Kkm v Gwk

6. In the premises therefore, he urged the court to allow the appeal, set aside the decision of the trial court, and substitute it with any other relief that the court may deem fit to grant. He further prayed to be awarded costs of this suit. 7. This being a first appeal, it is the duty of this court to reconsider and to re-evaluate the evidence adduced and the arguments made by the parties before the trial court before reaching its own independent determination whether or not to uphold the decision of the trial court. In reaching its decision, this court is required to put in mind the fact that it neither saw nor heard the witnesses that testified at the trial (see Selle –Vs- Associated Motor Boat Co. Ltd. & Another [1968] E.A. 123). 8. In the present appeal, Miss Jane Nyabiage Odiya for the Appellant submitted that the trial court ignored the Appellant’s pleadings y. It was her submission that issuance of the commital order is contrary to the best interest of the child and his other four children and that the Court misapplied the burden and standard of proof by requiring to appellant to disprove ability to pay, and that there was non-complance of court orders and directions by the Appellant. The Respondent states stated that the Appellant is using the court process to avoid his responsibility of paying for the education of his child. ISSUES FOR DETERMINATION 9. The main issue for determination herein is whether the applicant has met the prerequisite for grant of stay of execution pending appeal. (i. Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 10. Having re-evaluated the facts of this case, it goes without saying that court orders are never issued in vain and the same must be heeded in order to uphold the rule of law. The Applicant’s assertion that the trial court did not take consideration of his pleadings, the record shows that all through the Appellant never had issues with the orders issued and no evidence was adduced by the Appellant nor has he disclosed any tangible reason to warrant a revision on how the sums owed to him ought to be paid nor has he demonstrated that the same has occasioned him any loss. 11. Moreover, the Applicant has not enclosed herein recent payslips to demonstrate that he is not in a position to sustain the ruling on the modification of the judgment. It is clear that the applicant is trying to run away from his parental responsibilities without any justifiable reason. Further the applicant wants to retain the position of being a person of a low income earner which is not the case. 12. The applicant has not provided any documentary evidence to show that he is married Moreover, the applicant states that he relies on one in a while consultancy as his source of income. 13. As a rule of thumb, an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. 14. Order 42 Rule 6 of the Civil Procedure Rules stipulates:1. “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10923/eng@2026-07-17 2

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person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside. 2. 15. 16. 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 1st 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. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that: a. Substantial loss may result to him/her unless the order is made; b. That the application has been made without unreasonable delay; and c. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal.The court said that: i. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. ii. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. iii. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. iv. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 17. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse. 18. Beyond the requirements of Order 42, this being a matter concerning children, this Honourable Court is enjoined by the Constitution of Kenya 2010 and the Children Act to consider the best interests of the Children. The Constitution of Kenya 2010 provides at Article 53(2) that:-A child’s best interests are of paramount importance in every matter concerning the child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10923/eng@2026-07-17 3

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19. The Children Act on the other hand provides at Section 4(3) that: In all actions concerning the children, whether undertaken by public or private or social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 20. As was observed in Bhutt vs Bhutt Mombasa HCCC No.8 of 2014 (OS), 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 interests of the child in accordance with Article 53 (2) of the constitution which provides:In exercising its jurisdiction to grant stay of execution, the High Court is required by Order 42 Rule 6(2) of the Civil Procedure Rules to be satisfied that:-a)The applicant will suffer substantial loss if stay is not granted;b)The application for stay has not been brought without undue delay; andc)The applicant has provided security for the due performance of the decree. 21. Similarly in Z.M.O vs E.I.M. [2013] eKLR Musyoka J. stated:“ 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, particularly in cases such as this one, where paternity is not in dispute. To my mind, once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable.” 22. Having said that, we shall examine whether the applicant in the case herein has satisfied the abovediscussed conditions. Substantial loss 23. Under this head, an applicant must clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of Shell Ltd vs Kibiru and Another [1986] KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows:“ The appeal is to be taken against a judgment in which it was held that the present respondents were entitled to claim damages….It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the high Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts….” 24. The learned judge continued to observe that:“ It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10923/eng@2026-07-17 4

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its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money. 25. Earlier on, Hancox JA in his ruling observed that:“ It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would…render the appeal nugatory.This is shown by the following passage of Cotton LJ in Wilson vs Church (No.2) (1879) 12 ChD 454 at page 458 where he said:-“I wish to state my opinion that when a party is appealing, exercising his undoubtedly right of appeal, this court ought to see the appeal, if successful, is not rendered nugatory. “As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.” 26. The applicant states the ruling apporting him parental responsibility he has suffered substantial loss because he cannot meet the child’s requirements as directed by the court. He further states that the he does have another family and thus he should be liable to cater for the child’s needs as directed by the court on 20th May, 2025. Notably, the applicant has not stated what substantial loss may occur to him if the stay orders are not granted. However as noted earlier, the best interests of the child are more paramount than that of the parties. The children’s interests supersede those of the parties as was enunciated in the case of C.K.K vs C.M.M. [2016] eKLR where the Judge stated: “ In the circumstances of this case it is Baby CMM and not the two protagonists who stands to suffer loss since we are not dealing with a material claim.” 27. .Likewise, in the instant case, it is the child and not the applicant who stands to suffer substantial loss if the orders issued are not followed. The rights of the children override the rights of the applicant and the applicant has not demonstrated to this court what substantial loss he will stand to suffer if the orders for stay are not granted. 28. I have also perused the ruling dated 20th May, 2025 and that the applicant was ordered to pay Kshs. 30,000/- together with school related expenses. 29. Thus the court was also clear that the notice to show cause was valid. Therefore on this ground the applicant’s grounds for substial loss fails. Security of costs. 30. The applicant ought to satisfy the condition of security. In the persuasive case of Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd [2019] eKLR the court observed:-“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10923/eng@2026-07-17 5

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31. Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. 32. The court would order for the release of the deposited decretal amount to the respondent in the appeal. 33. Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. 34. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.” 35. Similarly in Arun C. Sharma vs Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:“ The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” 36. From the above decisions, it is clear that the issue of security is discretionary and it is upon the court to determine the same. 37. Section 76 (2) of the Children Act sets out the general principles with regard to proceedings concerning children. It provides: “ In any proceedings in which an issue on the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to be prejudicial to the welfare of the child. 38. I am also persuaded by the decision of Z.M.O. vs E.I.M [2013] eKLR where the court held:“ The solution ideally lies in expediting the disposal of the appeal and staying the matter before the children’s court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before the arguments are heard from both sides on the merits of the same.” 39. Considering the best interests of the children in this application, the applicant has failed to demonstrate substantial loss as noted earlier in this ruling. 40. In the interests of justice and in the best interests of the children herein, the appeal herein fails and the orders of the Trial Court remain in force. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10923/eng@2026-07-17 6

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41. Accordingly, it is hereby ordered that the security deposit held in court be released to the Appellant forthwith. 42. There will be no order as to costs. It is hereby so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS .17th DAY OF …July ….2026. ____________ C.AKAIGWA JUDGE In the presence of Mr. Were for the Appellant N/A for the Respondent Nasra C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10923/eng@2026-07-17 7

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