https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9893

FR & another v JKN (Civil Appeal E292 of 2025) [2026] KEHC 9893 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9893 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E292 of 2025 JRA Wananda, J July 3, 2026 Between FR 1st Appellant DR 2nd Appellant and JKN Respondent Ruling 1.This Ruling is on an Application seeking an order of stay of execution pending hearing and determination of this Appeal, which arises from a suit filed at the Magistrate’s Court concerning the issue of parental responsibility. It is, specifically, a tussle over the custody of 3 children (all minors) between their father (the Respondent), who sued, and their maternal grandparents (the Appellants) after the death of their mother (hereinafter referred as “the deceased”), whom, it is stated, lived with the Respondent for many years allegedly as a “wife” before separating from him about 3 years before her death. It is stated that after moving out of the alleged “matrimonial home”, the deceased had returned to live with her parents (the Appellants) with all the 3 children. In determining the suit by way of his Judgment delivered on 1/12/2023, the trial Magistrate made orders as follows:i.The Plaintiff shall have legal and custody of the three minors.ii.The Plaintiff shall immediately hire a nanny who will help him take care of the children.iii.The Defendants, who are the maternal grandparents of the minors shall be granted reasonable access to the children on every alternate weekend and half of the school holidays.iv.The children’s officer of Kapseret/Kesses subcounty shall supervise the handover of the minors to the Plaintiff. The handover process shall be humane and coordinated by the children’s officer. The handing over should be gradual and not immediate so that the children’s office can understand what is happening in their lives.v.The Plaintiff children’s office is hereby directed to monitor the welfare of the children for a period of three years, and annual reports are to be filed in Court.vi.Each party to bear their own costs. 2.The Appellant has now filed the Application the subject of this Ruling, namely, the Notice of Motion dated 2/12/2025, through Messrs Chemoiyai & Co. Advocates. The Application, as aforesaid, seeks orders for stay of execution of the said Judgment, and that consequently, the minors remain in the custody of the Appellants pending hearing and determination of this Appeal, with the Respondents enjoying access under structured supervision. 3.The Application is supported by the Affidavit sworn by the 2nd Appellant, in which he deponed that the minors have lived with the Appellants since the Respondent handed them over to the Appellants when their late mother went to work out of town, was then hospitalized for a terminal disease and eventually died. He deponed that, as such, the Appellants are the children’s primary caregivers. He deponed further that there exists an Occurrence Book (OB) Report from Kapsoya Police Station and P3 Form showing that one of the minors was sexually assaulted while under the custody of the Respondent, which crucial evidence the trial Court did not evaluate or render any finding upon. He urged that removal of the minors from the Appellants exposes them to imminent danger and trauma, and that unless stay is granted, the minors will be handed over to the Respondent and the Appeal will be rendered nugatory. 4.The Application is opposed by the Respondent who relies on his lengthy 28-paragraph Replying Affidavit sworn on 10/12/2025, filed through Messrs Owuondo & Obinchu Co. Advocates. In the Affidavit, he deponed that his late wife (the deceased) went to the Appellant’s home with the children in March 2023 after 13 years of marriage, and that prior to that, the minors had always lived with him as their father at their matrimonial home. He deponed that throughout the minors’ stay with the Appellants, he remained the primary financial provider paying all their school fees, providing money for upkeep, medical expenses, and maintaining consistent involvement in their lives, and that after the death of the deceased, he requested to have the children back but the Appellants refused and instead, made false allegations to justify keeping the children from him. He contended that the Appellants are serious in “killing” their family unit rather than allowing them to live harmoniously in commemoration of the deceased, and that the allegations concerning one of the minors were thoroughly investigated during the trial and conclusively disproven by credible evidence. He set out the testimony of two medics who testified at the trial Court, whose medical reports were relied on, one of whom, he deponed, stated that she found no evidence of sexual abuse, and the second one stated that he never examined the minor, and that all tests to ascertain assault were negative. He also set out the testimony of a police officer from the police station where the reports were made, whom, he deponed, testified that the report was never investigated, nor did she take Respondent’s statement. 5.According to the Respondent therefore, the allegations of sexual abuse were fabricated as they were all brought up after the death of the deceased, and he defended the trial Court from the allegation that it did not evaluate the evidence, pointing out that it made clear findings that the allegations were not supported by evidence, nor did it find evidence that the Respondent was unsuitable or a danger to the minors. He urged further that the trial Court’s Judgment provides for a humane and gradual hand-over process supervised by the Children’s’ Officer, ensuring the transition is done in a child-friendly manner, grants the Appellants reasonable access to maintain their relationship with their grandchildren, and directs the Children’ Officer to monitor the welfare of the children for a period of 3 years. He added that since the delivery of the Judgment, he is nor certain whether the children are even still within the Court’s jurisdiction as he possesses information that they have been hidden in a stranger’s house to keep them away from him. He contended that under Section 34(1) of the Children’ Act, upon the death of the mother, the father has parental responsibility for a child unless it is proven by cogent evidence that he is unsuitable or incapable of caring for the child, that grandparents have no right to assume parental responsibility for a child when the parent is alive and willing to take up responsibility, and that a child has a right to parental care, and denying the child this right cannot be in his best interests. In conclusion, he basically asserted that the Appellants have failed to meet any of the requirements for grant of stay pending Appeal. 