https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1338

UYT v MMSM (Civil Application E053 of 2026) [2026] KECA 1338 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1338 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E053 of 2026 GW Ngenye-Macharia, SO Okong'o & JO Okello, JJA July 10, 2026 Between UYT Applicant and MMSM Respondent Ruling 1.The Notice of Motion dated 12th May 2026 by UYT (the applicant) is brought pursuant to Rules 2, 5(2)(b) and 49 of the Court of Appeal Rules, 2022, sections 3 and 3A of the Appellate Jurisdiction Act, sections 4, 8 and 114 of the Children Act, Articles 28, 31, 47, 50 and 53 of the Constitution, and all other enabling provisions of the law. The applicant seeks a multiplicity of orders, which we reproduce hereunder:1.Spent.2.Pending the hearing and determination of this application inter partes, there be a temporary stay of execution and/or enforcement of the orders issued on 11th May, 2026 in Mombasa High Court Family Appeal No. E021 of 2026.3.Pending the hearing and determination of the intended appeal, there be a stay of execution, implementation, transfer and/or operationalization of the impugned orders issued on 11th May, 2026.4.Pending the hearing and determination of the intended appeal, there be an order preserving the prevailing status quo relating to:a.residence of the minors;b.schooling and educational continuity;c.counselling and therapy arrangements; (d)emotional support arrangements; and(e)daily welfare arrangements of the minors.5.Pending the hearing and determination of the intended appeal, there be an order restraining any police- assisted enforcement, forcible removal, school extraction or coercive transfer affecting the minors.6.Pending the hearing and determination of the intended appeal, any interim implementation or transition arrangements be undertaken strictly through the Children’s department, Children Officers and qualified child welfare professionals.7.Pending the hearing and determination of the intended appeal, all in camera proceedings, welfare interviews, children officer Reports, counselling notes, psychological materials and child-sensitive records relating to the minors remain confidential and sealed.8.Pending the hearing and determination of the intended appeal, no party shall disseminate, operationalize or circulate confidential child welfare materials outside the proceedings save by leave of Court.9.The costs of this Application be provided for.” 2.The brief facts as they relate to this application are that the applicant and the respondent got married in accordance with Islamic law on 19th December 2013 in Mombasa. They consummated their marriage and were blessed with two children(minors). As fate would have it, the marriage did not work and the respondent filed for divorce on 29th May 2025. The dispute culminating in this application traces its origins to Mombasa Kadhi’s Court Case No. KCDC/ E190 of 2025 in which the respondent commenced divorce proceedings against the applicant. The divorce proceedings were undefended, and judgment was entered in favour of the respondent on 25th September 2025 with orders, inter alia, granting the respondent full custody of the minors and granting the applicant the right of access. To this end, a consequential decree was issued on 26th September 2025. The applicant gained lawful access to the minors in April 2026 during the school holidays and never returned them to the respondent, who had lawful custody of them. 3.This is where the sad tale in this case begins compromising the best interest of the minor children. In an attempt to get the children back to school, the respondent filed several applications before the Kadhi’s Court to have the applicant comply with the court orders by returning the minors to the respondent. Similarly, the applicant commenced proceedings at the Children’s Court in Tononoka, in Case No. MCCHCC/E197 of 2026, and he obtained ex parte orders on 21st and 24th April 2026. Painfully, as the parties flexed their muscles and registered wins in their own corners, the minors were the ones suffering. The best interests of the minors were being sacrificed at the altar of the applicant and respondent’s superiority contest. 4.Dissatisfied with the non-issuance of interim orders by the Kadhi’s Court, the respondent proffered an appeal at the High Court in Mombasa in HFCA No. E021 of 2026, through a Memorandum of Appeal dated 27th April 2026, seeking, among others, orders setting aside the orders issued by the Kadhi’s Court on 22nd April 2026; and that the applicant hands over the minors to the respondent. 5.Together with the Memorandum of Appeal, the respondent filed a Notice of Motion dated 27th April 2026, seeking, among others, an order for the immediate release of the minors to the respondent by the applicant; and for the Officer Commanding Nyali Police Station/Sub-County Administration Police Officer to give assistance for the purpose of effecting the immediate access to the minors by the respondent. 