https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6873

HGK v LWM (Family Appeal E024 of 2025) [2026] KEHC 6873 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6873 (KLR) Republic of Kenya In the High Court at Thika Family Appeal E024 of 2025 FN Muchemi, J May 14, 2026 Between HGK Appellant and LWM Respondent Ruling Brief Facts 1.The applications for determination are dated 5th December 2025 and 21st January 2026. The application dated 5th December 2025 seeks for orders of stay of execution of the judgment delivered on 21st November 2025 in Ruiru Senior Principal Court Children’s Case No. E009 of 2025 pending the hearing and determination of the appeal. The applicant further seeks for interim protective orders securing the welfare of the minors including an order directing the minors remain under the temporary care and supervision of the appellant’s mother, Mrs. LN and an order permitting the minors to continue attending or immediately be enrolled in the safe and suitable schooling arrangements already secured by the appellant. The applicant seeks for orders directing the Children’s Department to conduct and file a comprehensive welfare assessment, including a home visit, interviews with the minors and evaluation of each household’s caregiving capacity. 2.In opposition to the application, the respondent filed a Replying Affidavit dated 9th January 2026. 3.The application dated 21st January 2026 seeks for orders of review of the orders granted on 10/12/2025 and extended on 20/01/2026. Further the respondent seeks to have the court set aside and vary the orders of stay in respect of the minors. 4.In opposition to the application, the applicant filed a Replying Affidavit dated 2nd February 2026. Appellant’s/Applicant’s Case on the application dated 5th December 2025 5.The applicant states that the judgment delivered on 21st November 2025 by the trial court granted physical custody of the minors to the respondent and allocated him the responsibility of school fees and other school related expenses, medical expenses and accommodation while the respondent was allocated responsibility for food and clothing. The applicant avers that the present custodial status quo exposes the minors to risks as they face a lack of adequate supervision and unsafe domestic circumstances as they are left the whole day without any adult supervision. Further they have been on several occasions locked inside the house; reported missing meals; the respondent has numerously returned home intoxicated or failed to return at home leaving the children unattended for long periods. The minors further are exposed to unsafe adult conduct as they have reported that the respondent was in a relationship with a man known as Evans Nyagoro who at times stayed at their residence and the two displayed and continue to display unsafe adult conduct in front of the children thus harming them mentally. 6.The applicant avers that the respondent threatened to harm the children and herself forcing him to seek pastoral counselling services for the family. Further the respondent abdicated routine domestic responsibilities severally resulting in the elder children having to assume caregiving tasks such as cooking and supervising younger siblings. The increased domestic burden on the elder child materially impacted his schooling and prompted his request for boarding school. 7.The applicant states that he relocated the minors to his mother’s house in Kandara and enrolled them in new schooling arrangements since 6th January 2025. The applicant further states that he has made payments for uniforms and school fees, engaged a house help and arranged for stable supervision. 8.The applicant avers that since he relocated to the United States he has been subject to immigration related obligations and new government measures that have materially altered his income and financial predictability which changes have rendered the continuous, open ended accommodation obligation imposed by the trial court unsustainable and unpredictable in practice. The applicant states that he is willing and able to meet reasonable, fixed and predictable obligations such as school fees, medical expenses and a structured monthly maintenance amount. He therefore seeks a temporary suspension of the accommodation obligation pending the appeal and a full hearing on variation. 9.The applicant argues that variation sought is not to abrogate parental responsibility but to align financial obligations with his present capacity while ensuring the minors’ needs are met and their welfare secured. He further argues that the interim orders sought are reasonable, proportionate and child centered as they are intended to stabilize the minors’ immediate environment, permit a professional and independent welfare assessment and allow him to continue contributing to the children’s predictable and necessary needs while relieving him of an unsustainable accommodation obligation pending fuller determination. 10.The applicant avers that the Children’s Department is the appropriate agency to undertake an immediate welfare evaluation comprising home visits and interviews with the minors. The Respondent’s Case 11.The respondent states that the supporting affidavit is defective as it is stated it was sworn in Nairobi whereas the deponent is in the United States without the same being notarized. The respondent argues that the High Court on several occasions struck out such affidavits as was the case in Peeraj General Trading Contracting Company Limited Kenya & Another vs Mumias Sugar Company Ltd [2016] KEHC 8119. The respondent further relies on the case of Independent Electoral & Boundaries Commission & Another vs Stephen Mutanda Mule & 3 Others (2014) eKLR and states that parties are bound by their pleadings and thus the applicant should not be allowed to depart from the same. Further, the respondent argues that an application cannot stand on its own and thus it should be dismissed as in the case of Heywood Ochieng Asego vs Jackson Kimeu Mulinge & 2 Others [2013] eKLR. 12.The respondent states that despite the orders having been issued on 10/12/2025 at the first instance, her advocates on record were served on 5/1/2026 which was almost one (1) month later. The respondent further states that the applicant has failed to meet the threshold set under extension of stay as provided for under Order 40 Rule 4(2). 