https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7299

MAO v JOO (Suing as the father and next friend of DJO) (Civil Appeal E015 of 2026) [2026] KEHC 7299 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7299 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E015 of 2026 DK Kemei, J May 29, 2026 Between MAO Appellant and JOO (Suing as the father and next friend of DJO) Respondent (Being an appeal from the Ruling and Order of the Honourable Lily. M. Nafula (SPM) delivered on 17th March, 2026 in SIAYA MCCHCC NO. E017 OF 2025) Ruling 1.The Appellant herein has filed an application dated 23rd March, 2026 brought under Order 42 rule 6 of the Civil Procedure Rules principally seeking for orders of execution of the trial Court’s ruling issued on 17th March, 2026 in Siaya Children’s Case No. E017 of 2025: J.O.O Vs M.A.O pending the hearing and determination of the Appeal. 2.The application is supported by the grounds set out thereunder and by the affidavit of the Appellant sworn on even date. The Appellant’s gravamen is inter alia; that the trial court delivered a ruling on 17/3/2026 and ordered the issue of the alleged marriage (minor) to undergo a mandatory DNA test in a bid to determine his paternity and the costs being borne equally by the parties; that the counsels were granted 30 days to secure the Government facility to conduct the DNA as well as the Appellant availing the minor; that the trial court acted contrary to the interests of the minor by subjecting him forcefully to medical examination without any reasonable cause being shown as to why he should be submitted to undertake a DNA test; that the trial court ignored the Appellant’s evidence that the minor’s biological father was one DDOO as indicated on the birth certificate and that the said biological father is performing his role towards the child pursuant to the provisions of Article 53(2) of the Constitution; that the Respondent equally did not lay any evidentiary basis on parenthood and he equally did not challenge the Appellant’s evidence that the minor was born on 26/9/2017 at Milimani Maternity Hospital in Kisumu and which was registered on 29/9/2017 under entry number 00417XXX and birth certificate number 757XXX issued in respect of the minor now claimed by the Respondent; that the trial court condemned the Appellant to cater for half costs of the DNA test yet she had not sought for such an order; that the Appellant has an arguable appeal with high chances of success; that the Appellant stands to suffer great prejudice if the order of stay is not granted; that the application has been filed without delay; that it is in the interest of justice to allow the application. 3.The Respondent opposed the aforesaid application vide a replying affidavit dated 1st April, 2026 wherein he averred inter alia; that the Appellant’s contention that the subjecting the minor to a mandatory DNA test should not be reason for grant of stay of execution; that the Appellant has not made an averment and willingness to provide security for costs; that if the court is inclined to grant the order sought, then it should direct that the amount be deposited in the joint names of both Advocates in an interest earning account; that the Appellant is mischievous and is employing al the tricks in the book to delay or frustrate the execution of the decree in favour of the Respondent and that the application should be dismissed with costs. 4.The application was canvassed by way of written submissions. 5.Learned counsel for the Appellant reiterated the Appellant’s averments in her supporting affidavit. Counsel revisited the requisite provisions which guide applications for orders of stay of execution of decrees pending an appeal and went ahead to cite Order 42 rule 6(2) of the Civil Procedure Rules which provides for the conditions of stay thus:“No order for stay of execution shall be made under sub rule (1) unless—(a)the court is satisfied that substantial loss may result to the Applicant unless the order is made; (b) that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”In Elena Dondoladoya Korir vs Kenyatta University (2012) eKLR Justice Nzioki Wa Makau set out the criteria used to determine the grant of stay of execution pending appeal thus:“the application must meet a criteria set out in precedent and the criteria is best captured in the case of Halal & another vs Thornton & Turpin (193) Ltd KLR 365 where the Court of Appeal, presided by Gicheru JA, Chesoni & Cockar Ag JA held that:“The High Court’s discretion to order stay of execution of its order or decree is fettered by three conditions.i.Sufficient cause.ii.Substantial loss would ensue from a refusal to grant stay.iii.The applicant must furnish security.iv.The application must be made without unreasonable delay.Again, in Equity Bank Ltd vs West Link MBO Ltd (2013) eKLR the Court of Appeal held that an appeal does not operate as a bar to execution of judgment hence a party seeking stay of execution pending appeal must therefore demonstrate that they are not using the appeal to delay justice. They must not only show that they have an arguable appeal but also that they have come to court without undue delay. 6.It was submitted that, the present appeal herein faults the trial Court’s decision that sought to subject the Appellant’s son herein forcibly to a DNA test, absent any prima facie evidential basis laid by the Respondent. The foresaid order equally condemned the Appellant to pay half costs of the DNA test, when she had not prayed for the DNA test orders or at all. It is the Appellant’s contention that the trial magistrate acted contrary to the interests of the minor herein by subjecting him forcibly to a medical examination without any reasonable cause being shown thereby ignoring the evidence by the Appellant that the minor’s biological father was DDOO and not the Respondent herein, as outlined in the birth certificate marked as MAO-2. Further, it is the Appellant’s case that the Respondent did not play any evidentiary basis on parenthood or challenge the Appellant’s evidence that the minor was born on 26th September, 2017 at Milimani Maternity Hospital in Kisumu and which birth was registered on XXth September, 2017, under entry number 00417XXX and the birth certificate no. 757XXX issued. 