6.The respondent’s application was placed before the High Court for directions on 28th April 2026, when the court (Visram, J.) certified the application as urgent and granted ex-parte orders for the immediate release of the minors to the respondent pending the hearing and determination of the application inter partes. Before the inter partes hearing date of the application which was scheduled for 3rd June 2026, the High Court (Visram, J.) was again moved ex parte on 30th April 2026 by the applicant, and discharged its orders of 28th April 2026 on the ground that the respondent was guilty of non-disclosure of material facts having failed to bring to the attention of the court the existence of Tononoka Children’s Court Case No. MCCHCC/E197 of 2026 (Children’s Court) and the orders made therein. 7.The respondent who claimed not to have been notified of the proceedings before the Children’s Court until she was served with the second order from the High Court issued on 30th April 2026 setting aside the earlier orders made in her favour on 28th April 2026, filed an application dated 4th May 2026 at the Children’s Court seeking an order to set aside the orders that had been made by that court on 24th April 2026, and for the suit to be struck out on the ground that it was res judicata. 8.If that was not enough, the respondent filed another application in the High Court dated 5th May 2026, seeking orders setting aside the orders made by Visram, J. on 30th April 2026; reinstating the earlier orders made in her favour by Visram, J. on 28th April 2026; the enforcement of the said orders through the assistance of the police; and maintenance of the Kadhi’s Court decree of 26th September 2025. 9.Not to be outwitted, the applicant also filed his own application in the High Court dated 7th May 2026, seeking an order striking out the respondent’s application dated 5th May 2026 on the ground that the same was incompetent, misleading and an abuse of the process of the court. The applicant also sought an order preserving the prevailing status quo and requiring the court to issue structured welfare supervision orders. 10.The two applications before the High Court were heard by W.K. Micheni, J. In a ruling delivered on 11th May 2026, which is the subject of the application before us, the learned Judge allowed the respondent’s application dated 5th May 2026, set aside the orders of Visram, J. made on 30th April 2026 and ordered the applicant to hand over the minors to the respondent on or before 13th May 2026. The learned Judge further directed that the matter relating to the custody of the minors be heard before the Chief Magistrate’s Children’s Court at Nairobi, and that all files relating to the matter in Mombasa be transmitted to Nairobi forthwith. 11.Aggrieved by that ruling, the applicant filed a Notice of Appeal dated 12th May 2026, and has now approached this Court under Rule 5 (2) (b) of this Court’s Rules, among other Rules and provisions of the law mentioned earlier in the ruling, seeking injunctive and other orders against the respondent pending the determination of his intended appeal against the ruling of 11th May 2026. In the grounds in support of the Motion, and the supporting affidavit of the applicant, UYT, the applicant states that the intended appeal is arguable and raises serious questions of jurisdiction, procedural fairness, proportionality, constitutional child-rights and welfare continuity. 12.He deposed that prior to the impugned ruling, there already existed active inter partes proceedings before the Children’s Court concerning the custody, welfare and emotional well-being of the minors. He further deposed that, unless preservatory orders are granted, the intended appeal shall be rendered nugatory as implementation of the impugned orders would fundamentally alter the prevailing welfare circumstances of the minors before appellate determination. 13.The application is opposed by the respondent vide her replying affidavit dated 15th June, 2026. The respondent has narrated the detailed chronology of the dispute between the parties, and she deposed that the Notice of Motion dated 12th May 2026 is frivolous and filed with the intention to vex the parties herein; that the application in its entirety is an outright abuse of the court process; and that the applicant is guilty of material non- disclosure. 14.The application was heard virtually on 16th June, 2026, by way of written submissions, with oral highlights. At the hearing, learned counsel Mr. Egunza appeared for the applicant, while learned counsel Mr. Ramadhan Abubakar appeared alongside Ms. Olao and Ms. Mbuthia, for the respondent. 15.In the applicant’s written submissions dated 8th June 2026, the applicant submits that the impugned ruling substantially alters the welfare arrangements of the minors, displaces active proceedings before the Tononoka Children’s Court, and authorises coercive enforcement before completion of a welfare inquiry; and that, unless this Court grants the orders sought, the intended appeal will be rendered nugatory, and the welfare of the minors will be irreparably compromised. 