13.The respondent avers that throughout the pendency of the children’s case in the lower court the minors were living with the grandparents and after the trial court delivered its ruling on 6/02/2025 she lived with the minors for two weeks during the school holidays. The respondent states that the applicant filed a similar case in Ruiru CCHC E009 of 2025 against the biological mother of ANG one EMN in Milimani HCDC 222 of 2014 and made similar allegations of drunkenness, adultery and neglecting the child. 14.The respondent states that the applicant is still living in the United States and although custody was granted to her he does not know her living conditions or her work place and schedule. The respondent argues that the applicant has not attached any evidence to show that the minors were locked inside the house without adult supervision; or that they were left unattended for long periods, or that they have been exposed to unsafe adult conduct, threatened or lacked meals or that the respondent was intoxicated. The respondent argues that he who alleges must prove and she has not in any way or form violated the children’s rights. 15.The respondent states that EN was introduced to her by the applicant in the year 2017 and his role was to assist her in paying for rent of their business enterprise then with the applicant [Particulars Withheld] College which was located in Zimmerman. The respondent avers that she has never been in a romantic relationship with the said EN and he has never stayed in any of their residences or where she has stayed. Further EN is a friend to the both of them. 16.The respondent further states that she is the biological mother of the minors and would not threaten them in any way. It is further stated that the applicant was away in the United States for seven years and when he came back he found the minors in good health including ANG. The respondent states that she and the children are active members and participants of PCEA Kasarani West Church. 17.The respondent avers that she did not abdicate or abandon any of her roles as the applicant alleges and there was no request by any child to go to boarding school and WMK was taken to boarding school last year without her consent. The respondent argues that the court has powers to appoint guardians but in the present case the threshold has not been met as the grandparents chosen by the applicant are quite elderly in their 70s and are Kikuyu traditionalists who are not well enlightened of the current education curriculum and would therefore not assist the minors in any way with their schoolwork. 18.The respondent argues that the choice made to change the twins from [Particulars Withheld] Academy in Nairobi, a private school, to [Particulars Withheld] School in Kandara was selfish on the part of the applicant as he chose a school close to the grandparents instead of looking at the impact that the twins will have in respect to settling in the new children, acclimatizing to the surrounding and consequently participating in the school. The respondent further argues that the applicant who is no longer in Kenya disrupted the living conditions of the minor which they enjoyed for seven years as he was away from 2017 to 2024, illegally without her consent. 19.The respondent avers that she is ready and willing to provide for her children as was ordered by the court on 21/11/2025. She has filed an application in the lower court seeking orders for the children to be transferred to a school close to her place of residence so as to comply with the judgment of the trial court. The respondent further states that the applicant brought the present application in bad faith as he intends to delay the implementation and enforcement of the judgment delivered on 21/11/2025 by raising concerns and issues against her without any evidence which continues to delay, impedes, obstructs, hinders and hampers the children to fully enjoy their rights as provided in the Children’s Act. 20.The respondent argues that the applicant has failed to show that he stands to suffer substantial loss in the event that the orders of stay are not granted. The Respondent/Applicant’s Case on the application dated 21st January 2026 21.The applicant states that upon delivery of the judgment issued on 21/11/2025 in the lower court, she enrolled the minors in a private school, [Particulars Withheld] School, Chokaa where they are attending since 7/1/2026 and she has paid school fees and met the school related expenses. Thus the subsistence of the interim orders extended on 20/1/2026 will have the effect of disrupting the minors’ studies as they will have to move from their current school. Further, the money expended for school fees and school related expenses will go down the drain. Additionally, the alternative school, [Particulars Withheld] School is a public school unlike the current school they are in. The Appellant’s/Respondent’s Case 22.The respondent argues that the financial expenditure on school fees is quantifiable and refundable and cannot be elevated above the welfare, safety, emotional stability and holistic well being of the minors. The respondent reiterates that that the applicant has over time been largely absent from the day to day lives of the minors as she is rarely physically present, does not consistently provide care and is not meaningfully involved in their routine upbringing, which would be evident if the trial court had interviewed the minors. 23.The respondent states that the applicant has failed to demonstrate any exceptional or overwhelming circumstances warranting the exercise of the court’s discretion in her favour. On the contrary, vacating the stay at the current stage would risk rendering the appeal nugatory and undermining the orderly administration of justice. Further, the applicant has not satisfied the settled principles governing the grant or discharge of stay orders nor does it disclose any sufficient reason to interfere with the court’s earlier exercise of discretion. Thus it is in the best interests that the minors that the existing orders remain in force pending the hearing and determination of the appeal. 