7.Drawing from the foregoing, it was submitted that there is need to preserve the substratum of the appeal which can only be done through an order of stay of execution of the Ruling and Order appealed from this, in order to prevent a miscarriage of justice wherefore the Appellant’s son would forcibly be subjected to a DNA test and the Appellant condemned to pay half costs for a DNA test she did not seek. 8.It was further submitted that the law is that a party seeking stay must provide security for the due performance of the decree or order as may ultimately be binding on the Appellant. It is however the Appellant’s submission that in the circumstances of this appeal, this being a Children’s case, this Honourable Court has powers to grant stay of execution orders without demanding that the Appellant should furnish it with security for the due performance of the decree. It was further contended that due performance in this context if the appeal were to fail would be for the Appellant to simply submit the minor for a DNA test and to cater for half costs thereof. Again, subjecting the Appellant to a financial liability would be unfair and unreasonable yet this was not a money decree. 9.Learned counsel placed reliance in the High Court’s Decision at Nairobi in RWW v EKW (2012) eKLR where Justice Asenath Ongeri granted stay orders of execution to the Applicant without demanding for security to be furnished for the due performance of the orders. It was thus urged that the appeal herein being a Children’s matter, this Court not to subject the minor’s mother to further financial liability since in the event the Appeal were to fail, the Appellant would simply present the minor for the DNA test. 10.It was finally contended that the Respondent, in an attempt at compromising this Application for stay proposed an unjustified sum of Kshs. 50,000/=, a figure plucked from thin air as security for costs would plainly be deemed to be the half costs of the DNA test that would mean that the same would be payable by the Appellant in the event the appeal fails and which would then be the Respondent’s total approximated costs for a DNA test at a government facility at 100,000/=, an extortionate figure if not excessive and unreasonable. It was contended that DNA tests do not even cost that much and the aforesaid proposal is a deliberate attempt by the Respondent at burdening the Appellant with further financial liability. That the proposed figure would not only be punitive and exorbitant but also meant to deprive the Appellant a chance at her appeal and to further burden her with financial liability. If that is so, then it means that the poor do not have a chance at their appeals before this Court due to lack of money. The court was urged not to allow the Respondent’s suggestion. 11.On delay, it is was submitted that the Appellant moved promptly to file the application dated 23rd March, 2026 and as such the same was made without undue delay 12.Finally, it was submitted that the Appellant has an arguable Appeal with high possibility of success and has equally met all the conditions for stay. That she will therefore be immensely prejudiced if the trial Court’s order is not stayed pending the determination of the Appeal. 13.The Respondent’s counsel raised two issue for determination namely, whether the Applicant will suffer substantial loss if the orders sought are not made and whether the Applicant has deposited the security for costs for due performance of the decree. 14.The Respondent relied on the contents of his replying affidavit and contended that the Appellant has not complied with the provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules and hence the application should be dismissed with costs. The conditions as per the above provision are as follows:1.Substantial loss may result to the applicant unless the order was made;2.The application was made without unreasonable delay; and3.Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 15.Evidently, the three (3) prerequisite conditions set out in the said Order 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and”. It connotes that all three (3) conditions must be met simultaneously.Counsel placed reliance in the cases of KiplagatKotut vs Rose JeborKipngok [2015] eKLR,Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLRand Kenya Shell Limited vs Kibiru,“the common thread was that a stay of execution will not be granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules are satisfied.” 16.It was submitted that it is sufficient if an applicant seeking a stay of execution would have demonstrated to this Honourable court that he would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to the Respondent in the unlikely event his or her appeal was successful. That the Applicant ought to show the substantial loss that she will suffer in the event the orders sought are not given. ‘It is not enough to merely state that loss will be suffered.’ On this ground, reliance was placed on the case of Osero& Company Advocates vs. Easy Properties Limited (2014) eKLR. 17.It was also submitted that the contention raised by the Appellant to the effect that subjecting the minor forcibly to mandatory DNA testing without any reasonable cause having been shown as to why he should be submitted to the same is not a serious reason to grant the stay. In that regard, it was contended that the Applicant had not satisfied the condition of demonstrating that she would suffer substantial loss if the order for stay of execution pending appeal was not granted. 18.As regards the second issue, it was submitted that the Applicant has not sated anywhere in her supporting affidavit that she is ready and willing to abide by the terms and conditions of the stay of execution which clearly shows that she is not ready to deposit the security for costs which is amongst the conditions for stay of execution. In that regard, it was submitted that the Applicant is not ready and willing to deposit the security as required at any given time. 19.It was finally submitted that if the court is inclined to grant a stay, then it should direct that the Applicant to deposit the amount in an interest-earning account in the joint names of the advocates for the parties since he is not sure of the Appellant’s means. 20.Learned counsel urged that this application be dismissed with costs to the Respondent as the same lacks merit and is an abuse of the court process and that the Applicant is just mischievous and employing all manner of tricks to frustrate the execution of the decree in favour of the Respondent. 