16.The applicant submits that pursuant to Rule 5(2)(b) of this Court’s Rules, this Court is empowered to order a stay of execution, an injunction, or a stay of further proceedings pending appeal. The applicant relies on the case of J. K. Industries Ltd. vs. Kenya Commercial Bank Ltd [1982-88] KAR 1037 and Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR for the factors this Court considers in an application of this nature. 17.As to the arguability of the appeal, the applicant submits that the intended appeal raises serious arguable issues of law and procedure including: jurisdictional error; procedural irregularity; violation of constitutional rights of the minors and, in particular, Articles 28, 31 and 53; disregard of the best interests of the child principle as provided in Article 53(2) of the Constitution; and sections 4, 8 and 114 of the Children Act, requiring that in all matters concerning children, the best interests of the child shall be the paramount consideration; an error in principle on stay; and that these grounds are not frivolous. 18.As to the appeal being rendered nugatory, the applicant contends that the implementation of the impugned orders would cause irreversible harm in relation to residence and school transfer, coercive enforcement by police, dissemination of confidential child welfare materials and termination of ongoing welfare inquiry. The applicant cites the cases of Gitiru Mwangi Githati vs. Republic [2010] eKLR and M.T.N vs. F.K.M [2018] eKLR in support of this submission. 19.On balance of convenience and the best interest of the minors, the applicant submits that the balance of convenience tilts firmly in favour of granting the orders sought; and that the status quo relating to where the minors are settled in their current residence, school and have therapeutic arrangements should be preserved. 20.The applicant closes his submissions by urging the Court to stay the execution of the impugned orders, preserve the prevailing status quo regarding schooling, counselling and daily welfare of the minors, restrain police-assisted enforcement, direct that any transition arrangements be undertaken through the Children’s Department; and that there should be confidentiality and sealing of sensitive child welfare materials. 21.The respondent filed her submissions dated 15th June 2026. The respondent submits that the application dated 12th May 2026 is hinged on the proceedings of the Children’s Court, which were fraudulent in nature and were conducted in her absence, thereby violating her right to be heard under Article 50(2) of the Constitution. 22.The respondent further submits that the applicant, in obtaining custody orders in the Children’s Court, failed to disclose to the learned Magistrate material information that the respondent had had custody of the minors since May 2022, as per the decree issued on 26th September 2025 by the Kadhi’s Court at Mombasa in KDCDC No. E190 of 2025. The respondent further avers that in the order the applicant intends to appeal, the trial court found the orders issued by the Children’s Court to be tainted with illegalities and, therefore, ordered the applicant to hand over the minors to her; and that, by the applicant failing to hand over the children to her, he was in contempt of that order. 23.The respondent further submits that there is no competent Notice of Appeal filed by the applicant, and that, therefore, the jurisdiction of this Court has not been properly invoked; that this Court can only grant an order for stay in the event that the Notice of Appeal is lodged in accordance with Rule 77 of the Court’s Rules; that there is no evidence that a Notice of Appeal was ever lodged and served, rendering the application herein incompetent; and that the applicant cannot seek equitable and discretionary relief of stay while standing on a defective and unperfected appellate process. 24.As to the arguability of the intended appeal, the respondent submits that the applicant has failed to demonstrate the existence of an arguable appeal, and that the applicant merely expresses dissatisfaction with the decision of the superior court without identifying any serious questions of law or fact warranting interference by this Court. 25.On whether the intended appeal would be rendered nugatory, the respondent submits that the applicant has failed to establish that the intended appeal would be rendered nugatory if the orders sought are not granted. 26.The respondent closes her submissions by urging this Court to dismiss the application, in that the minors are of a young age and their best interest would be served if they are with their mother. 27.We have accordingly considered the application, the affidavits in support and in opposition thereto, the respective parties’ submissions, the authorities relied upon, and the law. In our view, the issues for determination are: whether the application is incompetent for failure to file a Notice of Appeal by the applicant; and whether the applicant has met the threshold for the grant of the relief sought. 