https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7384

KSL v AO (Family Miscellaneous Civil Case E004 of 2026) [2026] KEHC 7384 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7384 (KLR) Republic of Kenya In the High Court at Embu Family Miscellaneous Civil Case E004 of 2026 RM Mwongo, J May 28, 2026 Between KSL Appellant and AO Respondent Ruling The Application 1.The applicant filed a notice of motion dated 16th February 2026 seeking the following orders:1.Spent;2.That this Honourable Court be pleased to grant leave to the Applicant to file an Appeal out of time against the Judgment delivered on 22nd October 2024;3.That the annexed Memorandum of Appeal be deemed as duly filed upon payment of requisite court fees;4.That there be a stay of execution of the Judgment delivered in MCCHCC/E008/2024 and all consequential orders pending the hearing and determination of this Application;5.That there be a stay of execution of the Judgment delivered in MCCHCC/E008/2024 and all consequential orders pending the hearing and determination of the intended Appeal;6.That warrants of arrest issued against the Applicant be stayed and suspended pending determination of the intended Appeal; and7.That the costs of this application be in the cause. 2.The application was supported by the grounds set out on its face and in the supporting affidavit thereof. 3.It is the applicant’s case that the delay in filing the appeal occurred when he was trying to negotiate compliance and due to financial constraints on his part. He stated that he has several dependants besides the child he has with the respondent and that his affidavit of means was not considered. The applicant has been subjected to contempt proceedings through which the court ordered that a part of his salary be attached failing which he would be committed to civil jail. He stated that he is a current sitting Member of County Assembly (MCA) in Kakamega County, a seat that he might lose if he is committed to civil jail. That if he loses this seat, he will lose a public office, his livelihood and reputation. That, as a result he will not be able to provide for the minor in question and all his other dependants. 4.It was his assertion that it is not in the best interest of the child if the applicant is committed to civil jail. He offered to pay Kshs.15,000/= monthly pending determination of the appeal. He asserts the appeal raises triable issues including improper apportionment of parental responsibility in favour of the child considering the circumstances of both parties. He referred to the judgment of the trial court delivered on 22nd October 2024, his affidavit of means sworn on 26th September 2024, and the ruling of the trial court on the contempt of court application delivered on 29th January 2026. Replying Affidavit 5.The respondent filed a replying affidavit dated 23rd February 2026. In it, she stated that the applicant had moved the High Court through a similar application in Embu HCF Misc. Application No. E015 of 2025. That the application herein was filed in the pendency of determination of the other case, which he then abandoned and is now forum shopping. She deposed that the present application is sub judice and should not be entertained any further before this court. On this,she relies on section 6 of the Civil Procedure Act. She pointed out to the court that the present application for extension of time has been filed 15 months after he impugned judgment, and that to extend time will be prejudicial to the best interests of the child. 6.It was her case that the applicant has completely refused to comply with the court’s order for maintenance. When warrants of arrest were issued against him, he frustrated the effort using his current office of MCA, but he has still refused to comply with the order. The trial court reviewed the maintenance amount from Kshs.100,000/= to Kshs.50,000/= and now the applicant is seeking further downward review of the amount yet his payslip shows that he can afford the amount ordered. She produced copies of the applicant’s payslip as evidence. She urged the court to find that the application is frivolous and that the applicant has a constitutional duty to provide for his child. Parties’ Submissions on the Application 7.The application was canvassed by way of written submissions. 8.The applicant submitted that the court should consider several factors in granting extension of time as a discretionary relief. He relied on the cases ofEdith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR), Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] KECA 199 (KLR), Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KECA 782 (KLR) and Kiu & another v Khaemba & 3 others [2021] KECA 318 (KLR). 9.He also relied on Order 42 Rule 6(1) of the Civil Procedure Rules and the cases of RWW v EKW [2019] KEHC 6523 (KLR) and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR). He argued that he will suffer prejudice if stay of execution is not granted. That if he is committed to civil jail, he risks losing his office of MCA which move will permanently terminate his income, leaving him unable to provide for the minor. 10.Further reliance was placed on section 38 of the Civil Procedure Act, section 121(6) of the Children Act and the case of Beatrice Wanjiku Muhoho v Honourable Attorney General [2012] KEHC 3644 (KLR) in which the court found that section 38 of the Civil Procedure Code is inconsistent with the bill of rights. He argued that he has not refused to pay the amount ordered. Rather, he lacks means to do so. Civil jail should be a last resort when it is proved that the applicant has refused to pay the ordered amount yet he has means to do so. He referred to the case of Hussein Marshallo Guracha v Marshallo Guracha & another [2020] KEHC 8832 (KLR). He urged the court to exercise its discretion judiciously in this matter making reliance on the case of JCK v EC [2025] KEHC 11964 (KLR). 