4.The genesis of this application is the judgment delivered in Nairobi Children’s Case No. E824 of 2021 on April 1, 2022. In that judgment, Hon R.O. Mbogo Resident Magistrate whilst awarding custody of the two subject minors to their mother (the plaintiff) and made the following orders:-
5.Being aggrieved by the decision of the trial court the applicant filed the Memorandum of Appeal dated April 12, 2022. Contemporaneously with the said Memorandum of Appeal, the applicant filed this present application seeking a stay of order No. 5 requiring him to cater for the school fees of the minor children.
6.The applicant submitted that the order requiring him to pay school fees and related expenses at Kshs 30,000 was oppressive considering that he only earns a stipend of Kshs 14,250 and that he also has to cater for his own rent and upkeep. That if the said order is not stayed the Applicant is liable to be found in contempt of court and will have to face the attendant consequences.
7.As stated earlier the application was opposed. The respondent submitted that the suspension of the orders issued by the trial court would not serve the best interests of the minors. That the application was vexatious and has been filed only for purposes of annoyance.
Analysis and Determination
8.I have carefully considered the applicant before this court, the Grounds of Opposition filed by the Respondent as well as the written submissions filed by both parties.
9.Order 42 Rule 6(2) of the Civil Procedure Rules 2010 provide for the conditions to be met in considering an application for stay of execution. The court must satisfy itself that-(a)The application has been brought without undue delay.(b)The applicant stands to suffer substantial loss if the stay is not granted.(c)The applicant has provided security for the due performance of the decree.
10.In this case the judgment in issue was delivered on April 1, 2022. The present application was filed on April 12, 2022, barely two (2) weeks after delivery of said judgment. Accordingly, I find that the application was filed in timely manner.
11.The impugned orders were made in relation to the maintenance, education and upkeep of the minors. It is trite law that in matters concerning the welfare of children courts are required to give priority to the best interest of the child.
13.Likewise Children Act at section 4(2) provides as follows:-
14.In the case of BHUTT VS BHUTT – Mombasa HCCC No. 8 of 2014, the Court held as follows:-
15.The Applicant submits that the court in coming to its decision failed to take into account the fact that he was only earning a stipend of Kshs 14,250/-. He insists that he is financially incapable of meeting the maintenance orders made by the court.
16.I have carefully perused the judgment delivered in the Children Court. I find that the learned trial magistrate did put into consideration the evidence adduced by both parties and took into account the earning capacity of both parents as well as the financial needs of the minors. It came out in evidence that the Applicant is a published author who undoubtedly makes an earning from the sale of his literary works.
17.Article 53(e) of the Constitution of Kenya 2010 provides as follows:-(1)Every child has the right—(a).........................................(b).........................................(c).........................................(d).........................................(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. (Own Emphasis)
18.Section 30 of the Children Act 2022 deals with the question of Parental Responsibility. Section 32 (1) of the same Act provides for equal parental responsibility and provides that –
19.The Applicant has not denied paternity, therefore under the law he has an equal obligation to provide for the maintenance, education and upkeep of his own children.
20.The Respondent was awarded actual custody for the minors. She is providing for their accommodation, food and clothing. Additionally the Respondent was ordered by the court to top up the cost of the school fees for the minors. Therefore as things now stand the Respondent appears to be bearing the greater burden for the maintenance of the minors.
21.The Applicant as the father must also contribute towards the maintenance and education of the minors. Who does the Applicant expect to educate his children for him? The Applicant cannot shift the entire burden of raising the children to the mother alone.
22.In my view to stay the orders as prayed will negatively prejudice the minors as their right to education is likely to be adversely affected.
23.I find no merit in this application for stay. The education of the minors cannot be stayed as this will be detrimental to their best interests. I am fortified in this finding by the decision of my learned brother Hon Justice William Musyoka who in the case of SM- V- EIM  eKLR held as follows:-
23.All in all I find no merit in this application for stay of execution. The Notice of Motion dated 12th April 2022 is dismissed in its entirety. For avoidance of doubt the orders of 1st April 2022 made by the Children’s Court in Case No. E824 of 2021 remain valid and enforceable. This being a family matter I make no orders on costs.