6.With leave of the Court, the Appellants filed the Supplementary Affidavit again sworn by the 2nd Appellant, in which he basically exhibited copies of a P3 Form and Medical Report in support of the allegations of sexual abuse he made in his Supporting Affidavit against the Respondent. 7.Pending determination of the Application, I issued an interim order staying the Magistrate’s Court’s impugned Judgment. I then gave the parties leave to file written Submissions. Pursuant thereto, the Appellants filed the Submissions dated 19/12/2025. I have not however come across any Submissions filed by the Respondent. Appellant’s Submissions 8.Counsel for the Appellant, Mr. Chemoiyai, submitted that abrupt removal of the minors from their current environment (residing with the Appellants) poses a real risk of emotional and psychological harm which cannot be reversed even if the Appeal succeeds, and that exposing the minors to further instability before the Appellate Court interrogates the trial Court’s findings would amount to “substantial loss” within the meaning of the law. On the allegation that the Appeal has no reasonable prospects of success, Counsel termed the allegation as premature since at this stage, the Court is not called upon to determine the merits of the Appeal but only to establish whether it raises arguable issues deserving consideration, which, he submitted, it does. In respect to Section 34(1) of the Children’s Act cited by the Respondent, he submitted that it does not mandate custody of children as an automatic right to a parent, but that custody must still be based on the best interest of the child and evidence of fitness, and that parental responsibility does not override the Court’s duty to consider the safety, welfare, and emotional stability. He also submitted that although Section 39 and 40 provides that a Children’s Officer may supervise care, it does not automatically eliminate risks if custody placement is unsafe, and it cannot also prevent harm occasioned by abrupt displacement or cure trauma already suffered since the purpose of stay pending Appeal is preventive, not remedial. According to him therefore, the balance of convenience tilts in favour of preserving the status quo. In the end, he asserted that the allegation that the minors are being “hidden” was made without any evidence, and is thus speculative. The other arguments raised are restatements of the matters already deponed in the Appellant’s Supporting Affidavit, save that Counsel also cited case law and/or authorities. Determination 9.The issue that calls for determination in this matter is “whether an order staying execution of the Judgment delivered by the trial Court on 1/12/2025 should be issued pending determination of this Appeal”. 10.I must reiterate that in determining matters involving the welfare of children, including an Application for stay of execution as herein, the “best interest” of the child is what is paramount. This is expressly provided under Article 53(2) of the Constitution and also in Section 8(1)(a) of the Children Act as follows: Article 53(2) ofthe Constitution “A child’s best interests are of paramount importance in every matter concerning the child.” Section 8(1)(a) ofthe Children Act “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;” 11.Generally, the principles guiding grant of stay of execution pending Appeal are well settled. In this respect, Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows:“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 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.Regarding handling of Applications for stay of execution in children’s matters specifically, the principles applicable were well set out by Murithi J in the case of Bhutt v. Bhutt, Mombasa HCCC NO. 8 of 2014 (O.S.) as follows:“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.” 13.From the foregoing, it is clear that an applicant for stay of execution pending appeal must satisfy 3 conditions, namely, (a) he will suffer substantial loss unless the order is granted, (b) the Application has been made without unreasonable delay, and (c) where applicable, willingness to deposit security for the due performance of any orders so stayed. 14.On the first condition, namely, whether the Appeal was filed timeously, the impugned Judgment was delivered on 1/12/2025, while this Appeal was filed on/or about 2/12/2025 simultaneously with the instant Application. The Application was therefore obviously filed without delay. 15.The second condition is whether there shall be any “substantial loss” should the order not be granted. As to what encompasses “substantial loss”, F. Gikonyo J, in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, stated as follows:“….. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 16.It is important to always recall that in children’s matters, the interests of the child supersede those of the parents. The “substantial loss”, which prevails over and above that of the parent, is therefore that of the child. The Court must thus look beyond the possible “loss” to be suffered by the parent and consider the “loss” that may be suffered by the child. In regard thereto, in the case of LDT v PAO [2021] eKLR, R. Ngetich J, stated as follows:“ 18.While considering stay of execution in respect to children matters, beside the above, the Court has to consider the best interest of the child. The applicant is expected to demonstrate that the minors will suffer if a stay is not granted. I however note that the applicant averred that he will suffer great prejudice as he will be condemned to pay school fees twice if an order of stay is not granted.