https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8489

RWN (Suing as Next of Kin of LMS) v CKS (Children's Appeal Case E122 of 2025) [2026] KEHC 8489 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8489 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Children's Appeal Case E122 of 2025 HK Chemitei, J June 18, 2026 Between RWN (Suing as Next of Kin of LMS) Applicant and CKS Respondent Ruling 1.The application dated 11th August 2025 by the Applicant seeks the following orders:(a)That pending the hearing and determination of this appeal this Court be pleased to grant interim custody of the minor LMS to the Appellant.(b)That pending the hearing and determination of the appeal this Court do consider that Appellant’s kinship application where day to day care temporarily be exercised by the minor’s grandmother ENN a kinship caregiver under the Appellant’s overall supervision pursuant to Section 122 and 188 of the Children’s Act 2022.(c)That the Court grants leave for the Appellant to progressively transition into full physical custody of the minor based on a structured time line that accounts for the school calendar and the minor’s physicals psychological adjustment.(d)That the Court grant leave to the Appellant (mother) to supervise and progressively transition into full custody of the minor based on structured timelines, taking into account the child’s academic year and psychological readjustment.(e)That the Court do issue an order restraining the Respondent from removing the child from the jurisdiction of this Court and from the Republic of Kenya pending the hearing and determination of the appeal.(f)That the Court do issue orders compelling the Respondent to release the minor’s passport to the 1st Appellant (the mother) for purposes of balancing scales of justice and allow her to make an application for US visa (petition1-130) for the minor as the Respondent has had the privilege to do so for Austria.(g)That the Court do issue an order staying the execution of the judgement and orders of HON. DR Alice W Macharia issued on 31st July 2025 in Milimani MCCHCC/E2017/2024 to the extent that they authorize the relocation of the child to Austria.(h)That the Court do issue orders necessary for the welfare and the best interest of the minor. 2.The application is based on the grounds thereof and the Applicant’s sworn affidavit dated the same date. 3.The substance of the application is that the Applicant was dissatisfied with the ruling by the trial Court hence an appeal before this Court. 4.The Applicant therefore seeks a stay of the trials Courts judgement and further prays that the minor be entrusted under the custody of the Applicant’s mother ENN as the Applicant’s seeks to have him relocated to United States of America where she is working. 5.She further depones that the Respondent’s plan relocation to Austria does not augur well for the minor as it lacks adequate details concerning the minor’s schooling among other necessities. 6.The Respondent has opposed the application vide his long affidavit sworn on 10th September 2025 in which he has argued that the Applicant has not demonstrated any new issues that were not raised at the trial Court. 7.That he was adequately prepared to continue taking care of his child with whom he has had since 2018 as found by the trial Court. 8.He further demonstrated that relocating to Austria was not going to disadvantage the minor in any way as he had already prepared well including the residential and schooling issues. That the child in any case would be staying with the step children with whom they have been together all along. 9.The Respondent vehemently opposed the child to be left with the Applicant’s mother for the simple reasons that he was alive and well and that the said grandmother had not made any application for guardianship over the minor. 10.He further deponed that the Applicant was residing in the USA and had not even made any previous attempt to relocate the minor to stay with her. Analysis And Determination 11.The Court has perused the application as well as the supporting affidavits. They did not file any submissions as directed. 12.The issue before me is whether the Applicant’s prayer in particular for stay pending appeal ought to be granted. 13.For the orders to be granted the Applicant must satisfy the provisions of Order 44 of the Civil Procedure Rules governing stay of proceedings pending appeal. 14.There is no doubt that the Applicant and the minor are the biological parents of the minor. It is also undisputed that from the year 2018 the Respondent has had the actual custody of the minor. 15.Based on the above uncontested facts I do find the orders by the trial Court to have the Respondent continue with the actual custody of the minor plausible. 16.The Applicant during the appeal might of course raise other issues but for now the Court is satisfied with the trial’s Courts finding. 17.At the same note it is not in dispute that the Applicant wishes to relocate the minor to USA. This prayer was never raised at the trial Court and I find it not consistent at this juncture to raise it as the issues before me are those which took place at the trial Court. 18.The same applies to the prayer that the Applicant’s mother being granted custody of the minor while the Applicant is away in USA till she organizes his paperwork and have him joint her. This is a novel issue which ought to be raised at the trial Court for consideration. 19.In many words therefore I do not find, merit in the application. The Respondent from his replying affidavit has clearly demonstrated that he has the means and capacity to take care of the minor. He has adequately prepared him for Austria relocation together with the rest of the siblings and the annexures to his affidavit states as much. 20.More importantly Section 122 of the Children’s Act on appointment of a guardian kicks in when the minor has no parents or they have since passed on which is not the case herein. 21.In summary I find that the Applicant has not demonstrated any loss she stands to suffer if the application is not allowed. She will still have the opportunity to see the minor during school holidays and in any event prepare him for eventual visit to USA if the visa is allowed. 22.The grandmother should hold her horses as the Applicant and by extension the Respondent are alive and well and able to take care of the minor. There is nothing demonstrated at least before this Court that the Applicant who in any event has equal parental responsibility will be unable to take care of the minor whether in Austria or in Kenya. 23.The application is otherwise dismissed. Let the appeal be processed for hearing. 24.Costs in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.H. K. CHEMITEIJUDGE, FCIArb.