https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13033

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ISIOLO** **CIVIL APPEAL NO. E014 OF 2026.** WAKO MOHAMUD WAKO……………………………………………APPELLANT VERSUS MALICHA ABDI HASSAN………………………………………………RESPONDENT RULING. 1. The Appellant’s (Applicant) Notice of Motion dated 22.7.2026 seeks for stay of execution of the judgment and decree in Isiolo Kadhi’s court KCMISC NO. E 011 OF 2025, pending the hearing and determination of Appeal herein. **The Applicant’s case** 1. The Application is supported by the grounds appearing on the face of the Application as well as the Affidavit of the Applicant. 2. It is the Applicant’s case that unless stay is granted against the enforcement of the judgment, he will suffer substantial loss. He pleads that, the effect of the judgment is to stop him from collecting Rent from the five structures erected on plot No. 218/19/87 , yet the ownership of the same structures is under dispute; that he stands to loose custody of the children whom he has solely taken care of since the respondent habitual desertion began in February 2026, and that the minors will be subjected to a harsh environment , not conducive for their upbringing. 3. The Applicant further states that he will be forced to pay an exorbitant figure of ksh. 20,000 monthly as maintenance against an income of ksh. 40,000 and is further required to pay school fees, health costs and other provisions of the children. 4. The Applicant further states that the anticipated compensation by the National Land’s commission for the structures erected on the plot referred to herein before will solely go to the respondent unless an order of stay is issued. 5. The Appellant argues that he has an arguable Appeal. He faults the trial court’s findings on grounds that: it went against the weight of evidence; that the order on maintenance was made in complete disregard of Article 53 of the constitution, the children’s Act and the best interest principle; and finally, that the finding on the ownership of the structures erected on plot No. 218/19/87 was wrong. 6. The Applicant finally states that the Application has been filed expeditiously and therefore there was no delay in approaching the court. **The Respondent’s case** 1. In her replying Affidavit sworn on 29th July 2026 the Respondent argues that the lower court’s findings were based on sound understanding, and proper analysis of facts and the law. 2. The Respondent terms the order dissolving the marriage as also a religious ritual and that consequently once a pronouncement is made by a competent court, it cannot be reversed. 3. It is further stated that the children are young and therefore require the care and protection of a mother. The Applicant further states that one of the children, F, was assaulted on 27.7.2026 by her grandmother, resulting in the child running away to her maternal uncle. It is stated that a report of a missing child was made at Isiolo police station under Occurrence Book (OB) NO. 69/27/7/26.Apiece of paper containing the OB number is attached to the Affidavit. 4. On the issue of the structures erected on the named plot, the Respondent states that the National Land commission has started the process of demolition and compensation of the owners, and if stay is granted she will lose out on the compensation. 5. The respondent finally contends that by paying the cost of maintenance, the Applicant will only be performing his duty and that cannot occasion him and prejudice. 6. The Application was heard by way of oral submissions. **Applicant’s submissions** 1. Counsel for the Applicant submitted that the respondent was wrongfully awarded custody orders yet there was sufficient evidence that she had deserted the children on two different occasions. 2. The Applicant further submits that he was ordered to take up the entire upkeep of the children, yet parental responsibility is a shared responsibility, and therefore if the judgment is not stayed, the Appeal will be rendered nugatory. 3. The Applicant impugns an order which compelled him to meet the entire costs of maintaining the children while denying him the rental proceeds of the structures erected on the disputed plot. 4. On the alleged assault of the child F, the assault is refuted. The Applicant argues that there was no medical report to support the assault and there was no OB extract of the report made to the police on the incident. The Applicant further casts doubt on the ability of a six- year old child to cover the alleged distance of 10 kilometers on foot. **Respondents submissions** 1. The Respondent submits that she did not abandon the children voluntarily, but she was forced to leave the matrimonial home on account of her own safety which had been put at risk by the Applicant. 2. On custody, she argues that owing to the young ages of the children, they need the care and protection of a mother. 3. The respondent reiterates that child F was assaulted by her grandmother. On maintenance, the Respondent argues that under Islamic law, the entire parental responsibility falls on the father of the children. 4. On the rental proceeds from the aforementioned structures, the Respondent argues that they stand the risk of loosing out on compensation, and that in any event, the Applicant will be entitled to his share once compensation funds are paid. **The Applicant’s response** 1. The Applicant submits that notwithstanding the reason for abandonment, the respondent does admit that she abandoned the children. On the proceeds of the rental, the Applicant argues that any division of the property should await the compensation by the National land commission. 2. On parental responsibility, the Applicant has referred the court to the supreme court decision in ***Baiff vs IRFM &2others, petiton No. 35 of 2023***, in which the court discussed the extent of the applicability of the sharia law. The Applicant’s counsel finally informed the court that the children are 10, 7, 4 and 2 years of Age. **Analysis and determination.** 1. I have considered the Notice of Motion, the rival affidavits and the oral submissions. The single broad issue is whether the Applicant has met the threshold for stay of execution pending appeal. While the broad consideration on such an Application will be generally addressed, the impugned decree contains distinct orders on custody, maintenance and property, and each limb must therefore be considered separately. 