https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6507

RDG v ADG (Family Appeal E001 & E002 of 2026 (Consolidated)) [2026] KEHC 6507 (KLR) (Family) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 6507 (KLR) Republic of Kenya In the High Court at Isiolo Family Family Appeal E001 & E002 of 2026 (Consolidated) SC Chirchir, J May 7, 2026 Between RDG Appellant and ADG Respondent Ruling (Amended pursuant to the provisions of section 99 of the Civil Procedure Act) 1.What is due for determination is the Appellant’s Notice of Motion dated 21/01/2026.It seeks orders as follows: -1.(spent)2.(spent)3.(spent)4.Pending the hearing and determination of the substantive Appeal this Court be pleased to stay the execution of the Judgment, and any subsequent decrees and the salary attachment order issued in Isiolo KCDC/E055/2025.5.Spent.6.The costs of this Application be provided for.7.Any other orders this Court may deem fit and just to grant. The Applicant’s Case 2.The Applicant states that on 12th January, 2016 the Hon. Kadhi at Isiolo Kadhi’s Court, ordered for attachment of his salary. He states that the said court had no jurisdiction to entertain the suit; that the court ignored the principles of res-judicata and failed to give any regard to the constitutional principles of equal parental responsibility and equality of spouses. He argues that in view of the above, he has an arguable appeal. 3.The Applicant further states that unless stay is granted, the Applicant will suffer substantial loss in that other dependants, he has with his 1st wife will be deprived of provisions due to the attachment of his salary. That he is the only surviving parent in respect to his other dependants, as his 1st wife has since died. 4.He further states that no prejudice will be occasioned to the Respondent since he has been providing for his children with her even prior to the issuance of the impugned order. The Applicant also states that he no longer professes the Muslim faith, and he never subjected himself to the jurisdiction of the Kadhi’s Court. 5.The Applicant finally states that the attachment went against the provisions of Section 44(i) (viii) of the Civil Procedure Act and Section 19 (3) of the Employment Act. The Respondent’s Case 6.In the Replying Affidavit sworn on 26th February, 2026 the Respondent refutes the Application’s allegation that he solely provides for his other children. She states that the school fees for one of his daughters from the first house, one Farma Rashid Dera is paid by the Applicant’s first- born son, one Osman Rashid Dera, while his father receives his pension benefits, and is therefore capable of meeting his needs. She further states that the Applicant owns 18 rooms for rental in Moyale, from which he earns extra income. It is further stated that the Applicant operates some businesses, as is evidenced by the remittances reflected in his Mpesa statement, which indicate regular remittance of between Ksh. 10,000 to Ksh. 100,000 per month. 7.The parties filed submissions which I have read and taken into consideration. 8.Order 42 Rule 6 of the Civil procedure Rules, sets out the conditions which an Applicant seeking stay of execution, pending Appeal must satisfy .The Applicant must demonstrate substantial loss if stay is not granted; the Application must be filed without undue delay; and the Applicant must provide such security as would be sufficient to to satisfy the decree, in the event that the Appeal fails. It is also trite law that the Applicant must demonstrate that there is an arguable Appeal, with high chances of success. 9.The Judgment was delivered on 12/01/2026 and the present Application was filed on 22/1/2026. There was no delay in filing of the Application. 10.On Substantial loss, the Applicant has argued that the attachment of his salary will adversely affect the maintenance of his other dependants ,one of whom is a special needs child. I am satisfied that this potential disruption of the welfare of other children constitutes substantial loss. In this regard , am further guided by the decision of the court of Appeal in John Okal Ogwayo & Ano vs Mgambi & Co Advocates ( 2019 ) e KLR in which the court of Appeal held:””The second is that relief will only be granted if it is shown that unless the orders sought are granted, the appeal would be rendered nugatory. The other expression for this are that the appeal would be rendered trifling, illusory or merely academic by reason of the apprehended harm having occurred in the intervening period, so that success in the appeal becomes a merely phyric or empty victory. The consideration is to spare the appellant undue havoc or as was stated in Reliance Bank Limited -vs- Norlake Investments Limited [2002] EA 227;…..” In the same case the court went on to cite its earlier decision in the case of Mukuma v. Abunga [1988] KLR 645, where it held , inter alia that : “……………Substantial loss is what has to be presented by preserving the status quo because such loss would render it nugatory.” 11.On security, it is not in all cases that security must be provided. The unique circumstances of each case must be considered. In the present case, the only appropriate security will be security for costs . However, the dispute here involves family members and it is the practice of the courts not to provide costs in respect to such disputes, unless it is absolutely warranted. 12.On whether there is an arguable Appeal on record, I have perused the Memorandum of Appeal. The Appellant has raised two key issues, firstly, the question of whether the Kadhi’s Court was clothed with jurisdiction to entertain the suit, and secondly whether the suit was res-judicata. Both issues are issues of law and are substantive in nature. The Appellant must be given a chance to ventilate them on Appeal. 13.In conclusion, am satisfied that the Applicant has satisfied the prerequisite requirements for stay pending Appeal. 14.Final Orders:a.There shall be a stay of execution of the judgment and decree and any subsequent orders, including attachment of Applicant’s salary in Isiolo KCDC E055 of 2025.b.The stay in (a), above is conditional upon the Applicant making a monthly remittance of Ksh. 15,000/= to the Respondent to meet the costs of maintenance of the child. The Appellant will further pay the child’s school fees as and when it falls due.c.In default of any one monthly instalment or default in payment of school fees, the stay on (a) above will automatically lapse, and the Hon. Kadhi’s orders of 12th January, 2016, shall automatically take effect, and without any further reference to Court.d.Each party to meet their own costs. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 7TH DAY OF MAY, 2026S. CHIRCHIRJUDGEIn the presence of:-Roba Katelo -Court Assistant.Mr. Abdullahi for the Applicant.