (1) unless— https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6122/eng@2026-04-28 3

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(a) 23. 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.” In matters concerning children, these requirements are not applied in isolation. They are to be read together with the constitutional command under Article 53(2) that: “ A child’s best interests are of paramount importance in every matter concerning the child.” 24. This position has been affirmed in Bhutt v Bhutt Mombasa HCCC No. 8 of 2014 (O.S.), where the Court held: “ 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 overriding consideration of the best interest of the child in accordance with Article 53 (2) of the Constitution.” 25. I will therefore consider the three limbs under Order 42 Rule 6 (2), bearing in mind the overriding principle of the best interests of the child. 26. On delay, the Judgment sought to be appealed against was delivered on 26ᵗʰ January, 2026. The Application is dated 13ᵗʰ February, 2026. The Appellant attributes the interval to delay in obtaining a copy of the Judgment, stating that although a request was made on 27ᵗʰ January, 2026, the Judgment was only availed on 12ᵗʰ February, 2026. The Respondent, on the other hand, contends that the Judgment was available on 28ᵗʰ January, 2026 and that the Application was filed much later. 27. The period between 26ᵗʰ January, 2026 and 13ᵗʰ February, 2026 is not, in itself, inordinate. I am satisfied that the Application was filed without unreasonable delay. 28. On substantial loss, the Appellant contends that the change in custody has disrupted the minor’s routine, schooling, extracurricular activities and communication, and that unless stay is granted, the minor’s welfare will be adversely affected. The Respondent disputes these assertions and maintains that the minor is settled, attending school, and well cared for. 29. Suffice to state, the Court is not at this stage called upon to determine the merits of those competing positions. As was stated in HMI v KBH [2023] KEHC 1194 (KLR): “ As to whether the applicant is likely to suffer any substantial loss, he did not state any specific loss he is likely to suffer as an individual save for the claim that the best interest of the child will not be served if custody of the minor is granted to the mother and that the child's studies will be disrupted….What substantial loss will the applicant suffer by complying with a lawful court order? I do not see any.” 30. The loss so contemplated under Order 42 Rule 6 (2) must be real and demonstrable. From the record before me, the Appellant’s complaint is directed at the effect of the orders on the minor. That is a matter that properly falls for consideration within the appeal itself. It does not establish substantial loss within the meaning of the Rule. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6122/eng@2026-04-28 4

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31. Further, the evidence on record shows that the Appellant continues to enjoy access to the minor pursuant to the orders of the trial Court. There is therefore no demonstrated deprivation of his parental rights that would amount to substantial loss. 32. On security, there is no proposal placed before the Court by the Appellant. More importantly, it is not disputed that the trial Court ordered the Appellant to pay monthly maintenance of Kshs.30,000/= and the Respondent has deponed that the Appellant has not complied with that order. 33. It is trite that a party seeking equitable relief must comply with existing Court orders. In MN v TAN & another [2015] KEHC 7013 (KLR), the Court stated: “ A valid court order has to be obeyed or complied with regardless of how aggrieved a party is about it. The order has the force of law. It is not a mere wish or proposition. Disobedience or non-compliance with it attracts severe consequences….The appellant has applied to the court for a discretionary relief, yet he is not ready to obey the orders that he is seeking relief against it. He has therefore come to court with unclean hands. The court cannot exercise discretion in favour of such a litigant who has no respect for the rule of law.” 34. Similarly, in LAK v COO [2024] KEHC 7968 (KLR), the Court observed: “ It is trite that he who comes to equity must come with clean hands. It is duplicitous of the Applicant to approach this court seeking to stay orders, which she has in any event disobeyed.” 35. In this matter, the Appellant seeks to stay orders of maintenance while at the same time not complying with them. That position weighs against the exercise of discretion in his favour. 36. There is a further and more decisive consideration. The decree sought to be stayed includes an order for maintenance. Our Courts have consistently held that stay of maintenance orders in children matters is rarely granted. In ZMO v EIM [2013] eKLR, the Court held: “ As a matter of principle, grant of stay of execution of maintenance orders in children’s cases should be made in very rare cases, I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child…” 37. That principle accords with Article 53 (2) of the Constitution. Maintenance is for the benefit of the child. Suspending it would directly affect the child’s welfare. 38. Taking all the above into account, I am not satisfied that the Application meets the threshold set under Order 42 Rule 6 (2) of the Civil Procedure Rules. The Appellant has not demonstrated substantial loss, has not addressed the requirement of security, and seeks to stay orders whose suspension would not be in the best interests of the minor. 39. The issue is therefore answered in the negative. 40. On the third issue, the Appellant seeks, in addition to stay, orders placing the minor in his actual custody pending the hearing and determination of the appeal. In effect, the Court is invited to vary https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6122/eng@2026-04-28 5

