Dms v Wmg

3. Thereafter, the Appellant filed an application dated 5th March, 2025 in which he asked for an order to facilitate registration of the minors under SHIF medical coverage and for an order directing the Respondent to avail the minors for an interview for admission in a public school. The trial Court delivered a ruling dated 10th July, 2025 on this application and allowed the change of schools for the minors. The trial Court directed that the minors complete their current academic grade at their present school and that the parties can mutually identify a suitable public or low-cost school for enrolment at the commencement of the next academic year/grade. The Court provided for either party to seek further intervention should they be unable to reach an agreement. 4. Notably, the trial Court reviewed the orders in its earlier ruling of 24th May, 2025 and directed that the outstanding arrears be settled as follows: a lump sum payment of Kshs.200,000/= to be made within 30 days, after which the Appellant is to pay the remaining balance in instalments of Kshs.100,000/= until the total amount is satisfied. 5. The Appellant, dissatisfied with the ruling, filed a memorandum of appeal dated 29th July, 2025, challenging the trial court’s orders on the payment of arrears. The Appellant contends that the trial court failed to take his financial capacity into account when apportioning the financial obligations and issuing the orders for payment of the arrears. 6. Concurrently, the Appellant filed the present application dated 29th July, 2025, seeking an order to stay the execution of the orders on payment of the arrears pending the hearing and determination of the appeal. 7. The grounds of the Application were enumerated on its face and supported by an affidavit dated 29th July, 2025 and a Further Affidavit dated 15th September, 2025 both sworn by the Appellant. The Applicant also filed submissions dated 1st October, 2025. The Applicant contends that the orders are punitive and impractical and that, unless the stay is granted, he shall suffer loss as he may be committed to civil jail or face distress that will occasion him hardship. 8. The Respondent filed a Replying Affidavit dated 5th September, 2025 and submissions dated 4th November, 2025 opposing the application. She argues that the application is made in bad faith and that the Applicant is using the Court process to avoid financial obligations towards the minors. She further argues that the arrears date back to 2024 and that the Applicant has not demonstrated a genuine effort to provide for the minors, nor bothered to take action to reduce the debt. 9. Having considered the grounds 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 Applicant has met the threshold for the grant of stay of execution orders. 10. 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. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6140/eng@2026-04-21 2

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(iv) 11. Such security as the court may order for due performance of such decree or order as may ultimately be binding on him. Courts must prioritize the best interest of the child in all cases. 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.” 12. I have examined the parties’ positions in light of the above legal principles. The arrears in question arise from a judgment issued by the children’s Court in 2024, which judgment remains unchallenged. 13. The lower Court’s record shows the appellant’s non-compliance. The claim that the threat of execution is imminent and significant is weakened if no arrangements are made to ensure the children’s fees are paid during the hearing and determination of the appeal. Without assurance of security or evidence of a commitment to pay even minimal past-due amounts or to meet ongoing fee obligations, granting a stay could result in greater harm to the minors involved. 14. In conclusion, I am not convinced that the Applicant has made out a case for the grant of an order for stay. The application dated 29th July, 2025, is dismissed and the costs of the application shall abide by the outcome of the appeal. 15. The appeal shall be heard on a priority basis, and to this end, the Appellant shall file the record of appeal within 30 days. 16. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 21ST DAY OF APRIL, 2026. …………………………….. HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms. Akinyi Advocate holding brief for Opulo, Advocate for the Appellant Ms. Mwangi, Advocate holding Omao, Advocate for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6140/eng@2026-04-21 3

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