[2025] KEHC 5713 (KLR)

[2025] KEHC 5713 (KLR)

The court found that the applicant failed to satisfy the mandatory conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. Although the application was filed without undue delay, the applicant did not demonstrate that he would suffer substantial loss if the stay was not granted, focusing instead on the potential disruption to the children. The court emphasized that in matters involving children, the best interest of the child is paramount. The evidence showed that the children had been in the respondent's custody for a longer period and were only with the applicant for a short time. The court held that the emotional and psychological...

Citation
[2025] KEHC 5713 (KLR)
Parties
Appellant: Daniel Sande Atito; Respondent: Mariam Sande Atito
Court
High Court
Court Station
High Court at Siaya
Jurisdiction
Kenya
Judgment Date
8 May 2025
Case Number
Civil Appeal E009 of 2025
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
Application dismissed; interim orders of stay vacated; no order as to costs.
Judges
DK Kemei
Legal Topics
Child Custody, Best Interest of the Child, Stay of Execution, Parental Responsibility, Tender Years Doctrine
Source Language
English
Family and Children Civil Procedure Child Custody Best Interest of the Child Stay of Execution Parental Responsibility Tender Years Doctrine

Case Brief

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Parties

Daniel Sande Atito

Appellant

Mariam Sande Atito

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
  2. 2 Whether granting a stay of execution is in the best interest of the children involved.
  3. 3 Whether the applicant has demonstrated substantial loss and furnished security as required by law.

Ratio Decidendi

The court found that the applicant failed to satisfy the mandatory conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. Although the application was filed without undue delay, the applicant did not demonstrate that he would suffer substantial loss if the stay was not granted, focusing instead on the potential disruption to the children. The court emphasized that in matters involving children, the best interest of the child is paramount. The evidence showed that the children had been in the respondent's custody for a longer period and were only with the applicant for a short time. The court held that the emotional and psychological...

Court Disposition

Application dismissed; interim orders of stay vacated; no order as to costs.

Orders

  • The application dated 1/5/2025 is dismissed.
  • The interim orders of stay are vacated.