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the custody orders issued by the trial court at an interlocutory stage. The applicable principle remains that set out under Article 53 (2) of the Constitution, that: “ A child’s best interests are of paramount importance in every matter concerning the child.” 41. A Court must therefore approach such a request with caution, bearing in mind that custody orders are not to be lightly disturbed unless it is clearly demonstrated that the welfare of the child so demands. 42. It is not in dispute that by the Judgment delivered on 26ᵗʰ January, 2026, actual custody of the minor was granted to the Respondent, with the Appellant being accorded access on alternate weekends. It is further not disputed that the Respondent assumed actual custody on 27ᵗʰ January, 2026 and that the minor has since been residing with her pursuant to that order. 43. The Appellant now urges the Court to restore the prior arrangement under which the minor resided with him during school terms, contending that the same had ensured stability in the minor’s education and general welfare. The Respondent, on her part, maintains that the minor has settled in her care and that any further movement would be disruptive. 44. At this stage, this Court is not sitting as an appellate court regarding the merits of the Judgment. It is not tasked with re-examining the evidence presented in the trial Court or making final decisions on custody. These issues are reserved for the appeal process. This position was stated in In re YAAA, AAAA & MAA (Minors) [2023] KEHC 19890 (KLR) where the Court held: “ At this stage the court is not required to delve into the merits or demerits of the intended appeal. All the court is required to determine is whether the prayer for stay of execution is merited.” 45. The minor is presently in the Respondent’s custody pursuant to a valid Court order. To grant the orders sought would have the effect of moving the minor once again, within a relatively short period, pending the determination of the appeal. In considering whether such movement would serve the best interests of the child, the Court must have regard to the need for stability, continuity and predictability in the life of a child. 46. In In re YAAA, AAAA & MAA (Minors) [2023] KEHC 19890 (KLR), the Court further observed: “ I do not feel it is in the best interests of the minors to keep moving them from one parent to the other. Children require stability and predictability in their lives in order to thrive.” 47. The Appellant has raised concerns regarding the minor’s schooling, routine and general welfare. However, those are matters that are contested and which fall to be determined on the merits of the appeal. At this stage, they do not justify upsetting the existing arrangement. 48. The minor remains under the care of a parent to whom custody was lawfully granted, and the Appellant continues to enjoy access in accordance with the orders of the trial Court. In the absence of demonstrated exceptional circumstances, and bearing in mind the need to preserve stability for the minor, I am not persuaded that it would be in the best interests of the child to interfere with the custody orders of the trial court pending the hearing and determination of the appeal. 49. In the circumstances of this case, and taking into account the nature of the proceedings, I find that the appropriate order on costs is that each party shall bear their own costs of the Application. Disposition: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6122/eng@2026-04-28 6

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The Notice of Motion dated 13ᵗʰ February, 2026 is without merit and is hereby dismissed. For the avoidance of doubt: 50. a. The minor shall remain in the actual custody of the Respondent in terms of the Judgment delivered on 26ᵗʰ January, 2026. b. The orders of the trial court issued on 26ᵗʰ January, 2026 remain in force, including the orders on maintenance, school fees and related obligations, and the Appellant is expected to comply therewith. c. Each party shall bear their own costs of the Application. Orders accordingly. DATED, DELIVERED and SIGNED at NAIROBI through thE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 28TH DAY OF APRIL, 2026. HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms Maina, Advocate for the Appellant/Respondent Mr Oguye, Advocate holding brief for Mr Kimani, Advocate for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6122/eng@2026-04-28 7

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