https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7670

Salim & 2 others v Sayyid (Civil Appeal E026 of 2026) [2026] KEHC 7670 (KLR) (Family) (25 May 2026) (Ruling) Neutral citation: [2026] KEHC 7670 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E026 of 2026 CJ Kendagor, J May 25, 2026 Between Khalid Omar Salim 1st Applicant Khalid Salim Omar 2nd Applicant Kendi Kamunchuluh 3rd Applicant and Fatuma Abdulkadir Sayyid Respondent (Being an appeal from an order issued by Hon I. Nyaboga, Kadhi in Nairobi Kadhi Court Divorce Cause No. E073 of 2021) Ruling 1.The Appellants and the Respondent are parties in a case before the Kadhi Court. Warrants of arrest were issued in execution proceedings to enforce a decretal sum for post-divorce maintenance. The Appellants have filed the present appeal, challenging the orders on the ground that they were not afforded an opportunity to be heard before the warrants were issued. 2.Alongside the appeal, the Applicants brought the instant application dated 17th February, 2026, in which they sought the following orders;a.Spent;b.Spent;c.That pending the hearing and determination of the appeal, there be a stay and setting aside of the ruling and orders of the Hon Kadhi’s Court delivered on 10th February, 2026;d.That the travel ban imposed against the 1st Appellant/Applicant pursuant to the said ruling be and is hereby stayed and lifted pending the hearing and determination of the application;e.That the travel ban imposed against the 1st Appellant/Applicant pursuant to the said ruling be and is hereby stayed and lifted pending the hearing and determination of the appeal;f.That Costs be in the cause. 3.The Applicants challenge the return of service relied on by the lower Court before the warrants were issued. According to them, the trial Court set aside the warrants and thereafter reinstated them without any formal hearing and without new material being placed before the Court. 4.The Respondent opposed the application, asserting that the Appellants are using the appeal as a means to delay and obstruct the enforcement of the decree issued in 2021. Analysis and determination 5.Having considered the grounds of appeal, the application, and the submission by the parties, I find that the singular issue for determination is whether the appellants have met the threshold for grant of stay of execution. 6.The principles governing the grant of an order for stay pending appeal are set out in Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules which provides as follows:(2)) 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 and 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. 7.The Court in RWW versus EKW [2019] eKLR held as follows: -“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however must balance the interests of the Appellant with those of the Respondent.’’ 8.I have considered the Grounds of Appeal from which it is evident that the 1st appellant was particularly dissatisfied with the warrants that were issued in execution. They challenge the procedural legality of the warrants. 9.According to the Respondent, the decretal amount was Kshs.2,641,800/=. She stated that the 1st Appellant paid Kshs.820,000/= under a consent agreement, but subsequently defaulted, leaving an outstanding balance of Kshs.1,953,000/=. This is the amount she is seeking to enforce through execution. 10.The loss so contemplated under Order 42 Rule 6(2) must be real and demonstrable. 11.If the stay is not granted, then the warrants of arrest are likely to be executed and the appeal which challenges the procedural legality of the warrants will be rendered nugatory and the appellants are likely to be arrested. 12.The application was brought without unreasonable delay. The ruling was delivered on 10th February, 2026 while the instant application was filed on 17th February, 2026. 13.In determining the security, I associate with the observations of the Court in Port Florence Community Hospital v Lakepharm Limited [2026] eKLR where it held as follows;“The purpose of a security in a stay application is to preserve the subject matter of an appeal. The nature of the security is in the discretion of the Court. Like all other discretions, the same should not be exercised capriciously but judiciously. What really matters is that the Court has to ensure that the security offered comforts the successful party in the event an appeal is unsuccessful”. 14.The warrants were issued in execution of a decree that is lawfully in place. The issue before the Court on appeal is the procedural legality of the warrants, not whether the decretal amount is due. In his oral submissions, counsel for the Appellants stated that they are challenging the manner in which the decision (on warrants of arrest) was reached, not the reason for the decision. The Appellants further, through counsel, undertook to pay Kshs.150,000/= on or before 16th March, 2026 and to pay Kshs.50,000/= every month for the months of April and May when this ruling is due. 15.The undertaking given above is a reassurance to the Respondent that the 1st Appellant will continue to pay the decretal amount even as the appeal is heard and determined. 16.In LAK v COO [2024] KEHC 7968 (KLR), the Court observed:“It is trite that he who comes to equity must come with clean hands. It is duplicitous of the Applicant to approach this court seeking to stay orders, which she has in any event disobeyed.” 17.The Appellants have applied to the Court for discretionary relief and therefore they must demonstrate goodwill through compliance with the undertaking given, showing that they are ready to obey the orders against which they seek relief. Disposition: 18.After due consideration, the Court makes the following orders with regard to the application dated 17th February, 2026:a.The Court grants a stay of execution of the orders issued by the Kadhi Court on 10th February, 2026 subject to confirmation that the undertaking given on 12th March, 2026 has been honoured;b.Upon such confirmation, the 1stAppellant shall continue to remit to the Respondent a monthly payment of Kshs.50,000/= until the hearing and determination of the appeal;c.The stay order is further contingent on the Appellants filing the record of appeal within 21 days;d.In default of any of the above, the stay of execution order granted herein shall automatically lapse, and the Respondent shall be at liberty to proceed with execution without further reference to Court;e.Costs shall abide the outcome of the appeal. 19.The matter shall be scheduled for mention to confirm the filing of the record of appeal and to confirm directions on the admission of the appeal. 20.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 25TH DAY OF MAY, 2026.………………………….HON C. KENDAGORJUDGEIn the presence of ;Court Assistant: BerylMs Fatuma- RespondentNo attendance for Appellants/Applicants