https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11316

JKM v SKK (Civil Appeal E005 of 2026) [2026] KEHC 11316 (KLR) (Civ) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11316 (KLR) Republic of Kenya In the High Court at Isiolo Civil Civil Appeal E005 of 2026 SC Chirchir, J July 23, 2026 Between JKM Applicant and SKK Respondent Ruling 1.What is coming up for determination is the Notice of Motion dated 13th March 2026. The Applicant seeks orders as follows:1.(Spent)2.( spent)3.That this honourable court be pleased to stay execution of the judgment by Hon. E.N Mwenda delivered on 3rd March 2026 pending the hearing and determination of the Appeal by the Applicant herein.4.That the costs of this Application be provided for. The Applicant’s Case 2.The Applicant’s relies on the grounds appearing on the face of the Motion and the Supporting Affidavit. 3.It is the Applicant’s case that he has since filed an Appeal against the decision of the lower court which ordered him to pay ksh. 15, 000 per month for the upkeep of his children. He states that the Appeal raises serious and arguable issues of law and fact with high chances of success; that the Application has been brought without undue delay; that he will suffer irreparable loss unless stay is granted, and that the Appeal will otherwise be rendered nugatory. 4.The Applicant further states that he has another family to take care of and also his parents to attend to. The Respondent’s case 5.The Respondent opposes the Application. 6.The Applicant states that the Application is defective for want of a decree, as none has been attached to the Application; that the Applicant has not satisfied the conditions for stay pending Appeal. On the plea of substantial loss, she argues that the money can be refunded in the event that the Appeal succeeds and that no offer for security has been made. 7.The respondent further states that the children depend on the monthly payment for their upkeep and Education and a stay of execution will cause undue hardship to the minors and goes contrary to the best interest of the child principle. 8.The parties filed written submissions which the court has taken into consideration. Determination 11.I have considered the Notice of Motion dated the Supporting Affidavit and the written submissions as aforesaid The issue that arise for determination in the Motion is whether the Applicant has established sufficient grounds to warrant an order of stay of the lower court judgment and consequential execution pending the hearing and determination of the appeal. 12.The jurisdiction of the Court to grant orders of stay pending appeal is donated by Order 42 Rule 6 of the Civil Procedure Rules. The Applicant must demonstrate that the application has been made without unreasonable delay, that substantial loss may result unless the orders sought are granted and that the Court should exercise its discretion in the interests of justice. 13.In Global Tours & Travels Limited v Five Continents Travel Limited [2015] KECA 789 (KLR) the Judge observed that the grant of stay of proceedings is purely discretionary and that the Court should weigh the competing interests of the parties while considering whether the intended appeal is arguable; whether the application has been brought expeditiously and whether granting or refusing the stay would serve the interests of justice. 14.The impugned Judgment was delivered on 3rd March 2026 whereas the present application was filed on 12th March 2026. There was no delay in filing the Application. 15.On whether the Applicant would suffer such a loss, save to merely state it, the Applicant has failed to demonstrate such a loss. Granted, he has stated that he has another family to take care of, but he has failed to provide the names and ages of any other children he has. In respect of his parents, their interest can not supersede that of the children. The Applicant’s obligation to his children is legal, while his obligation to his parents is moral. 16.In the case of KBH v HMI [2024] KECA 172 (KLR) the court of Appeal expounded on the best interest of the child principle as follows:“The best interest of the child is a constitutional principle and right of the child as spelt out under Article 53(2) of the Constitution. That provision requires, inter alia, courts to treat the best interests of the child as of paramount importance in every matter concerning the child. Section 4(3) of the Children Act * requires “all judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any power conferred by this act to treat the interest of the child as of first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to safeguard and promote the rights and welfare of the child, conserve and promote the welfare of the child, and secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.” (* children’s Act 2001 currently section 8 of the children’s Act 2022)) 11.The disputed order arising from the lower court judgment is on maintenance. Maintenance of the children cannot be held in abeyance, as such basic needs as food, clothing and every day care are essential to their welfare. Therefore, the nature and circumstances of this case do not favour stay pending Appeal. 12.Consequently, the Application is hereby disallowed and each party to meet their won costs DATED, SIGNED AND DELIVERED AT ISIOLO THIS 23RD DAY OF JULY 2026.S. CHIRCHIRJUDGE.In the presence of:Roba Katelo – Court AssistantMs Otieno for the ApplicantRespondent – in person.