Gmm v Ywk

4. The Applicant depones that the ruling of the Court disrupted the said arrangements by directing that he was to have the minor on alternate weekends. He avers that the said ruling was arrived on wrong premise to wit that he was not providing the minor with appropriate accommodation since his home was invested with bedbugs and that he was involved in partying and alcoholism. 5. It is his case therefore that those reasons were not subjected to proper evidence as there was no report from the children’s office at all and that the affidavit of the previous house help was biased against him. 6. He therefore argued that for the interest of justice and the minor this Court should stay the lower Court’s ruling and revert to the mediation agreement which was fair to both parties. 7. The Respondent has opposed the application vide her replying affidavit dated 2nd June 2026. She argued that the application was made in bad faith as the orders issued were not detrimental to the minor nor the Applicant but instead were to preserve the health of the minor and more importantly his education. 8. That the trial Court was seized of the matter and issued the orders having albeit on interim basis heard the parties and prima facie found a case in favour of the Respondent and more importantly the minor. 9. That the application suggests this Court to make a merit-based decision yet the matter was still pending at the lower Court. Analysis And Determination 10. The Court directed the parties to file written submissions which they have complied and I have perused the same together with the cited authorities. 11. The application essentially comes under Order 42 rule 6(2) seeking stay pending appeal. The same states as hereunder; “ No order for stay of execution shall be made under subrule (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.” 12. The Applicant must therefore establish the above grounds for the orders to be issued. 13. I have perused the ruling by the trial Court and it appears to me that save for the variations of when each of them is to have the minor the rest of the details as contained in the mediation settlement are untouched. 14. For example, the issue of medical, education and the minors clothing remain largely unchanged. The application therefore for the Applicant’s salary not to be attached does not hold water if indeed he is expected to contribute half of the minor’s education as per the consent. 15. If there is an issue about the fees and other necessities then the best approach is to raise it before the trial Court and in this regard, I decline prayer on stopping the attachment of the Applicant’s salary. He signed to pay half of the minor’s education and if he has failed the law will obviously take its cause but as the rules of natural justice demands he must be heard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12087/eng@2026-07-30 2

page 2 of 3

16. More importantly is the issue of the alternative days of having the minor as directed by the Court. As clearly submitted the best interest of the child must be considered under all circumstances. It thus means that if the Court thinks that the grounds stretch beyond those provided under Order 42 rule 6 above, then it has the liberty under Article 53 of the Constitution as well as Section 8 of the Children’s Act to make further and better orders so as to secure the child’s interest. 17. Having stated so, I do not for now respectfully find any evidence to suggest that the Applicant will suffer any prejudice should the orders by the trial Court not stayed. 18. On the face of it he will still have the minor over weekends as ruled and the Respondent shall have a day-to-day custody especially when the child is schooling. In other words, he has not been precluded from having his son on alternate weekends. 19. I suppose the same extends to school holidays, where he will have the opportunity to stay with the minor as directed. 20. The other issues to do with his lifestyle or their lifestyle for that matter shall be tested during the substantive trial. The affidavits and their veracity shall be tested as well but for now I do not find any evidence that the Applicant shall suffer should the application be denied. 21. Neither will the matter at the appeal be rendered nugatory should the application be denied. 22. On the prayer for the Applicant’s passport, I think this matter did not feature at the trial Court and I shall not venture into it. If the Applicant finds it necessary then there is no offence in approaching the trial Court. 23. For now, I do not find any sufficient reasons pending appeal to stop the execution of the orders by the trial Court. The Applicant in any case will still have time to submit on this appeal during the substantive hearing of the same. 24. The application is otherwise disallowed and the interim orders set aside. 25. Having found so, I find the application by the Respondent dated 14th May 2026 seeking to set aside the interim orders moot. The same consequently is marked as compromised by this ruling. 26. Costs of both applications to await the outcome of the appeal. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 30TH DAY OF JULY, 2026. H.K. CHEMITEI JUDGE, FCIArb. FAMILY APPEAL NO. E034 OF 2026 RULING Page 3 of 3 po/ hkc https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12087/eng@2026-07-30 3

page 3 of 3