https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8605

JKI v AWN (Civil Appeal E214 of 2025) [2026] KEHC 8605 (KLR) (Family) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8605 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E214 of 2025 CJ Kendagor, J June 9, 2026 Between JKI Appellant and AWN Respondent (Being an Appeal from the entire Ruling and Orders by Hon. Mr. G.M. Gitonga, Principal Magistrate delivered on 12th November, 2025 in the Chief Magistrate’s Court at Nairobi in Nairobi Chief Magistrates Court MCFC Cause No. E068 of 2024) Ruling 1.The parties in this case are involved in a matrimonial dispute at the Chief Magistrate’s Court Nairobi, MCFC NO. E068of 2024. The matter is pending hearing and determination. 2.The plaintiff A.W.N (Respondent) filed a Notice of Motion application dated 18th October, 2024 under certificate of urgency. Upon consideration, the trial Court certified the matter as urgent and granted interim orders in terms of the prayers in the application dated 18th October, 2024. Thereafter, directions were taken on the disposal of the application. On 20th January, 2025 when the matter was in Court, the Respondent filed an application for contempt of Court against the Defendant JKI (Appellant), arguing that he had wilfully disobeyed the Court orders issued on 22nd October, 2024. The Appellant, on the other side, denied disobeying the orders. The trial Court heard the application and delivered a ruling on 12th November, 2025 in which it found the Appellant in contempt of the Court orders issued on 22nd October, 2024. It is pending mitigation and sentencing. 3.Aggrieved by the said decision, the Appellant sought leave and lodged the present appeal. Subsequently, by a Notice of Motion dated 27th February, 2026 the Appellant seeks, inter alia, orders for a stay of execution of the said orders and a stay of proceedings pending the hearing and determination of the appeal. The application is supported by a supporting affidavit of even date. 4.The application is opposed. The Respondent filed a replying affidavit dated 5th May, 2026 and submissions dated 20th May, 2026. 5.The Appellant challenges the validity of the contempt of Court proceedings on the grounds of lack of service, among other grounds. 6.He argues that the imminent sentencing hearing will infringe his fair trial rights and has urged the Court to grant a stay of execution and a stay of proceedings, contending that the appeal will be rendered nugatory if the stays are not granted. 7.The Respondent, on the other hand, argues that the appellant was served but wilfully disobeyed the Court orders and should therefore not be granted the orders sought in the application. 8.She further argues that the appeal is premature, as sentencing has not concluded. Analysis and determination 9.Having considered the application herein, the response thereto, and the submissions by the Respondent, the issue for determination is whether the Appellant has met the threshold for the grant of orders of stay of execution and stay of proceedings pending appeal. 10.Under Order 42, Rule 6 of the Civil Procedure Rules, an appeal does not automatically stay the execution of a decree or order, nor does it automatically stay proceedings in the case. An Applicant must fulfil the requirements. 11.In this case, the sentencing hearing is still pending. The Applicant moved the Court before the date fixed for sentencing. Although sentencing has not yet occurred, the Court has jurisdiction to issue the orders sought. 12.A finding that a party is in contempt is considered a negative order. As it is a statement or finding of fact, there is nothing physical to execute. Therefore, a stay of execution cannot be granted against the finding itself. 13.On the stay of proceedings, the orders are inherently discretionary; however, it is imperative that this discretion is exercised judiciously. When evaluating a motion for stay of proceedings, the Court is tasked with striking a balance between the potential delays that may result from the stay and the necessity to pause the ongoing proceedings to achieve justice. 14.The Court must assess the circumstances surrounding the case; the overarching principle is whether staying the proceedings serves the broader interests of justice. 15.The Respondent cited the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 in which the Court held as follows;“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 16.The Applicant has stated the challenges encountered in obtaining the Court proceedings. The rationale provided for the elapsed time between the ruling delivered on 12th November, 2026 and the filing of the application dated 27th February, 2026 appears reasonable and is therefore justifiable. 17.I have read the memorandum of appeal dated 17th December, 2025. The Court cannot, at this juncture, make definitive findings on the appeal. Upon review of the grounds of appeal, I am persuaded that the appeal raises triable issues regarding service of the Court orders, which is a primary issue relevant to the contempt proceedings. Additionally, the appeal challenges the adequacy of the evidence presented and invites the appellate Court to scrutinize the consideration given by the learned magistrate, as he then was, in applying the test for proof of contempt. 18.Contempt of Court proceedings are quasi-criminal in nature. The Court cannot ignore the possibility that various sentences, including imprisonment, may be imposed in contempt of Court proceedings. If the trial Court proceeds with the sentencing hearing and deems it fit to impose a sentence, the Appellant will be required to serve it. In that case, the appeal would be rendered merely academic. 19.The Appellant has applied for a stay of all proceedings; such a stay would halt the hearing and determination of the pending application and the main case until the appeal is heard and determined. I find that it is neither necessary nor in the interest of justice to grant a blanket stay of proceedings. 20.In light of the foregoing, I determine the instant application in the following terms: -i.The Court grants a stay of proceedings limited to the contempt proceedings;ii.This stay does not affect the interlocutory or main proceedings in the suit, which will continue before the designated trial Court in accordance with the directions as may be issued by that Court;iii.The interim stay of all proceedings that had been issued earlier is hereby vacated;iv.Costs of this application shall abide by the outcome of the appeal. 21.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 9TH DAY OF JUNE, 2026.…………………..C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMr. Kinyanjui Advocate for the AppellantMr. Mokua Advocate for the Respondent CIVIL APPEAL E214 OF 2025 RULING 0