24.Parties disposed of the application by way of written submissions. The Applicant’s Submissions 25.The applicant relies on Article 53(2) of the Constitution, Sections 8 & 103 of the Children Act and submits that the best interests of the children are of paramount importance. The applicant argues that the respondent is not fit to have custody of the minors as she leaves them for days on end with the house help as she goes on new escapades with her new partner, which is not in the best interests of the minors who have loving grandparents who have taken care of them and are willing and able to continue doing so. To support his contentions, the applicants relies on the cases of SM vs DK & Another [2024] KEHC 162 (KLR) and MSA VS PKA [2009] eKLR. 26.The applicant argues that the respondent seeks to stay the order of stay granted by this court which in essence is a negative order. The applicant refers to the decision in Kanwal SSD vs KJS [2008] eKLR and submits that it is trite law that a negative order cannot be stayed. The applicant further relies on Section 80 of the Civil Procedure Rules, Order 45 Rule 1 of the Civil Procedure Rules and the case of Tokesi Mambili & Others vs Simion Litsanga (2004) eKLR and submits that the respondent has not satisfied the grounds for review as she has based her grounds for review on the fact that she spent a lot of money in enrolling the minors in schools and risks losing the said money. The Respondent’s Submissions 27.The respondent relies on Order 42 Rule 6 of the Civil Procedure Rules and the case of Kenya Shell Limited vs Kariga [1982-88] 1 KAR 1018; LNK vs LMM [2006] eKLR; Caneland Ltd Malkit Singhpandhal & Another vs Delphis Bank Ltd [2000] eKLR and Isaac Muteti Kisua vs Felix Mwangi Ndegwa [2016] eKLR and submits that the applicant has not demonstrated what substantial loss he stands to suffer if the orders sought are not granted. The respondent reiterates that since 2017 until December 2024, she was living with the minors and the applicant found them in good health and taken care of. The respondent submits that she will be greatly prejudiced if the application is allowed. To support her contentions, the respondent relies on the case of Zuleikha Mohammed Naaman vs Gharib Suleiman Gharib C.A No. 123 of 1997 Civil Appeal No. 103 of 1993. 28.The respondent refers to the cases of Kenya Shell Ltd vs Kibiru & Another (1986) KLR; Tarbo Transporters Ltd (no citation given) and J.P Macharia t/a Macharia & Co. Advocates vs East African Standard (No. 2) [2002] KLR 63 and submits that the court ought to balance the interests of both parties herein as she is ready and willing to maintain her children yet the applicant does not live in Kenya and has conceded to being financially constrained. 29.On the application dated 21/01/2026, the respondent argues that the applicant does not stand to suffer any prejudice if the orders issued on 10/2/2025 are reviewed while conversely she would be greatly prejudiced as the school fees and related expenses she paid will go to waste. To support her contentions, the respondent relies on the case of Mwangi S. Kimenyi vs Attorney General & Another [2014] eKLR. The Law Whether the supporting affidavit to the application dated 5th December 2025 and replying affidavit dated 2nd February 2026 are fatally defective 30.Administration of oaths is regulated by the statutory framework in the Oaths and Statutory Declarations Act. Section 5 of the Oaths & Statutory Declarations Act requires that every commissioner before whom oath or affidavit is taken or made states in the jurat or attestation the place where and date when the oath or affidavit is taken or made. It provides thus:-Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 31.It is not a disputed fact that at the time of swearing the supporting and replying affidavits, the applicant was in the United States. However, despite the applicant being in the United States, both affidavits indicate that he swore the said affidavits in Nairobi before a Commissioner of Oaths. It is trite law that where a deponent of an affidavit swears an affidavit out of the country’s jurisdiction, the jurat should state where he is swearing it from and the same ought to be sworn before a Notary Public. 32.The applicant has however relied on the persuasive decision of Dardanelli & 6 Others vs Tilito & 3 Others (Land Case E041 of 2024) [2025] KEELC 392 (KLR) (6 February 2025) (Ruling) and argued that he swore the affidavits before a commissioner of oaths online. I have looked at said decision and the matter before the instant court and noted that in the instant matter, there is a clear omission by the commissioner and the applicant as the deponent of the impugned affidavits to present a certificate to prove the online activity. The said case provides that the affidavit transmitted to the deponent online, executed and returned and downloaded and then commissioned, the certificate under Section 106B of the Evidence Act is a requirement. The court has to be satisfied that there was a live online appearance of the deponent before a commissioner for oaths for it to accept the execution of the affidavit was by the deponent. The court then proceeds and finds that an affidavit procured in the said manner would only qualify as a proper affidavit provided it was accompanied by the appropriate certificate under Section 106B of the Evidence Act. Lack of a certificate under Section 106B with respect to the process followed in procuring the instant affidavit or the procurement of the attendance of the deponent at the commissioning table was fatal and that affidavit must be struck out. 33.In the instant matter, the applicant did not produce any certificates under Section 106B of the Evidence Act to show the online process and his online attendance before a commissioner of oaths in swearing the said affidavits. It is also prudent to note that the said decision relied on by the applicant is a persuasive one and the law still stands that an affidavit sworn out of the country’s jurisdiction must indicate the place of swearing and executed before a Notary Public. Thus, the supporting affidavit dated 5th December 2025 is defective and is hereby struck out for being defective. 34.The application dated 5th December 2025 cannot stand without a supporting affidavit and is hereby struck out for being defective. Further the replying affidavit dated 2nd February 2026 is similarly struck out for similar reasons. 35.Consequently, interim orders given by the court dated 10th December 2025 are hereby vacated. 36.This is a children’s matter whereas the best interests of the children must be taken into account. It is therefore, my considered view that the appeal herein be prepared for hearing by way of filing the record of appeal within thirty (30) days. 37.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026.F. MUCHEMIJUDGE