28.It is trite law that the jurisdiction of this Court can only be invoked through lodging a Notice of Appeal pursuant to Rule 77 of the Court’s Rules. The Notice of Appeal is what grants this Court the jurisdiction under Rule 5(2)(b) of the Court’s Rules to entertain any party for whatever relief the party may be seeking under the rule. Rule 77(1) of the Court’s Rules provides that:77(1)A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court. 29.This Court has repeatedly echoed this position. In Equity Bank Limited vs. West Link MBO Limited (Civil Application 78 of 2011) 2013 KECA 320(KLR)(Civ)(31May2013) (Ruling), the Court had this to say:“9.I would at the outset respectively agree with the submission of Mr. Ahmednassir, that an application under Rule 5(2) (b) is not an appeal as envisaged by Article 164(3). For purposes of judicial proceedings an appeal is broadly speaking a substantive proceeding instituted in accordance with the practice and procedure of the court by an aggrieved party against a decision of a court to a hierarchically superior court with appellate jurisdiction seeking a reconsideration and review of the decision in his favour.10.The prerequisite for mounting an appeal to this Court in civil cases and related matters is the lodging of a Notice of Appeal within the prescribed time followed by lodging in the Court's Registry within the prescribed time the memorandum of appeal, the record of appeal, prescribed fees and security for costs. {Rules 75 (1) and 82 (1)}. However, in criminal appeals and related matters, a Notice of Appeal institutes the appeal and the only document that the appellant is required to file thereafter is a petition or a memorandum of appeal {Rules 59(1); 64 (1)}.” 30.Further, in Safaricom Limited vs. Ocean View Beach Hotel Limited & 2 others 2010 KECA 346KLR), it was stated that:“At the stage of determining an application under Rule 52. (b)there may or there may be no actual appeal. Where there is no actual appeal already lodged there nevertheless must be an intention to appeal which is manifested by lodging a notice of appeal. If there is no notice of appeal lodged, one cannot get an order under Rule 5 (2) (b) because as I have already pointed out the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgment of the notice of appeal, the Court of Appeal would have no business to meddle in the decision of the High Court.” 31.At page 25 of the Motion is a copy of the Notice of Appeal dated 12th May 2026, marked as annexture UYY-3, which was lodged in the High Court of Kenya at Mombasa. Thus, the submission by the respondent that the application is incompetent for want of invoking this Court’s jurisdiction on account of failure to lodge a notice of appeal has no basis and is dismissed. 32.Turning to the substantive issue as to whether the applicant has met the threshold for the grant of reliefs under Rule 5(2)(b) of this Court’s Rules, it is trite law that a party can invoke the Rule if he or she is seeking an order for stay of execution, stay of further proceedings or an injunction. Again, a party must satisfy the Court that the appeal or the intended appeal is arguable and that, in the absence of a stay, the appeal or the intended appeal will be rendered nugatory. Further, a relief sought under Rule 5(2)(b) is in the exercise of the Court’s discretion, which discretion must be exercised judiciously, not capriciously. 33.In Bob Morgan Systems Ltd & Another v. Jones [2004] 1 KLR 194, this Court stated that:“The powers of the Court under rule 5(2)(b), aforesaid, are specific. The Court will grant a stay or injunction, as the case may be if satisfied, firstly, that the applicant has demonstrated that his appeal or intended appeal is arguable; and secondly that unless a stay or injunction is granted, his appeal or intended appeal if successful, will be rendered nugatory.” 34.That said, it is also imperative to point out that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and merits to be argued fully. Further, it is sufficient even if the appeal raises only one triable issue. 35.As to the arguability of the appeal, a perusal of the draft Memorandum of Appeal dated 12th May 2026 discloses that the applicant complains of, among other things, that the learned Judge erred in law and in fact in: substantially interfering with, displacing and overtaking active inter partes welfare proceedings already pending before the Tononoka Children’s Court notwithstanding that the said proceedings had not been substantively placed before the court through appeal, revision or properly invoked supervisory jurisdiction; issuing mandatory interlocutory custody, transfer and enforcement orders before completion of the welfare inquiry process, Children Officer assessments, counselling review, psychological evaluation and substantive evidentiary hearing; and transferring the matter to Nairobi Children’s Court without any substantive transfer application, clearly articulated jurisdictional basis, territorial convenience inquiry, welfare continuity assessment or proportionality analysis. 36.In our view, the above grounds, among others, are no doubt arguable, and cannot be said to be frivolous or idle. To this extent, the applicant passes the first test on the arguability of the intended appeal. 