https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12031

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E053 OF 2026** **WALKER KANGETHE ……………..…….………………….. APPELLANT** **VERSUS** **DIANA KENDI …………………....…………………….…. RESPONDENT** ***(Being an appeal from the decision of Hon. Elizabeth Muiru, SPM, delivered on 27th March, 2026, in the Nairobi Children’s Court Case No. E420 of 2023)*** **RULING** 1. The parties in this case are the biological parents of **DKK,** a minor. The Respondent sued the Appellant at the Children Court, Nairobi, seeking custody and maintenance. 2. Through the judgment dated 27th March, 2026 the Trial Court granted the following orders for custody and maintenance; 3. ***Both parties are granted joint legal custody of the minor;*** 4. ***The Plaintiff is granted physical and actual custody of the minor*** 5. ***The Defendant is allowed access to the minor on alternative weekends during the school term;*** 6. ***The school holidays shall be shared equally, with the Defendant having the 1st half, which shall be alternated;*** 7. ***The special holidays such as Easter and Christmas / New Year shall be alternated yearly with the Plaintiff going first;*** 8. ***The Child shall not be removed from the jurisdiction of this Country without consent of parties or leave of court;*** 9. ***The Defendant shall provide school fees and school related expenses. Parties shall discuss and agree on change/ choice of school;*** 10. ***The Defendant shall provide medical cover under his employer;*** 11. ***The Plaintiff shall provide shelter, food and clothing;*** 12. ***The Defendant shall provide shelter, food and clothing during his access period;*** 13. ***There shall be no orders as to costs;*** 14. ***Liberty to apply.*** 15. Aggrieved by the said decision, the Appellant lodged the present appeal. The Memorandum of Appeal contends that the trial Court dismissed the Appellant’s defence without considering the facts tendered and the applicable law. 16. The Appellant simultaneously filed a Notice of Motion dated 9th April, 2026 supported by the Supporting Affidavit of even date; the Appellant seeks, *inter alia,* the following orders: - 17. ***Spent*** 18. ***THAT there be a temporary stay of the execution of the orders of Hon. Elizabeth Muiru, Senior Principal Magistrate given on 27th March 2026 pending hearing and determination of the Application inter-parties.*** 19. ***THAT the Court be pleased to Order the Respondent not remove the minor from his current school, pending the hearing and determination of this application and or Appeal.*** 20. ***THAT the court be pleased to stay execution of the orders of Hon. Elizabeth Muiru, Senior Principal Magistrate given on 27th March, 2026 pending hearing and determination of the appeal filed by the Appellant herein.*** 21. ***Costs be provided for.*** 22. Order (iii) was granted pending consensus between the parties, and in the absence of such consensus, pending the hearing and determination of this application. 23. The Respondent filed a Replying Affidavit dated 4th May 2026 in response to the Appellant’s application. 24. The Appellant filed written submissions dated 10th June, 2026 while the Respondent filed submissions dated 13th July, 2026 which the Court has duly considered. 25. The Appellant’s case is that he is single-handedly fully taking care of the minor’s medical, school fees and related expenses, food and clothing. He argues that despite there being a joint parental responsibility, the Respondent is not contributing to any of the minor’s needs. 26. He contends that a change in custody involves a change in school, physical environment, and emotional stability. He requested the Court to stay the judgment and issue interim orders that would allow the child to keep attending the current school pending the hearing and determination of the appeal. **Analysis and determination** 1. Having considered the application herein, the response and the submissions by the parties, the issue for determination is whether the Applicant has met the threshold for the grant of stay of execution pending appeal. 2. In determining matters involving children, including an application for stay of execution as herein, the best interests of the child are paramount. This is expressly provided for under **Article 53 (2)** of the **Constitution** and in **Section 8 (1)(a)** of the **Children Act.** 3. The principles applicable in handling applications for grant of stay of execution in children’s matters was well set out in the case of **Bhutt v. Bhutt Mombasa HCCC NO. 8 of 2014 (O.S.)** where the Court stated as follows: ***“In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the Civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with Article 53 (2) of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***.”*** 1. Courts are also required to exercise extreme caution before granting stay of execution. This was restated in **BRO v WJNW (Suing as Mother and next friend of DJO (Minor) [2020] eKLR**, where the Court held as follows; ***“38. It is trite that in children matters, courts should exercise extreme caution before granting stay of execution orders. This is because issues of maintenance do affect the welfare and livelihood of a minor. To allow stay will imply stoppage of some sphere of life e.g a child will not eat, dress drink or have shelter. The orders sought against the minor’s mother have a direct negative effect to the welfare of the minor whose interest ranks first in priority to those of the parents.”*** 1. I have considered the grounds advanced by the Applicant, who claims actual custody of the minor. The Applicant argues that, if a stay is not granted, custody will revert to the Respondent, which could disrupt the child’s stability. 2. It is undisputed that the child is currently enrolled in school. Granting an order for the child to remain in the same school effectively stays the judgment that grants the Respondent actual custody of the child. 3. I have read the Judgment and specifically the part that indicates that the child had been placed with third parties - the Appellant’s parents in Chuka, while the Appellant works in Nairobi. This aspect of the child’s welfare is a major issue that the Court cannot overlook, even as the appeal is pending hearing and determination. The potential change of schools could indeed affect the child’s stability, but the Court must weigh this against the circumstances presented on where the child is and with whom. 4. On the concerns about travel outside the jurisdiction, the existing order addresses this by prohibiting the removal of the child from the country without the consent of the parties or leave of the Court. 5. After reviewing the affidavit in support of the application, I see no evidence suggesting that the child’s welfare is at risk or that there are sufficient factual grounds for a stay. It will not serve the best interest of the child for the orders issued to be stayed pending the hearing and determination of the intended appeal. 6. The parties having been granted joint legal custody of the child are required to mutually agree upon a school located in proximity to the Respondent’s residence. The Respondent shall take necessary steps to secure the chosen school in a timely manner to ensure that the child does not miss classes in the new term. 7. The access and maintenance orders shall remain in effect as specified in the Judgment, pending the hearing and determination of the Appeal, or until further orders are issued by the court. 8. The upshot of the above is that the application for stay is not merited and is hereby dismissed. The costs of the application shall abide by the outcome of the appeal. 9. Orders accordingly. **DATED** and **SIGNED** at **NAIROBI** on this **27TH** day of **JULY, 2026.** **…………………..** **C. KENDAGOR** **JUDGE** **In the presence of:** Court Assistant: Beryl