https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11247

YAA v CMK & another (Family Appeal E071 of 2026) [2026] KEHC 11247 (KLR) (Family) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11247 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Family Appeal E071 of 2026 CJ Kendagor, J July 21, 2026 Between YAA Appellant and CMK 1st Respondent HKA 2nd Respondent Ruling 1.This Appeal arises from the judgment of the Children’s Court at Nairobi (Hon. B.M. Ochoi, Chief Magistrate) delivered on 25ᵗʰ July, 2025 in MCCHCC/E2016/2023. Being dissatisfied with the access orders granted therein, the Appellant lodged a Memorandum of Appeal dated 11ᵗʰ May, 2026. Simultaneous with the Appeal, the Appellant filed a Notice of Motion of even date seeking: -i.Spentii.That this Honourable Court be pleased to stay execution of the judgment delivered on 25ᵗʰ July, 2025 by Hon. Bernard Ochoi herein pending hearing and determination of this applicationiii.That this Honourable Court be pleased to stay current proceedings at the lower court pending hearing and determination of the intended appealiv.That this Honourable Court be pleased to grant the Applicant leave to file an appeal out of the statutory timelinev.That this Honourable Court be pleased to issue conservatory orders that the status quo be maintained pending hearing and determination of both the application and this appealvi.That the costs of this application be provided for 2.The application is supported by the affidavit of the Appellant sworn on 11ᵗʰ May, 2026. She deposes that she is the biological mother of the minor and has been the child’s sole caregiver since the demise of the child’s father in 2022. She states that the child, who is six years old, is of tender age and requires her care, comfort and parental guidance. She further avers that the trial Court’s orders requiring the child to be picked up and dropped off at a police station are traumatic to the child and impede the development of a healthy relationship with the Respondents. 3.The Appellant further deposes that she has since been transferred by her employer to Mombasa, where she now resides with the child, and that travelling to Nairobi to facilitate the monthly access is financially burdensome and emotionally taxing to both herself and the child. She contends that compliance with the impugned orders has become impracticable and contrary to the child’s best interests. 4.She also avers that following one of the access visits, the child returned with an infected wound on his right hand requiring medical treatment. She further states that the Respondents reside in different counties and, being retired, may not be in a position to adequately provide for the child’s needs during access. According to the Appellant, the application has been brought promptly and in good faith, the Respondents will suffer no prejudice if the orders sought are granted, and unless the Court intervenes, both she and the minor stand to suffer trauma and irreparable harm. She therefore urges the Court to allow the application in the best interests of the child. 5.The application is opposed through the Replying Affidavit sworn by the 1ˢᵗ Respondent on 3ʳᵈ June, 2026 on her own behalf and on behalf of the 2ⁿᵈ Respondent. She deposes that the Children’s Court fully heard and determined the dispute in the best interests of the minor and contends that the Appellant has not offered any sufficient explanation for the delay of approximately nine months in filing the Appeal. She therefore urges the Court to decline leave to appeal out of time and the prayer for stay of execution. 6.The Respondents aver that it is in the best interests of the minor to maintain a relationship with his paternal grandparents, a relationship which they contend the Appellant has consistently frustrated despite subsisting Court orders. They deny that the access orders occasion prejudice to the Appellant and state that they have always been willing to have the handover take place at a different child-friendly location instead of the Central Police Station. They further depose that during the last supervised access on 17ᵗʰ April, 2026, the Appellant obstructed the exercise of access, necessitating police intervention, and maintain that the child was safely returned to her thereafter. 7.The Respondents further depose that they have since applied before the Children’s Court to review the visitation arrangements in light of the child’s relocation and to have the child examined by a court appointed pediatrician after observing that he had sustained an injury to his arm. They aver that the child informed them that the injury occurred while in the Appellant’s custody and deny the allegation that it arose during access. They also dispute the Appellant’s assertion that they reside separately, maintaining that they continue to live together as husband and wife, and further question whether the Appellant’s relocation to Mombasa was genuinely occasioned by an employment transfer. 8.The Respondents finally aver that the trial Court interviewed the minor in chambers and observed that he enjoyed a good relationship with them, and contend that the impugned judgment fairly balanced the competing interests while safeguarding the child’s welfare. They maintain that they have complied with all Court orders and that the present application has been brought in bad faith with the sole objective of frustrating the Respondents’ lawful access to the minor. They accordingly pray that the application be dismissed with costs. Submissions: 9.The Appellant filed written submissions dated 8ᵗʰ July, 2026 in support of the application. On the prayer for leave to appeal out of time, counsel submits that Section 79G of the Civil Procedure Act vests the Court with discretion to admit an appeal filed out of time where good and sufficient cause is shown. It is argued that in matters