MIK v AG (Civil Appeal E034 of 2025) [2026] KEHC 6415 (KLR) (Civ) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 6415 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT ISIOLO CIVIL CIVIL APPEAL E034 OF 2025 SC CHIRCHIR, J MAY 7, 2026 BETWEEN MIK ............................................................................................................ APPELLANT AND AG ........................................................................................................... RESPONDENT RULING 1. The Appellant’s Notice of Motion dated 8th October, 2025, seeks for stay of execution of the Judgment delivered by the Senior Resident Kadhi at Isiolo, on 12/09/2025, in Divorce Case No. E032 of 2025 pending Appeal. 2. It is the Applicant’s case that that the appeal raises substantive issues; that he is apprehensive that the Respondent will execute the decree, which execution will render the Appeal nugatory. It is stated that execution of the decree arising therefrom will constitute substantial loss. The Respondent’s Case. 3. The Application is opposed. The Respondent states that the Judgment of the trial court was lawful, evidence- based, and the Muslim personal law on divorce, custody and maintenance was correctly applied. The Appeal therefore stands no chance of success. 4. It is further stated that the Applicant has failed to demonstrate any substantial loss; that the Applicant has not shown that he is unable to comply. 5. The Respondent asserts that the Kadhi Court had jurisdiction to entertain the issues of custody and maintenance of children as the said issues are integral to Muslim personal law on divorce and fall within “personal status” , as recognized in the numerous decisions of the courts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6415/eng@2026-05-07 1
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6. While pointing out that the case touches on the interest of child, it is argued that, in the event that stay is allowed, the Appellant should be compelled to deposit the arrears of maintenance costs and to continue meeting the current costs , pending Appeal. 7. The Application proceeded by way of Written Submissions. The Respondent’s Submissions are however not signed and therefore, I have not considered them for purposes of this Ruling. I have perused the Appellant’s Submissions are considered for purposes of the Ruling. Determination 8. An Applicant seeking stay of execution must meet the conditions set out under order 42 Rule 6 (2) of the Civil Procedure Rules. That is to say the Application must have been filed without undue delay; demonstration of substantial loss by the Appellant unless stay is granted; and finally, the Applicant must offer such security as will be sufficient to satisfy the decree in the event that the Appeal fails. It is also trite that the Appeal must be arguable. 9. In the present case, I am satisfied that the Application was brought without undue delay as it is evident that the Application was filed within one month of the date of delivery of the Judgment. 10. On Substantial loss, the Applicant has argued that allowing the execution to proceed will render the Appeal nugatory and that such loss cannot be compensated by costs. He has also relied on the decision in the Case of RWW vs EKW [2019] eKLR where the court held as follows: -“The purpose of an Application for stay pending Appeal is to preserve the subject matter in dispute so that the rights of the Appellant are safeguarded should the Appeal succeed.” 11. I have perused the Judgement, and observed that the Appellant was directed to pay Ksh. 200,000/= for general damages, dowry balance of Ksh. 60,000/=, maintenance cost arrears of Ksh. 80,000/= and a female cow of cash in lie and Ksh. 10,000/= for the maintenance of the child. I am satisfied that the award is fairly substantial and its payment will constitute substantial loss. 12. I am persuaded that the essence of stay is the preservation of the status quo, otherwise, as pointed out by the Applicant, the Appeal will be rendered nugatory. 13. However, the Ksh. 10,000/= monthly payment is for maintenance of the child. The welfare of the child is incapable of being put on hold, as the parents tussle on who should contribute more to his or her welfare. As to whether this amount was excessive would be a discussion best left to the Appeal but for now, that amount must be availed to take care of the needs of the child. 14. On whether the Appeal is arguable. The Applicant intends to challenge the jurisdiction of the trial court on the determination of custody and maintenance issues; for making an award of Ksh. 200,000/ = on general damages when there was no such plea in the pleadings, among other issues. The issues are arguable and an arguable Appeal does not necessarily mean one which must succeed. 15. In conclusion, I am satisfied to the condition that the maintenance of the child as aforesaid, , the Applicant has met the threshold of stay of execution pending Appeal. I therefore proceed to make orders as follows: a. Subject to order (b) below, there shall be stay of execution of the Judgment of Isiolo KCD No. 032 of 2025, pending the hearing and determination of the Appeal herein. b. The Appellant shall continue to pay Ksh. 10,000 to the Respondent for the maintenance of the child. The above shall be paid on or before every 10th day of the month and shall be paid to such Mpesa Account as shall be provided by the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6415/eng@2026-05-07 2
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c. Each Party to meet their own costs. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 7TH DAY OF MAY, 2026 S. CHIRCHIR JUDGE In the presence of:Roba Katelo-Court Assistant Mr. Keranda for the Applicant Mr. Jarso for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6415/eng@2026-05-07 3
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