https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8486

JTG v WW (Civil Appeal E003 of 2026) [2026] KEHC 8486 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8486 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E003 of 2026 DKN Magare, J June 11, 2026 Between JTG Appellant and WW Respondent Ruling 1.By way of a Notice of Motion Application dated 19.1.2026, the Appellant sought reliefs as follows:a.Spentb.Spentc.That there be stay of execution pending the hearing and determination of the Appeal.d.Costs of the Application be provided for. 2.The Application was premised on the grounds on the face of it expounded and supported through the sworn affidavit of the Appellant dated 19.1.2026. By the said Affidavit, it was deposed as follows:a.The children’s court ordered the Appellant to pay Ksh. 54,420/- within 21 days failing of which warrants of arrest to issue.b.The Appellant has an appeal that raises serious issues of law and fact.c.The Appellant has already paid for SHA medical coverd.The Appellant has a school fees payment plan with the schools.e.The Applicant has been unemployed making it impossible to pay the amount in lumpsum.f.Stay will protect best interest of children.g.Arrest will render appeal nugatory. 3.In response to the Application, the Respondent filed his sworn Affidavit dated 27.1.2026 by which it was materially deponed as follows:a.The warrants of arrest were on food arrears since February 2025 and school fees arrears since second term 2025.b.The basic needs are ongoing and cannot be stayed and the arrears keeps on swelling by the day and month.c.The parental responsibility cannot be relegated to one parent. Dated 7.6.2024.d.The Notice to show cause arose from the parents’ mediation agreement.e.The Appellant earns from his pastoral work and operates school van carrying pupils to school and is only evading responsibility to prejudice the welfare and best interest of the minor. Submissions 4.The Appellant as Applicant filed submissions dated 10.3.2026. It was submitted that the Applicant had met the legal threshold for grant of stay of execution. He cited Order 42 Rule 6 of the Civil Procedure Rules. In this regard, it was submitted that the arrest of the Applicant would occasion substantial harm. 5.The Appellant also disputed the status of school fees arrears and balances on food. 6.The Respondent on his part also filed submissions dated 14.4.2026. It was submitted that the Appellant had been evading parental responsibility and the total arrears had swollen. She submitted that the parents must do their best to support the children Analysis 7.The issue for determination is whether the Application for stays of the warrant of arrest herein is merited pending the hearing and determination of the Appeal. 8.The Appellant’s case is that the appeal has probability of success and if stay of not granted, he will suffer substantial loss. The Respondent on the other hand maintained the position that the Appellant was evasive and the needs of the children had swollen and continued to swell. 9.The Appellant did not refute much of the crucial matters raised in the Replying Affidavit of the Respondent. For instance, there was no evidence that the Appellant had made SHA arrangement for the minors. It was also deposed that the amount of Ksh. 54,420/= that the Applicant was to settle arose out of continuous default of the Appellant since February 2025. Further, it was the undisputed case of the Respondent that the Appellant earned from pastoral farming and transport of children to school using a van. 10.The foregoing assertions raise a serious consideration as to whether the Appellant is a responsible parent. The court is alive to the vagaries of life, inflation and the necessary adjustments in human life which affect humanity. Such variations determine the standards and cost of living and invariably bear weight on the ability of families to sustain themselves and their loved ones. However, a party cannot allege failure of employment or income without demonstrating proportionate effort towards mitigating such extremism towards the welfare and best interest of the child. 11.I understand Article 53 (1) of the Constitution of Kenya provides that a child’s welfare and best interest are of paramount importance in every matter concerning the child. The Constitutional imperative is given effect by Section 8 of the Children Act 2022 Act No 29 of 2022 which provides as follows:(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. 19 No. 29 of 2022 Children.2.All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity. 12.The Appellant’s attempt to dispute the areas in submissions cannot be upheld by this court for submissions are not pleadings or evidence. What the Applicant would be expected to do as a responsible parent was to demonstrate the steps he has undertaken amid economic pressure to give a hand to the survival of the children. Nothing was shown. It was not his proven case that despite the harsh mediation agreement that he impugned, he had managed to do this and that towards the welfare and best interest of the minors. 13.Both parents have equal reasonability towards the minors and the case of the Respondent that the Appellant relegated this reasonability squarely upon her was not rebutted. A party in default of serious obligations towards the welfare and best interest of the child cannot seek and obtain refuge, entertainment and protection from the court. The party has to put up a case based on which the court will infer that the party is trying their best and indeed the circumstances of life are challenging and difficult. As was held by the Supreme Court in MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment):The society in which children grew up shaped who they were. Having both a mother and father involved in a child’s life could provide significant social, psychological, and health benefits. The stability of having a relationship with both parents could provide security and greater opportunities for children to find their own paths to success. Even if circumstances may warrant limited access to a parent, a court should order supervised access. The Supreme Court had the constitutional obligation to ensure that the child had access to parental care and protection as enshrined in the Constitution. 14.The conditions that the Appellant sought to rely on under Order 42 of the Civil Procedure Rules were more injurious to him. If the court were to direct that he deposits Ksh. 54,420/= as security, it would appear an injustice to him and again not in the best interest of the minors since they need that money for their survival. However, the Appellant has to do something for the welfare and best interest of the minor pending the hearing and determination the Appeal to entitle him to the unlimited right of appeal. 15.There cannot be a blanket stay as the children will suffer more and which will yield injustice and prejudice. The basic needs, as submitted the Respondent keep growing and proliferate by the day. The Appellant has allowed this proliferation to catch up with him and he can only blame himself. 16.This court may give the Appellant more time to reorganize his finances but the maintenance of his children is an obligation he has to accept and live with. The best order that recommends to me is that the Appellant shall fully pay Ksh. 54,420/= in lump sum or instalments within 60 days from the date hereof failing of which the the warrant of arrest activated. Determination 17.In the upshot, I make the following Orders:a.The Appellant to pay school fees, school arrears and expenses within 60 days from the date hereof.b.The warrants of arrest are stayed.c.Each party to bear their own costs.d.Further directions after 60 days. DELIVERED, DATED AND SIGNED AT NYERI THIS 11TH DAY OF JUNE THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY - SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Appellant PresentRespondent PresentCourt Assistant: Martin