https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9440

S I U v B A A (Civil Appeal E908 of 2025) [2026] KEHC 9440 (KLR) (Civ) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 9440 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E908 of 2025 AC Mrima, J June 23, 2026 Between S I U Appellant and B A A Respondent Ruling 1.The dispute before this Court arises from the decision of the Children’s Court in Nairobi, MCCHCC E626 of 2023, (hereinafter referred to as ‘the suit’) concerning the parental responsibility, custody, and maintenance of a minor, AS. The minor unfortunately suffered heart-related ailments shortly after birth, requiring significant medical intervention. 2.Before the trial Court, B A A, the Respondent herein, was vested with actual physical custody. S I U, the Applicant herein, was directed to meet several financial obligations, including school fees, school-related expenses, a comprehensive medical cover, and a monthly maintenance contribution of Kshs. 20,000 payable on the 5th day of every month. 3.Dissatisfied with the orders regarding maintenance and school fees, the Appellant filed an appeal and the instant application for a stay of execution. The application was heard by way of written submissions, hence, this ruling. The Application: 4.The Applicant moved this Court via a Notice of Motion dated 4th September 2025, under Order 42 Rule 6 of the Civil Procedure Rules. He sought the following orders: -1.Spent2.Spent.3.That pending hearing and determination of this appeal, this Honourable Court be pleased to grant an order of stay of execution of that part of the judgment of the Honourable Court in MCCHCC E626 OF 2023 delivered on 22/08/2025 by Hon. A. W Macharia that directed the appellant to pay Kshs. 20,000/= on the 5th day of every month towards the general maintenance of the minor.4.That pending the hearing and determination of the appeal, the applicant/appellant be allowed to pay Kshs. 10,000/= on the 5th day of every month towards the general maintenance of the minor. 5.The application was supported by the Applicant’s affidavit deposed to on 4th September 2025, and a Supplementary Affidavit deposed to on 17th November 2025. The Applicant asserted that his gross salary is Ksh. 129,000/-but after statutory deductions and a significant loan repayment to Kenya Commercial Bank (KCB), his net take-home pay is Kshs. 47,660/-. 6.It was his case that from his net salary, he pays for rent, food, transport, and medication for diabetes. He claimed that paying the ordered Kshs. 20,000/= leaves him with only Kshs. 27,660/=, which is insufficient to cover his own basic needs and the minor’s school-related expenses. He further asserted that he has had to borrow money over the last three months to comply with the maintenance order and annexed M-Pesa records as proof of compliance at the higher rate despite his financial strain. The Submissions 6.In his written submissions dated 19th November 2025, the Applicant argued that he had satisfied the three-pronged test for a stay of execution: substantial loss, absence of unreasonable delay, and the provision of security. 7.Regarding substantial loss, he argued that the current maintenance order would force him into a debt trap, potentially leading to civil jail or execution against his properties, thereby jeopardizing his future ability to provide for the child. To that end, he referred the Court to the case of EOG -vs- PK (Civil Appeal No. E009 of 2022) reiterating that while maintenance is mandatory, it must be within the parent’s means. Similarly, he called to his aid the decision in Bhutt -vs- Bhutt (Mombasa HCCC No. 8 of 2014) to emphasize that stay in children’s matters must consider the best interests of the child. 8.On delay, he submitted that the application was filed on 4th September 2025, just days after the August 22 judgment. For security, the Applicant offered to continue paying Ksh.10,000/= monthly, an amount he had consistently paid since March 2024. He drew support from the case of CIN -vs- JNN (Civil Appeal No. 85 of 2013) where the Court stayed a Kshs. 30,000/- maintenance order, finding it beyond the applicant’s net income of Kshs. 36,000/- and ordered Kshs. 10,000/= as security. He further cited the case of JMM -vs- PM (Civil Appeal No. 182 of 2017) where the Court granted a partial stay on a food provision order of Kshs. 10,000/=, reducing it to Kshs. 5,000/= pending appeal. The Respondent’s case: 9.The Respondent opposed the application through a Replying Affidavit deposed to on 6th October 2025. She characterized the application as frivolous and a tactic to avoid parental responsibilities. She contended that the trial Court’s judgment was well-reasoned and that the Applicant had failed to demonstrate any exceptional circumstances or substantial loss. 10.The Respondent further alleged that the Applicant has a steady income and sufficient means, and his reluctance to pay is based on a lack of willingness rather than a lack of resources. She denied that the access orders occasioned any prejudice and insisted that the Kshs. 20,000/= maintenance is necessary for the minor’s stability, noting that she herself has no stable income and bears the non-monetary burden of care. Analysis & Determination: 11.The sole issue for this Court’s determination is whether the Applicant has demonstrated, satisfactorily, the requirements for stay of execution. The principles for grant of stay of execution are proved for under Order 42 Rule 6(2) in the following way;1.No order for stay of execution shall be made under subrule (1) unless—a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.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. 2.Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. 12.A Court must, therefore, be satisfied of substantial loss, promptness in filing, and the provision of security. In children matters, the foregoing rules are viewed through the lens of Article 53(2) of the Constitution as read alongside section 8 of the Children Act. Both provisions prioritize best interest of the child. 13.A look at the above requirements now follow having in mind the above constitutional and statutory constraints. a. Delay: 14.On the issue of delay, the Applicant acted with commendable speed, filing the application within two weeks of the judgment. b. Substantial loss: 15.The Applicant’s payslip, marked ‘SIU3’ indeed shows a net income of Kshs. 47,660.67. To require him to pay Kshs. 20,000/= for maintenance, plus school fees, school-related expenses, and medical cover, would likely consume more than half of his disposable income. As held in C.I.N -vs- J.N.N [2014] eKLR maintenance orders should not punish or deprive a parent of their own livelihood. The case of SKM -vs- MWI (2015) eKLR is similarly instructive. It was observed;…. Maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the child or children in question, while at the same time respecting the financial status of the parent. A child can only be maintained within the means of the parent in question. 16.It is manifest, therefore, that substantial loss will result if the Applicant is required to pay more than his salary can cater, for both his upkeep and the minor’s. c. Security: 17.This Court notes that the Applicant has demonstrated, through Mpesa transactions marked ‘SUI4’, a history of compliance, having paid Kshs.10,000/= consistently for over a year and even attempting the higher amount recently. He also has indicated willingness to continue making a monthly payment of Kshs. 10,000/-. 18.In view of the continuing nature of maintenance, and the circumstances of the case, this Court finds the said amount is adequate given that the Applicant still shoulders other expenses , and pending the determination of the appeal. Disposition: 19.Balancing the Applicant’s right to an arguable appeal with the minor’s best interest, especially given her medical history, maintenance cannot be suspended. This Court settles for a conditional stay. 20.Consequently, the following orders hereby issue: -(a)There be a stay of execution of the judgment in MCCHCC E626 OF 2023 pending the determination of the instant appeal on condition that the Applicant shall pay a monthly maintenance sum of Ksh.10,000/= towards the minor’s upkeep, payable on or before the 5th of every month.(b)The Applicant shall continue to provide the minor’s comprehensive medical cover and cater for school fees and school-related expenses as ordered by the trial Court.(c)For the avoidance of doubt, the school shall be one agreed upon by both parents, taking into consideration the Applicant’s demonstrated financial means.(d)In the event of default on any of the above conditions, the stay orders in force shall lapse and execution to follow.(e)Costs of this application shall be in the cause.(f)The trial Court file be availed for further directions.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JUNE 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:No appearance for, Learned Counsel for the Applicant.No appearance for, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.