21.I have given due consideration to the application and the rival submissions. It is not in dispute that the parties herein had been litigating over the paternity of a child in the trial court and that they have since been directed to arrange for DNA tests at any of the Government institutions and that they should shoulder the costs thereof equally and that the Appellant is to avail the minor for the aforesaid tests. It is also not in dispute that the Appellant has since lodged her appeal vide the Memorandum of Appeal filed herein. I find the issue for determination is whether the application has merit. 22.It is noted that the Appellant’s application is predicated upon the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules which provides the requisite conditions to be satisfied before an applicant obtains an order of stay of execution pending an appeal. The same are as follows:i).Substantial loss may result to the applicant unless the order was made;ii).The application was made without unreasonable delay; andiii).Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 23.As regards the aspect of whether the application has been filed without undue delay, it is noted the impugned ruling was delivered on 17/3/2026 while the present application was filed on 23/3/2026. This was within six days and hence there was no delay at all. 24.As regards the aspect of whether the Appellant stands to suffer substantial loss, the Appellant has come out quite strongly that she stands to be prejudiced if the order of stay is not granted as she will be burdened to chip in costs of DNA as well as avail the minor for the DNA tests yet she had not sought for such prayers. She further contended that her appeal, which raises triable issue will be rendered nugatory as by then she will have been forced to comply with the court order. Indeed, substantial loss is the cornerstone of stay jurisdiction. In Kenya Shell Ltd vs Kibiru & Another [1986] KLR 410 the Court of Appeal held:“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.’’Also in RWW V EKW [2019] eKLR the court held:“The purpose of stay of execution is to preserve the subject matter so that the appeal is not rendered nugatory.’’Looking at the issues raised in the Appellant’s Memorandum of Appeal as well as the averments in her affidavit in support of this application, it is clear that she has raised quite some germane issues meriting a trial. I find that the appeal is an arguable one and thus if an order of stay is not granted at this stage, then the same will be rendered nugatory in the end and only serve the purpose of being a paper judgement and nothing more as the status quo would have changed substantially.Again in Butt Vs Rent Restriction Tribunal [1982] KLR 417 it was held that the court’s discretion in stay applications should be exercised in a manner that does not render an appeal nugatory.It is therefore clear that the Appellant herein stands to suffer great prejudice if the order for stay is not granted. Indeed, the Respondent has obtained judgement and is entitled to the fruits of the said judgement. However, it is not in dispute that the trial court’s ruling is not final as the parties had been directed to perform certain tasks before resuming back to the trial court for the finalization of the matter. Hence, the Respondent’s discomfiture could be cushioned by an award of costs. In any event, the parties herein are litigating over the paternity of a child born out of the marriage, and thus I find that it is fair and just that each of them should be given an opportunity to ventilate their rival claims and have their day in court. Iam satisfied that the Appellant has met the condition regarding substantial loss. 25.As regards the aspect of security for costs, the same is also a pre-requisite for an applicant seeking for orders of stay pending an appeal to comply. The Respondent has contended that the Appellant has not come out clearly as to whether she is ready and willing to deposit security for costs for the due performance of the decree. Indeed, the Appellant vide her affidavit did not mention the issue save that she expected the Respondent to understand that she has been put in an awkward situation yet she had not sought for the impugned orders in the trial court. The Appellant has also averred that the matter involves a child and that the court ought to be considerate in the matter. Indeed, orders made by the court are discretionary in nature, It has emerged from the trial court proceedings that the parties herein had had some relationship and that the battle royale now is about the paternity of the child born out of the alleged relationship. The trial court has already directed the parties herein to identify a Government institution to oversee the DNA tests and further that the Appellant has also been directed to avail the minor for the aforesaid purposes. I find that compelling the Appellant to deposit security for the due performance of the decree at this stage would not be fair and just in the circumstances. I find that no prejudice will be suffered by the Respondent if an order for deposit for security is not made at this stage and that the issue of costs would be determined during the determination of the appeal. It is also instructive that the matter involves a child, wherein each party stakes a claim onto and thus an order on security will further polarize the relationship between the parties even as they arrange to comply with the order of the trial court. Iam persuaded that the circumstances warrants that an order on deposit of security should not be imposed upon the Appellant. 26.In view of the foregoing observations, I find merit in the Appellant’s application dated 23/3/2026. The same is allowed in terms of prayer No.3 thereof. The costs of the said application shall abide in the appeal. Parties are now directed to proceed and take directions on the disposal of the appeal on a priority basis. DATED AND DELIVERED AT SIAYA THIS 29TH DAY OF MAY 2026.HON. D. KEMEIJUDGEIn the presence of:Ms. Achieng ..........................................for AppellantMs. Otieno.........................................for RespondentMaureen.............................................Court Assistant