11.The respondent submitted relying on the statutory bar of sub judice under section 6 of the Civil Procedure Act as discussed in the case of Speaker of the National Assembly & another v Senate & 12 others [2021] KECA 282 (KLR). She argued that there is a similar application pending before this court which the applicant did not prosecute, hence the present application ought no to be entertained. She also relied on section 79G of the Civil Procedure Act and the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 12.She argued that the delay in appealing has not been sufficiently explained to enable the court to exercise its discretion in the matter. That factors such as length of delay, chances of success of the pending appeal, and the degree of prejudice must be borne in mind, considering that this is not a commercial dispute. Reliance was placed on the case of Leo-Sila Mutiso v Rose Hellen Wangari Mwangi Civil. Application No. 251 of 1997. 13.She argued that the applicant is undeserving of a stay order under order 42 Rule 6 of the Civil Procedure Rules, having not provided any form of security for costs. That no relief should be granted to the applicant until the contempt is purged as was held in Hadkinson v Hadkinson [1952] All ER 567. That execution of the order was carried out in a lawful manner and the fact that the applicant is a public office holder does not exempt him from execution procedures allowed under the Civil Procedure Act. Issue for Determination 14.The issue for determination is whether the application has merit. Analysis and Determination 15.In Embu HCF Misc. Application No. E015 of 2024, the applicant moved this court through a notice of motion dated 12th November 2024 seeking extension of time to appeal and stay of execution among others. On 03rd December 2024, the application was allowed ex parte, and the applicant was ordered to file his appeal within 21 days of the ruling. On 04th December 2024, the respondent filed a notice of motion seeking inter alia, that the orders issued on 03rd December 2024 be set aside and the applicant’s application dated 12th November 2024 be heard inter partes. The respondent’s application was heard inter partes and it was determined through a ruling delivered on 30th April 2025. The ruling allowed prayers 3 and 4 thereof, thus: “3) That the application dated 12th November 2024 be subjected to a fresh inter partes hearing; and 4) That the respondent applicant's replying affidavit to the application dated 12th November 2024 be admitted as properly and duly filed as a response to the said application.” 16.After that, the file went to sleep as there is no further activity thereon until now, as the applicant failed to continue prosecuting the matter. He moved the court 10 months later and lodged a similar application; being the present application, seeking the very same orders for extension of time to appeal and stay of execution. In the present file, the applicant has gone ahead to file a memorandum of appeal alongside the notice of motion seeking, inter alia, extension of time to appeal. 17.In her replying affidavit and submissions, the respondent stated that in light of the previous application seeking the same orders, the applicant’s application herein is barred under the sub judice rule. On this basis, she asks the court to dismiss it as an abuse of the court. 18.The doctrine of sub judice is provided in law under Section 6 of the Civil Procedure Act as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 19.According to the 9th Edition Black’s Law Dictionary, sub judice means ‘under a Judge’ or ‘Before the court or judge for determination’. The application dated 12th November 2024 in Embu HCF Misc. Application No. E015 of 2024 is still pending. It was filed by the applicant against the respondent and before a court competent to hear and determine it. In Kenya Ports Authority v Ramogi & 8 others [2019] KECA 305 (KLR), the Court of Appeal held that the bar of sub judice exists to prevent the existence of a multiplicity of suits. See also the cases of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR), Malika & another v Bidii International Company Ltd & another [2023] KEHC 26161 (KLR) and Patel & Patel Ltd and another v Commissioner of Customs and Excise & 6 others [2014] eKLR. In these cases, the courts extensively discussed the bar of sub judice. 20.The bar of sub judice, therefore applies in this case in order to curb the unconscionable behaviour of litigants whose intention is to usurp judicial time and resources. In this case, it is against the best interest of a child. 21.Embedded in the application herein - which was filed 10 months after this court ordered that the application dated 12th November 2024 in Embu HCF Misc. Application No. E015 of 2024 be heard inter partes - is a clear tactic of wasting the court’s time at the expense of the minor involved. 22.In this case, there is even more significance in considering that the subject of the suit and appeal is a child, a minor. The child’s best interest is, and must always be, the overriding consideration as stipulated under Article 53(1)(e) and (2) of the Constitution as follows:“Article 53(1)(e) Every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; andArticle 53(2) A child’s best interests are of paramount importance in every matter concerning the child.” [Emphasis added] 23.It defeats reason, therefore, to consider the merits of the application herein which is barred under the sub judice doctrine. The application herein is therefore dismissed. In so dismissing the application, the court orders, in the best interest of the child, as follows:1.There being no stay order in place, the applicant be ordered to comply with the orders of the trial court issued through its judgment delivered on 22nd October 2024, failing which the respondent may institute contempt proceedings against him.2.If the applicant so chooses, he may prosecute the application dated 12th November 2024 in Embu HCF Misc. Application No. E015 of 2024 and if the said application succeeds, an appeal may then be lodged and stay orders may be granted.3.The memorandum of appeal dated 16th February 2026 was filed out of time and without the leave of court. Accordingly, the same is hereby struck out. Essentially, the file Embu HC Family Civil Appeal No.E004 of 2026 shall be, and is hereby, closed. 24.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 28TH DAY OF MAY, 2026........................R. MWONGOJUDGEDelivered in the presence of:1. No Representation for Chimei Malenya Advocate for Applicant2. No Representation for ALA Advocates for Respondent3. Francis Munyao - Court Assistant