https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7827

FGK v JKG (Minor) (Being sued through his mother and next friend SNM) (Civil Appeal E043 of 2025) [2026] KEHC 7827 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7827 (KLR) Republic of Kenya In the High Court at Nyahururu Civil Appeal E043 of 2025 LN Mutende, J June 4, 2026 In the matter of JKG (Minor) (Being sued through his mother and next friend SNM Between FGK Appellant and In the matter of JKG (Minor) (Being sued through his mother and next friend SNM) Respondent Ruling 1.This Applicant approached this court through a Notice of Motion dated 19.9.2025 seeking orders thus;a.Spentb.That pending the hearing and determination of this application interparties, there be a stay of execution of the ruling, orders and all consequential orders arising from Nyahururu CMC Children Case No. E009 of 2025 delivered on 4th September 2025.c.That pending the hearing and determination of this application interparties, there be a stay of proceedings in Nyahururu CMC Children Case No E009 of 2025.d.That pending the hearing and determination of this appeal there be a stay of execution of the judgment, orders and all consequential orders arising from Nyahururu CMC Children Case No E009 of 2025 delivered on 4th September, 2025.e.That pending the hearing and determination of this appeal, there be a stay of proceedings in Nyahururu CMC Children Case no E009 of 2025.f.That costs of this application be provided for. 2.The application is premised on grounds that:a.That the Applicant was dissatisfied with the ruling of learned trial magistrate in Nyahururu CMC Children Case No E009 of 2025 where he adjudged inter-alia that the Applicant shall cater for the medical expenses and school fees when the minor joins school and the Applicant to pay Kshs 8,000/= per month as maintenance provision.b.As a result, thereof, the Applicant preferred this Appeal which appeal raises triable issues and has high probability of success,c.That the Respondent is not in any meaningful employment and/or has no known source of income, therefore if any amount is paid to the Respondent, there are no prospects of refund in the event the appeal succeeds.d.That the Applicant has a wife and children who are schooling and the Applicant is a retired civil servant and therefore payment of the amount ordered will be greatly prejudicial to him together with his family.e.That the Respondent is residing with NS whom the Applicant firmly believes is the father of the minor.f.That said NS is maintaining the minor and thus there will be no { prejudice that will be visited upon the minor herein.g.That the application has been filed timeously.h.That orders of the Court have already been served upon Respondent and the Applicant may at any time cite the Applicant for contempt and thus the need for the orders sought to be granted and yet the Applicant has denied paternity of the minor.i.That it is the best interest of minor that the orders sought be granted. 3.The application is supported by an affidavit deponed by the Respondent where he states inter alia that the learned trial magistrate ordered him to cater for medical expenses and school fees when the minor joins school and further pay Kshs 8,000/= per month as maintenance and being aggrieved by the ruling he lodged an appeal which has high chances of success. 4.That the Respondent is not in any meaningful employment and/or has no known source of income, therefore if the amount is paid there are no prospects of refund in event that the appeal succeeds. That he will be prejudiced if payment of the amount is ordered because he has a wife and children who are schooling and he is retired. 5.Further, that the Respondent resides with one NS whom he believes is the father of the minor. That orders of the court have been served upon him and he may be cited for contempt; and, it is in the best interest of the minor that orders sought be granted so that her knows who is the biological father, a right that is entitled to him. 6.In response thereto, the Respondent filed a replying affidavit where she deponed that the application does not meet the threshold for stay of execution as the Applicant has not demonstrated that substantial loss may result if the order of stay of execution is not granted; that the applicant will not suffer any damage by complying with the orders of the trial court, and, that the Applicant has not offered security for the due performance of the decree. 7.That the Applicant is the biological father of the minor and had acknowledged paternity and maintained the minor and granting stay will not be in the interest of the minor who requires maintenance. 8.The application was disposed of through written submissions. I have considered the application, the affidavits in support and opposition and annextures herein. This is a case involving interim upkeep of a minor. The consideration in dealing with a case of stay of maintenance order for minors was considered in KKV, CWN [2017] eKLR what came out is the question of the “best interest of a child”. 9.In the cited case of Bhutt v Bhutt HCCC No 8 of 2014 (OS). It was stated that;“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 overriding consideration of the best interest of the child in accordance with Article 53 (2) of the Constitution”. 10.Order 42 Rule 6 (1) (2) of the Civil Procedure Rules provides;a.No appeal or second appeal shall operate as stay of execution or proceedings 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 deem to it seem just, and any person aggrieved by an order of stay made by the court from appellant court to have such order set aside.b.No order for stay of execution shall be made under sub rule (1) unless – the court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without unreasonable delay; and such security as the court orders for the due performance of such decree or order as my ultimately be binding on him has been given by the applicant. 11.In the impugned ruling the trial court was of the view that the Respondent had demonstrated that the Applicant took up the parental responsibility of the child hence it was obligatory for him to continue maintaining him as the matter was proceeding. 12.In ZMO v EIM [2013] eKLR it was stated that;“… There are no two ways about it. Suspension of maintenance order is not in the best interests of the child … the solution ideally lies within expediting the disposal of the appeal...” 13.To suspend an order of maintenance of a child would mean that the child would not have basic needs as ordered hence being denied the opportunity to have his priority prioritized. 14.It is urged that the Applicant will suffer substantial loss if the order sought is not granted, the child will be deprived his constitutional right of knowing who the actual father is and that the Applicant has another family which will be prejudiced. The question of paternity of the child will be addressed upon the case being heard. This is a matter where the Applicant took up parental responsibility of the child hence the court did presume paternity as envisaged by the law. In PM v JK [2010] eKLR the court stated that:“The Children’s Act provides where the mother and father of the child are not married 3 circumstances under which a father can be saddled with parental responsibility. Just to repeat for better understanding, the first is where the father makes an application for the court to give him the parental responsibility. The 2nd is where the father and mother of the child enter into an agreement recognizing the father’s parental responsibility. The third is where the father either acknowledges paternity of the child or where he had maintained the child. That being the case, unless those three circumstances take place, the court cannot order a man who is not married to a woman to acquire parental responsibility.” (Emphasis mine) 15.Article 53 (2) of the Constitution provides:A child’s best interests are of paramount importance in every matter concerning the child. 16.Section 8 of the Children Act provides:1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies-(a)the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 17.Until the DNA test is done and a full order is made, the concern of the court remains the child’s best interest. 18.On the question of security of due performance of the order, the affidavit by the Applicant is silent on the kind of security the Applicant would be willing to give pending appeal. The Applicant herein has disregarded the order of the trial court. In case of the appeal being unsuccessful there is no guarantee that the Applicant will comply with orders. 19.In the premises I find the application lacking merit. Accordingly, it is dismissed with costs to the Respondent. 20.It is so ordered. DATE, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.........................HON L. MUTENDEJUDGE