Dml v Rnm

5. The applicant further depones that, in order to safeguard the substratum of the appeal, there is a need to stay the order requiring him to pay the maintenance and upkeep of the minor pending determination of the appeal. 6. The applicant also filed a supplementary affidavit dated 5th August 2024 and a further affidavit dated 6th November 2025, in which he reiterates and reinforces the averments in his supporting affidavit. 7. In opposition to the application the Respondent filed a Replying Affidavit dated 26th August 2024. 8. She contends that the application is legally untenable and contrary to well-established principles of law governing matters relating to children, in which the best interest of the child are the primary and paramount consideration, as enshrined in Article 53(2) of the Constitution of Kenya. 9. The respondent further depones that the applicant is not being truthful and is misleading the court as to the true circumstances of the case. 10. She avers that she does not receive any financial support from ASM’s biological father, having severed ties with him at the behest of the Applicant, who subsequently assumed parental responsibility for the minor. She further, states that the applicant has not produced any proof to support the allegation that she receives such payments. 11. The respondent maintains that the orders issued by the trial Court were made for the benefit and welfare of the subject minors and not for her personal benefit. She asserts that the obligation to provide for the minor’s maintenance and upkeep cannot be stayed as doing so would be detrimental to their welfare and educational needs. 12. I have read and considered the Notice of Motion application, the replying affidavit and further affidavits filed by the parties. The parties opted to rely solely on their affidavits and not file any submissions. 13. The only issue for determination is whether this is an appropriate case for the grant of an order of stay of execution pending Appeal. 14. The application is brought under Order 42 Rule 6 of the Civil Procedure Rules. Rule 6 (2) sets out the conditions for grant of stay of execution pending appeal, in the following terms; “ 6(2) 15. 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.” In the present matter, however, the Order sought to be stayed concerns the maintenance and welfare of children. As such, the above statutory requirements must be considered alongside the overriding constitutional imperative that the best interest of the child are of paramount importance. This https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6343/eng@2026-04-27 2

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principle was succinctly articulated in Bhutt vs. Bhutt, Mombasa HCCC No. 8 of 2014 (OS) where the Court stated as follows: “ 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 an overriding consideration of the best interest of the child in accordance with the injunction of Article 53(2) of the Constitution..." 16. Accordingly, the court must be satisfied not only that the threshold under Order 42 Rule 6 is met, but also that the grant of stay would not prejudice the welfare, education and general well-being of the minors concerned. 17. On the first limb, this court notes that the application was filed timeously. There is no evidence of inordinate or unreasonable delay, and this requirement is therefore satisfied. 18. On the question of substantial loss, the Applicant contends that he will suffer prejudice if stay is denied, primarily on the ground that recovery of monies already deducted from his salary would be difficult should the appeal succeed. He also alleges that the Respondent will continue to unjustly enrich herself by receiving maintenance from both him and the biological father of ASM. 19. However, in applications relating to children, it is not sufficient for an applicant to merely demonstrate personal financial prejudice. The applicant must also demonstrate that the children themselves would not be adversely affected if the stay is granted. In LDT v PAO [2021] eKLR, the Court held as follows: “ 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. 20. In the present application some of the orders sought to be stayed include: a. payment of school fees and purchase all school-related materials for the minors as per the School Fee Structure of the respective schools; b. Monthly payments by the Applicant to continue and to be taken into account against the fees due; c. payment of arrears of school fees accrued since the inception of this suit in 2018. 21. In effect, the applicant seeks to suspend or halt his contribution towards the to the minors’ school related expenses. Such suspension would directly interfere with the children’s education. Educational needs are continuous and cannot be deferred or held in abeyance pending the outcome of an appeal. To do so would undoubtedly occasion prejudice to the minors and offend the constitutional dictate under Article 53(2). 22. There are two minors involved, namely ASM. and AM The trial court found, following DNA evidence, that the Applicant is the biological father of AM, a finding that is not challenged in the appeal. The dispute on appeal relates to ASM., with the Applicant contending that he is not legally obliged to maintain her as she allegedly receives support from her biological father. Whether the Applicant acquired parental responsibility over ASM. and is legally obligated to maintain her is a substantive issue that can only be resolved upon the hearing and determination of the appeal. Pending that determination, the court must ensure that the child’s welfare is not compromised. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6343/eng@2026-04-27 3

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23. On the requirement of security, the Applicant has expressed willingness to comply with any conditions the court may impose. Given the nature of the dispute, and bearing in mind that the orders relate to maintenance and education, the court is satisfied that the Applicant’s continued payment of school fees and school‑related expenses constitutes adequate security for the due performance of any decree that may ultimately be binding upon him. 24. In the result, and having balanced the competing interests, the court makes the following orders: a. Stay of execution is granted only in respect of the trial court’s order requiring payment of backdated school fees arrear of school fees since inception of the suit. b. For the avoidance of doubt, the Applicant shall continue to pay the current school fees and purchase all school‑related materials for the minors. c. The appeal to be heard and determined expeditiously and on a priority basis, d. Costs shall be in the cause. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 27TH DAY OF APRIL, 2026 RHODA RUTTO JUDGE In the presence of; ………………………… for Appellant ………………………… for Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6343/eng@2026-04-27 4

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