2. The application is founded on Order 42 Rule 6 of the Civil Procedure Rules. Rule 6(2) requires an applicant must demonstrate that substantial loss may result unless stay is granted; that the application has been brought without undue delay, and to furnish such security as the Court may order for the due performance of the decree. The requirements are cumulative, and the decision to grant stay remains an exercise of judicial discretion. 3. In ***Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR),*** the Court of Appeal stated that the discretion should be exercised so that an appeal is not rendered nugatory, while taking account of the special circumstances of each case. In ***Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KLR 410,*** the Court of Appeal emphasised that substantial loss is the cornerstone of the jurisdiction. It is not enough merely to show that execution will occur, since execution is the lawful consequence of a judgment. 4. The Court must also balance the Applicant's right of appeal against the Respondent's right to enjoy the fruits of her judgment. That balance was explained in ***RWW v EKW [2019] eKLR:*** where the court held that ***the*** purpose of stay is to preserve the subject matter so that the appeal, if successful, is not rendered nugatory, without unjustly denying the successful party the benefit of the decree. 5. The Applicant also submits that the appeal is arguable. Though an arguable appeal is not one of the express conditions in Order 42 Rule 6(2), it is traditionally considered, as such consideration may assist the Court in assessing whether the appeal would be rendered nugatory. In the present case It is sufficient to note that the proposed appeal raises bona fide questions concerning custody, the allocation of parental responsibility, and ownership of the structures. The court is satisfied that the issues raised are arguable. 6. On delay, the impugned judgment and the present application were promptly filed upon delivery of the judgment, and the Respondent has not demonstrated any material or prejudicial delay. I therefore find that the application was brought without unreasonable delay. 7. On the various orders issued and for which the Applicant seeks stay, the court will proceed to consider each, and decide, separately. *Custody* 1. Article 53(2) of the Constitution provides that a child's best interests are of paramount importance in every matter concerning the child. Section 8 of the Children Act, 2022 makes those interests the primary consideration and requires a course calculated to safeguard and promote the child's rights and welfare. The demerits and demerits of the trial court’s order on custody is not due for consideration at this stage, but what this court must address is what is the best interest of the children for the period between now and the determination of the Appeal. 2. The four children are said to be aged 10, 7, 4 and 2 years. The Applicant states that they have been in his care since the Respondent left the matrimonial home in February 2026. The Respondent admits leaving but says she did so for her safety. She further alleges that child F was assaulted by the paternal grandmother. At present, that allegation is supported only by a paper bearing an OB number; no medical evidence, police abstract or Children's Officer's report has been placed before this Court. Conversely, the Applicant's assertions that the Respondent habitually deserted the children and that her environment is harsh have not been independently verified. 3. The court has not had the benefit of seeing the record of trial and the judgment. The Judgment attached is incomplete and no proceedings are available. Thus, based on the limited evidence available, the court is mindful to avoid a situation that may result in repeated movement of children between homes and its attendant disruption of school attendance, or an interim arrangement that practically determines the appeal. Continuity and stability are important. However, this is not to say the status quo is preserved for its own sake where it exposes a child to demonstrated harm. In this case there has been no sufficient evidence of harm to child F as aforesaid. 4. An unconditional order on stay of the custody order would leave the children with the Applicant for the entire pendency of the appeal, whereas an immediate execution would move four young siblings from the home in which they are presently said to live. On the limited and contested evidence before me, either extreme risks prejudicing their welfare, particularly in view of the absence of the children officer’s report which was reportedly not placed before court. What the court considers to be the proportionate course therefore is to preserve their present residence pending Appeal; provide meaningful access by the mother; obtain the children’s assessment report and fast-track the appeal. *Maintenance* 1. Article 53(1)(e) of the Constitution gives every child the right to parental care and protection, including equal responsibility of the mother and father to provide for the child whether or not they are married. Sections 31 and 32 of the Children Act, 2022 reinforce equal parental responsibility. Equality does not invariably mean equal contribution. The children's needs, each parent financial standing, non-monetary care and all other circumstances are relevant considerations. The respondent has argued that maintenance of children, under Islamic law is the sole responsibility of the father. However, any question concerning the interaction between Islamic law and the constitutional and statutory framework is for determination in the appeal and not at this stage. 2. The orders for the children’s food, health and education are continuing welfare obligations. I agree with the respondent’s submissions that, such Payments, properly applied to those needs are not ordinary decretal sums whose recovery from the Respondent determines substantial loss. 3. Staying maintenance would transfer the risk of the appeal to the children. The Applicant has stated that he earns KSh 40,000 but has not exhibited payslips, bank statements, accounts or other cogent material establishing inability to comply. It also emerged from the parties’ submissions and the attached decree that the Appellant has been collecting rent from the disputed structures. The obligation to pay KSh 20,000 monthly and to meet school and medical expenses, is not substantial loss within Order 42 Rule 6. I am therefore not satisfied that the maintenance limb should be stayed. 