………………………………………………………………….. 20.The best interest of a child is superior to rights and wishes of parents; they should incorporate the welfare of the child in its widest sense. ……………….” 17.In this case, it is clear that all the minors have been in the physical custody of the Appellants since 2023 when their mother (the deceased) moved out with them from the alleged “matrimonial home” Eldoret. 18.The mere act of separation by their parents has obviously already had a negative impact on the minors. Their mother’s ailment and subsequent demise has obviously worsened matters. They might not have comprehended what happened to the family unit they used to know but certainly they must have noticed a breakdown in the family unit and the hostility between their parents. As I stated in my earlier decision in the case of NAB v JSG (Civil Appeal E282 of 2025) [2026] KEHC 77 (KLR) (16 January 2026) (Ruling), which incidentally, Mr. Obinchu, was also involved,“this is a sad eventuality but we have to live with it as it is one of the negative consequences of the transformations of the modern world. We have inevitably come to accept that the marriage institution is no longer what it used to be, and innocent children everyday find themselves caught up in supremacy battles between parents, either during pendency of the marriage or post-divorce. What Courts can do is simply to protect the children finding themselves in such circumstances from harm by attempting to mitigate the impact of the effects of the fallout between their parents. As aforesaid, this is the essence of the “best interest of the child” principle. 19.In this case, the parties have gone beyond what they ought to have confined themselves to considering that this is simply an interlocutory Application. They, for all intents and purposes, argued the full Appeal. Considering that the dispute is still under active litigation in this Appeal, I will restrain myself from delving into or commenting on the merits and/or demerits of the parties’ respective cases. All I will do is to identify the position that best cushions the minors from the adverse effects of the battle between their father and the grandparents pending hearing and determination of the Appeal. This is because, as aforesaid, decisions touching on children’s welfare are made, not for the parents’ convenience, but on the basis of the children’s “best interests”. To this extent, the parents’ grievances can be dealt with separately but the Court will, in deciding, be guided by the “best interests” of the children. 20.As it stands, the minors have for at least the last 3 years now, been, and still are, all under the physical custody of the Appellants, which position I retained when I issued a temporary stay of execution of the impugned orders made by the lower Court. That status quo therefore still prevails as at now. Doing the best I can, I am of the opinion that it will best to continue retaining that position for now. If I were to allow the Judgment to take effect pending Appeal, the minors will be released to the Respondent. He will then most probably relocate them back to his home, and enrol them in new schools, among other changes, and thus introduce them to new surroundings. Should the Appeal however then subsequently succeed, the situation shall again change as the Appellants will take back the minors, bring them back to their home, and re-enrol them in their old schools, or even in new ones, thus once more, changing the minors’ environment. This “ping pong” state of affairs cannot be a good for the minors at all. It is likely to put them through even more psychological trauma which may take ages to cure, if at all, and may as well turn out to be permanent emotional damage. As such, my take is that more harm is likely to be caused to the children by allowing execution of the Magistrate’s Court’s Judgment than staying the orders pending determination of the Appeal. 21.For the foregoing reasons, I am persuaded that the Appellant has demonstrated the possibility of the minors suffering “substantial loss” that may turn out to be irreparable and not capable of being cured in any way should execution proceed before this Appeal is heard and determined. The “balance of convenience” therefore, in my view, favours granting the prayer for stay pending Appeal. Final Orders 22.The upshot of my findings above is therefore as follows:i.The Appellant’s Notice of Motion dated 18/07/2024 is hereby allowed in terms of prayers (3) and (4) thereof. Consequently, pending determination of this Appeal, an order of stay of execution of the Judgment delivered on 1/12/2025 in Eldoret MCCHCC/E015/2025 is hereby issued.ii.Pending the hearing and determination of this Appeal, the Appellants are hereby directed to give to the Respondent, who is the minors’ father, access to the children on every alternate weekend and half of the school holidays, with effect from the immediate weekend following the delivery of this Ruling.iii.Considering the nature of the dispute and the continued destabilization of the minors, and also uncertainty on the part of the father and grandparents, I trust that the Judge taking over the conduct of this matter, now that I have since proceeded on transfer, shall deem it necessary to fast-track the hearing and determination of this Appeal.iv.Costs shall be in the Cause. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026……………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Mr. Chemoiyai for the 1st and 2nd Appellants-ApplicantsMs. Isiaho for the RespondentCourt Assistant: Brian Kimathi