concerning children, procedural technicalities should not override the constitutional imperative that the best interests of the child are paramount. Counsel contends that the intended appeal raises arguable issues regarding the propriety of the access orders and the application of the best interests principle, and that the Respondents will suffer no prejudice incapable of compensation if leave is granted. Reliance is placed on MA v R O O [2013] eKLR, NS v FAM (Children’s Appeal Case E016 of 2023) [2023] eKLR and HKN v BMO [2019] eKLR. 10.On the prayer for stay of execution and stay of proceedings, counsel submits that the intended appeal is arguable and raises substantial questions concerning the propriety of the access orders and the welfare of the child. It is contended that unless stay is granted, the appeal will be rendered nugatory as the impugned access orders will have been implemented before the appeal is determined. Counsel further argues that the existing access arrangements, particularly the requirement that the child be picked up from a police station, are not in the child’s best interests and are likely to occasion him emotional distress. It is further submitted that the balance of convenience favours preserving the status quo pending the determination of the appeal and that, since the decree is non-monetary, the requirement for security under Order 42 Rule 6 of the Civil Procedure Rules is inapplicable. Reliance is placed on SM v DK & Another (Civil Appeal No. 120 of 2023) [2024] eKLR and DMO v TKT & Another (Civil Appeal E059 of 2023) [2025] KEHC 3109 (KLR). 11.On costs, counsel submits that children’s matters should not ordinarily attract an award of costs against either party, as such proceedings are not adversarial in nature but are intended to safeguard the welfare of the child. It is therefore urged that the costs of the application abide the outcome of the appeal or, alternatively, that each party bears their own costs. Counsel accordingly prays that the Court grants leave to appeal out of time, stays execution of the impugned judgment and further proceedings before the Children’s Court pending the hearing and determination of the appeal. 12.The Respondents filed written submissions dated 9ᵗʰ June, 2026 opposing the application. On the prayer for stay of execution and stay of proceedings, counsel submits that the Appellant has failed to satisfy the conditions under Order 42 Rule 6 (2) of the Civil Procedure Rules. It is argued that the Appellant has neither demonstrated substantial loss nor established that the impugned access orders would occasion irreparable prejudice if implemented. Counsel contends that the orders merely facilitate the child’s right to maintain a meaningful relationship with his paternal grandparents and that it is the Respondents and the child who stand to suffer prejudice if the orders are stayed. Reliance is placed on RWW v EKW [2019] KEHC 6523 (KLR). 13.On the prayer for leave to appeal out of time, counsel submits that the application was filed approximately nine months after delivery of the impugned judgment and that no satisfactory explanation has been offered for the delay. It is argued that extension of time is a discretionary remedy and that the Appellant has failed to establish good and sufficient cause under Section 79G of the Civil Procedure Act. Counsel further submits that litigation involving children requires expedition and finality, and that reopening the dispute would prejudice both the Respondents and the minor. Reliance is placed on Nairobi City Water & Sewerage Co. Ltd v Ahmed [2023] KEHC 24152 (KLR), Thuita Mwangi v Kenya Airways [2003] eKLR, and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR. 14.With regard to the interim orders granted by the Court, counsel submits that the Appellant’s Motion did not seek interim relief pending the hearing of the application and that the Court cannot grant relief not specifically prayed for. Reliance is placed on Lamba v National Social Security Fund & Another [2023] KECA 124 (KLR) for the proposition that a court may only grant the reliefs sought by the parties. 15.On the merits of the access orders, counsel submits that the Children’s Court interviewed the minor in chambers and found that he enjoyed a good relationship with the Respondents. It is contended that the Appellant has consistently frustrated the Respondents’ access to the child, resulting in contempt proceedings and enforcement orders before the trial Court. Counsel further argues that the child was happy during the previous access visits and that the Appellant’s allegations regarding the access arrangements are unfounded. It is submitted that the child’s welfare extends beyond financial provision to include emotional, psychological, social and familial needs, including maintaining a meaningful relationship with his paternal family. 16.The Respondents nevertheless express willingness to vary the monthly access arrangements to one or two weeks during school holidays and to change the handover location to a child-friendly venue. They therefore urge the Court to dismiss the application with costs and to maintain, or appropriately vary, the existing access orders. Analysis & Determination: 17.I have considered the Notice of Motion, the affidavits on record, the rival submissions by counsel, the authorities cited and the applicable law. In my view, the following issues arise for determination:a.Whether the Appellant has established sufficient cause to warrant leave to file the Appeal out of time;b.Whether the Appellant has satisfied the threshold for the grant of an order staying execution of the access orders issued by the Children’s Court pending the hearing and determination of the Appeal;c.What orders should issue as to the interim access arrangements pending the hearing and determination of the Appeal;d.Who shall bear the costs of the application. Whether the Appellant has established sufficient cause to warrant leave to file the Appeal out of time 18.Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, provided that an appeal may be admitted out of time if the appellant satisfies the Court that she had good and sufficient cause for not filing the appeal in time. 19.The principles governing the exercise of this discretion are well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court stated that:“Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court... A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court... Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court... Whether there will be any prejudice suffered by the respondent if the extension is granted...” 20.The impugned judgment was delivered on 25ᵗʰ July, 2025 while the present application was filed on 11ᵗʰ May, 2026, approximately nine months later. I have carefully considered the Supporting Affidavit and the material placed before the Court. It is true, as submitted by the Respondents, that the Appellant has not furnished a comprehensive explanation accounting for the entire period of delay. 21.Ordinarily, such delay would militate against the exercise of the Court’s discretion. However, the discretion donated under Section 79G is intended to advance substantive justice and must be exercised in light of the circumstances of each case. 22.This appeal concerns access arrangements relating to a minor. The constitutional and statutory framework governing children’s matters obligates this Court to place the child’s welfare above all other considerations. In M A v R O O [2013] eKLR, while considering interim custody pending appeal, the High Court observed:“In determining who shall have the temporary custody of the child pending the hearing and determination of the appeal, this court shall be guided by the best interest of the child.” 23.Similarly, the High Court in NS v FAM [2024] KEHC 13021 (KLR) reiterated that:“Children cannot wait. Any delay in determining questions relating to children is likely to be prejudicial to their welfare. It is a general principle that proceedings relating to children must be determined expeditiously to avoid occasioning prejudice to the children on account of delay.” 24.Having perused the Memorandum of Appeal, I am satisfied that the appeal is not frivolous. It raises arguable questions concerning the implementation of the access regime fashioned by the trial Court, and more so in view of the evidence now on record that the child resides and attends school in Mombasa. Those issues merit interrogation on appeal. 25.I am equally satisfied that any prejudice likely to be suffered by the Respondents can adequately be mitigated by appropriate interim access arrangements pending the hearing and determination of the appeal. On the other hand, shutting out the Appellant from the appellate process at this stage would foreclose consideration of questions directly affecting the welfare of the child. 26.Accordingly, notwithstanding the unsatisfactory explanation for the delay, I am persuaded that this is an appropriate case for the Court to exercise its discretion under Section 79G of the Civil Procedure Act. In the peculiar circumstances of this case, and guided by the paramountcy principle under Article 53 (2) of the Constitution and Section 8 of the Children Act, I admit the Appeal out of time. Whether stay should be granted 27.The Appellant seeks an order staying execution of the access orders issued by the Children’s Court pending the hearing and determination of the Appeal. The Respondents oppose the application, contending that the Appellant has failed to satisfy the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. 28.I have considered the judgment of the learned trial magistrate. It is evident that the Children’s Court carefully considered the competing rights and interests of the parties. The Court declined to grant the Respondents joint legal and actual custody, finding that the Appellant should retain full legal and actual custody of the child. At the same time, the Court recognized the importance of preserving the child’s relationship with his paternal grandparents and consequently fashioned a structured and supervised access regime, coupled with co-parenting sessions and a gradual expansion of access subject to favourable therapeutic assessment. 29.I am therefore unable, at this interlocutory stage, to conclude that the trial Court acted outside the law or exercised its discretion injudiciously. Indeed, the record demonstrates that the learned magistrate interviewed the child, considered the Children’s Officer’s report, and fashioned orders intended to balance the child’s need for stability with his right to maintain a relationship with his paternal family. Those findings will ultimately be interrogated during the hearing of the Appeal. 30.Indeed, the material placed before this Court demonstrates that following the delivery of the judgment, the Appellant relocated to Mombasa together with the child. The Supporting Affidavit is accompanied by documentation relating to her residence and the child’s schooling in Mombasa, and the Respondents themselves acknowledge that they have filed an application before the Children’s Court seeking review of the access arrangements on account of the child’s change of residence. The fact of the child’s relocation is therefore not seriously contested. 31.The existing access orders would require the child to be presented monthly in Nairobi for supervised access. In the present circumstances, strict implementation of those orders would necessarily require regular travel between Mombasa and Nairobi by a child of tender years. In my view, such an arrangement is likely to occasion unnecessary disruption to the child’s routine, schooling and general welfare pending the determination of the Appeal. 