4. However, the court has already arrived at the determination that the current custody arrangement should be maintained, Consequently the final orders of this court on maintenance, particularly as determined under the immediately preceding paragraph, will accord with the said arrangement and the visitation rights of the respondent. *Rental and other proceeds from structures on plot No. 218/19/87* 1. On the structures erected on Plot No. 218/19/87, both parties acknowledge the possibility of demolition and compensation by the National Land Commission. If the compensation is paid out to one party and dissipated before the appeal is heard, the appeal on ownership of the structures may be rendered nugatory. Conversely, completely restraining compensation may prejudice the rights of both parties and may impede a statutory process involving a body that is not a party to this application. The property can be preserved without deciding ownership by requiring that any compensation attributable to the disputed structures be held in an interest-earning account in the joint names of the advocates, or deposited in Court, pending the appeal. 2. As regards rent, the court has already upheld the lower court’s finding on maintenance, on the interim. However, the court observes that, as a matter of common notoriety, in view of the current Economic situation in the country, even the entire income of ksh. 40,000 cannot adequately take care of the welfare of four children. The court therefore consider it reasonable that the Applicant be allowed to continue collecting the rental income as additional income for purposes of making adequate provisions for the children. 3. In the result, the Applicant has satisfied the requirements for a limited and conditional stay in all the issues raised in the Application. The Notice of Motion dated 22 July 2026 is therefore disposed of in the following terms: a) There shall be a stay of execution of the order transferring actual care and control of the children to the Respondent, pending the hearing and determination of the Appeal. b) The Respondent shall have unlimited and unrestricted Access to the children both at school (subject to the school rules and regulations), and at home on every weekend from Saturday at 9.00 a.m. to Sunday at 5.00 p.m.; and to reasonable access to telephone or video communication. This order is however subject to order (d) below. c). During weekends the respondent will be at liberty to take the children to her resident or such other place as she may wish for purposes of bonding with the children. Provided that neither party shall remove the children from the Court’s jurisdiction without the written consent of the other, or leave of the Court. d) The handover of the children shall take place at a neutral place to be agreed upon by the parties. In the event that the parties are unable to agree on the hand -over point, then the respondent shall pick the children from school every Friday and return them to school on Monday. The Applicant will then be responsible for transport arrangement of the children for the rest of the school week. The pick up or dropping of the children from school shall comply with the children’s school programme for any given day. e). During school holidays, the Respondent shall have actual care of the children for a period of up to Four (4) weeks or such lesser period as shall be prescribed by the school as being the school holiday. For avoidance of doubt, the period of Four weeks is the maximum, notwithstanding that the school holiday may go on for extended period(s). f). The orders on maintenance are only varied to the extent that the Applicant shall pay the ksh. 20,000 to the respondent only when she has the children for the Four weeks holiday (or any lesser period as aforesaid) . All other orders on maintenance remain undisturbed. g). pending the hearing and determination of the Appeal, neither party shall demolish or transfer ownership or, save as shall be directed hereafter, deal with the structures erected on plot No. 218/19/87. This order has no bearing to any lawful undertaking by the National Land Commission, or other Government Agency. h). The award on construction costs to the Applicant is set aside and substituted with an order that, any money which may be paid by the National Land Commission shall be deposited by the receiving party in an interest earning Bank Account in the joint names of the parties herein within 5 days from the date it is received. In default, the receiving party shall deposit the Money in court within the same period. i). The order on rental income is hereby set aside and substituted with an order that pending Appeal, the Applicant shall continue to receive the said income and defray it in maintaining the children. j). Save as otherwise ordered herein, any other order issued by the trial court is hereby stayed, pending the hearing and determination of the Appeal. k). Failure to strictly comply with the above orders shall result in automatic lapse of the orders herein. l). For expeditious disposal of this Appeal, the following orders are hereby issued: (i)This Appeal is hereby admitted. (ii). The Appeal shall proceed by way of written submissions. (iii). The Appellant to file the record of Appeal and submissions and serve the Respondent within 14 days from the date of this Ruling. Thereafter, the Respondent will file and serve her submissions within 7 days from the date of service. (iv). The Isiolo Sub-County Children's Officer shall, within fourteen (14) days, visit the respective homes, interview the parties and, in an age-appropriate manner, the children, and file a report addressing safety, continuity of care, schooling, sibling unity, attachment, the alleged assault and current living conditions and file a report. (v) This matter shall be mentioned on a date to be assigned during the delivery of this Ruling to confirm compliance with the aforegoing directions. (vi). T he Deputy Register to extract the above orders and serve on the children’s officer within the next 5 days. (m). Given the family nature of the dispute each party shall bear his or her own costs. Dated, signed and delivered at Nairobi via *Microsoft Teams* this 21st day of August 2026. S. Chirchir Judge. In the presence of: Roba Katelo- Court Assistant Mr. Nandwa for the Respondent.