37.On the second limb of the twin principle, namely the nugatory aspect, it was held in Stanley Kang’ethe Kinyanjui v. Tony Ketter & 5 others (supra) that, whether or not an appeal will be rendered nugatory, depends on whether or not what is or ought to be stayed or restrained by way of injunctive relief, if allowed to happen, is reversible; or, if not reversible, whether damages would reasonably compensate the aggrieved party. We are also guided by the observations in Reliance Bank Limited v. Norlake Investment Limited (2002) 1 EA 227, that factors which render an appeal nugatory are to be considered in the circumstances of each case and, in so doing, the Court is bound to consider the conflicting claims of both sides. 38.In this instant, the applicant contends that the implementation of the impugned orders would cause irreversible harm in relation to residence and school, coercive enforcement by police, dissemination of confidential child welfare materials and termination of ongoing welfare inquiry. He also argues that the balance of convenience and the best interests of the minors tilt firmly in favour of granting the orders sought, and that the status quo, where the minors are settled in their current residence, school, and therapeutic arrangements, should be preserved. 39.We are not persuaded that the applicant’s intended appeal would be rendered nugatory if the orders sought are not granted. In our view, the High Court did not terminate the custody proceedings which were initiated by the applicant at the Children’s Court and that in directing that the minors be handed over to the respondent on or before 13th May 2026, the court was merely creating a level playing field for the parties by restoring the status quo prevailing before the applicant instituted the said proceedings in the Children’s Court and obtained custody orders ex parte in disregard of similar orders from the Kadhi’s Court. We are of the view that the best interest of the minors would be better taken care of if both the applicant and the respondent are heard before that status quo is disturbed. We are of the view that the parties would have an opportunity to be heard by the Children’s Court as directed by the High Court and the orders of that court are appealable. 40.As we have adverted to above, whether to grant an order under Rule 5(2)(b) of this Court’s Rules is an exercise of discretion. We make further observations as to why we think that the applicant is not deserving of the orders sought. Firstly, he comes to this Court fully aware that he has flouted lawful court orders, which only gave him visitation rights of the minor children. In obedience to the said court orders, the respondent gladly made the children accessible to the applicant, and when he left with them, he did not return them to the respondent, contrary to the express orders of the court that the custody of the children was given to the respondent. Secondly, putting to mind the fact that, both constitutionally and under the Children’s Act, the best interest of children of tender age tilts to having their custody with the mother, the applicant cannot, for all intents and purposes remove the children from their mother unlawfully and expect to be granted an equitable relief. Indeed, whatever status quo he asks that we order can only be for him to do the needful as ordered by the court, which he had not done at the time of approaching this Court. 41.For the foregoing reasons, it clear to us that the applicant has not demonstrated that the intended appeal will be rendered nugatory if the stay sought is not granted. We also find and hold that the principle of balance of convenience cannot apply in this case when, in the first instance, the applicant approaches the Court with tainted hands having disobeyed court orders. Rather, the persons who are exposed to prejudice are the children themselves. They enjoyed a stable custody with the respondent only for the applicant to distort this stability without the respondent having been given an opportunity to be heard. 42.As we pen off, we emphasise the need for the applicant to pursue the issue of custody of the children through lawful means. The shoving of the minors from one parent to the other does not augur well for their psychological development. After all, access to them has already been given to him by court. We think that he is clearly taking the courts’ discretion to allow him the access of the minors for granted, but to what end? Each of the parties must take note that what is at stake are the lives of the minors who deserve better. And, therefore, adhering to lawful court orders is paramount. 43.In conclusion, we find that the applicant has failed to satisfy us that the application is merited. The same is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.G.W. NGENYE-MACHARIA......................................JUDGE OF APPEALS. O. OKONG’O......................................JUDGE OF APPEALDR. J. O. OKELLO......................................JUDGE OF APPEALI certify that this is a true copy of the originalsigned Deputy Registrar