32.I am equally unpersuaded that the child’s best interests would be served by completely suspending contact with the Respondents. I have not seen any reason to believe that the arrangement will presently pose a threat to the child’s welfare while the appeal is pending hearing and determination. 33.This Court is enjoined by Article 53 (2) of the Constitution and Section 8 of the Children Act to treat the child’s best interests as the paramount consideration. As observed in M A v R O O [2013] eKLR:“In determining who shall have the temporary custody of the child pending the hearing and determination of the appeal, this court shall be guided by the best interest of the child.” 34.Given the circumstances of this case, I believe adjusting the logistics of access to match the child’s current residence best aligns with the constitutional requirement. Therefore, although I see merit in staying the specific access orders issued by the Children’s Court, I do not think it is suitable to suspend access entirely. An interim access arrangement, adapted to the child’s present situation and in place until the Appeal is heard and decided, will better serve the child’s welfare. What orders will be appropriate? 35.Having found that the access orders issued by the Children’s Court ought to be stayed, it remains for this Court to fashion interim arrangements that safeguard the welfare of the child pending the determination of the Appeal. 36.The evidence on record shows that the child presently resides with the Appellant in Mombasa and attends school there. It would not be in the child’s best interests to require him to undertake frequent travel to Nairobi solely for purposes of facilitating monthly access. Equally, it would not be in the child’s best interests to sever his relationship with the Respondents pending the hearing of the Appeal. 37.In my view, an appropriate balance can be achieved by preserving the Respondents’ right of access while relocating the venue of such access to the child’s current place of residence. Such an arrangement minimizes disruption to the child’s routine while maintaining the bond between the child and his paternal grandparents pending the hearing and determination of the Appeal. 38.To further ensure that the exchanges are conducted in a manner that promotes the child’s welfare, the parties should, in the first instance, agree on a suitable public, child-friendly venue within Mombasa for the handover and return of the child. Should they fail to reach agreement, it is appropriate that the Children’s Officer, Mombasa, designates the venue, having regard to the child’s place of residence and overall welfare. The Appellant shall serve this order upon the Children’s Office Mombasa to facilitate compliance. 39.I also note the Respondents’ contention that the trial Court interviewed the child in chambers before rendering its decision. While that may be so, this Court considers it prudent to defer the question whether a further interview with the child is necessary until the Record of Appeal has been filed. At that stage, the Court will have the complete record before it and will be better placed to determine whether such an interview is necessary for purposes of ascertaining the child’s views and wishes in accordance with Section 8 (3) of the Children Act. Disposition: 40.In the end, I make the following Orders:a.Leave is hereby granted to the Appellant to file the Appeal out of time. The Memorandum of Appeal dated 11ᵗʰ May, 2026 is hereby deemed as duly filed upon payment of the requisite court fees, if not already paid;b.There shall be a stay of execution of the access orders issued by the Children’s Court in MCCHCC/E2016/2023 on 25ᵗʰ July, 2025 pending the hearing and determination of the Appeal;c.In lieu of the stayed access orders, and pending the hearing and determination of the Appeal, the Respondents shall have supervised access to the child on the last Saturday of every month between 10:00 a.m. and 4:00 p.m.;d.In view of the evidence on record that the Child resides with the Appellant in Mombasa, all such access shall take place in Mombasa and the Respondents shall not remove the Child from Mombasa under any circumstances during the access visit;e.Being a Child of tender years, the Child shall be accompanied by the Appellant who is his mother or a neutral party nominated by the Appellant, capable of protecting the Child; The Appellant or the accompanying neutral party must refrain from interfering with the interaction unless the Child’s safety is directly threatened;f.The parties shall, within seven (7) days of the date of this Ruling, agree on a specific public, child-friendly location in Mombasa for the pick-up and drop-off. In default of agreement, the In-Charge Children Officer at the Children’s Office at Mombasa shall designate the location after considering the Child’s place of residence and shall communicate the designated location to the parties at least seven (3) days before the scheduled access date;g.The Appellant shall serve a copy of this Order upon the In-charge Children’s Office Mombasa forthwith;h.Upon the filing of the Record of Appeal, this Court shall consider whether it is necessary to interview the child for purposes of ascertaining his views and wishes regarding access in accordance with Section 8 (3) of the Children Act;i.The Memorandum of Appeal shall be served within seven (7) days of the date hereof;j.The Record of Appeal shall be filed and served within thirty (30) days of the date hereof;k.Costs of the Notice of Motion shall abide the outcome of the Appeal. 41.Matter to be mentioned before the Deputy Registrar within the term to confirm that the Parties will have accessed the Ruling and the resultant extracted orders. 42.Orders accordingly. DATED AND SIGNED AT NAIROBI ON THIS 21ST DAY OF JULY, 2026.………………………….HON C KENDAGORJUDGEIn the presence of:Court Assistant: Beryl