[2023] KEHC 25981 (KLR)

AK v SMM (Civil Appeal E010 of 2022) [2023] KEHC 25981 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25981 (KLR)

Republic of Kenya

In the High Court at Garissa

Civil Appeal E010 of 2022

JN Onyiego, J

November 17, 2023

Between

AK

Appellant

and

SMM

Respondent

Judgment

1. Through a plaint dated 24. 02. 2022, the plaintiff/appellant sought for a judgment against the defendant for orders that:i.Custody of the two minors herein be granted to him.ii.The defendant be allowed a supervised visit to the minors.

2. After the filing of the suit, the parties reached an agreement and further filed a parental responsibility agreement dated 15. 04. 2022 which was later abandoned as the suit proceeded for hearing.

3. The appellant being dissatisfied with the finding of the trial court, filed an appeal vide a memorandum of appeal dated 06. 10. 202 wherein the following grounds were preferred:i.The trial court erred in law by directing that the appellant be paying a monthly maintenance of Kes. 20,000/- to the respondent.ii.The learned trial magistrate failed to observe that the matter before him was a children’s matter and therefore, the court ought to have taken into consideration the fact that the appellant has equal responsibility(ies) to his other children.iii.The trial court erred in law and fact by failing to strictly observe the laws as per Islamic Sharia Law by conducting a children matter in open court despite the objection of the appellant.iv.The trial court did not consider that the children department presented their report without the input of the appellant. That the same would have helped the court reach a just determination.v.The appellant was not given an opportunity to ably defend himself considering the fact that the trial court ignored the averment that the respondent is a drug addict.vi.The trial court erred in law and fact by refusing to give the appellant enough time with his children considering he is a responsible citizen and a medical personnel.

4. It was thus prayed that the appeal herein be allowed and the judgment and/or decree of the SPMC at Mandera Children Case E001 of 2022 be set aside.

5. The court directed that the appeal be canvassed by way of written submissions.

6. The appellant who was self-represented submitted that the trial court erred by failing to take into account the parties’ financial position before making an order for financial provision. That the trial court failed to direct that parties file their affidavit of means as the same would have helped the court reach a logical conclusion. He further reiterated that the trial court failed to appreciate that he relies on a single source of income to support her thirteen children and his school going brother and wife.

7. He placed reliance on the case of KMMv MMO [2022] eKLR where the High court held that while considering the order for financial provision, for the maintenance of children, the trial court is obligated to take into account the income or earning capacity, property and financial resources of the parties. Both then and in the foreseeable future.

8. He argued that the trial court completely deviated from the parental responsibility agreement previously entered and filed by the parties. It was his prayer that the court directs that he makes a contribution of Kes. 10,000 towards the maintenance of the children as was previously agreed in the said parental responsibility agreement.

9. He further faulted the trial court for issuing orders that he ought to have limited supervised access to the two minors. That there was no evidence presented before the court to support such. He relied on the case of KMN v Children’s Court & Another [2015] eKLR where the High Court frowned upon unnecessary impediments placed by the trial court that hindered access to the child and termed them as an impediment to the stable development of a child. He thus submitted that as a parent, he shares equal responsibilities with the respondent and therefore, this court should review the evidence herein afresh and come up with a fair determination.

10. The respondent who was also self-represented submitted in her submissions filed on 15. 09. 2023 that the trial court considered the evidence on record and thereafter reached a fair judgment considering the best interest of the children subject of the appeal. That the trial court considered the financial capability of the appellant as a man of means who works for gain as a medical officer.

11. It was her case that the trial court did not deviate from the parental responsibility agreement alluded to by the appellant. Additionally, that the appeal herein was meant to delay justice and further prevent the respondent from enjoying the fruits of her judgment. She urged this court to dismiss the appeal with costs.

12. This is a first appeal. The duty of a first appellate Court was succinctly stated by Wendoh J in JWN v MN [2019] eKLR in the following words:“It is settled law that the duty of the first appellate court is to re-evaluate the evidence tendered in the subordinate court, both on points of law and facts and come up with its findings and conclusions”.

13. PW1 testified that he is an employee of Mandera County Government and working as Principal Lab Technologist. That together with the respondent, they were blessed with two children, KA born on 23. 02. 2020 and MA born on 10. 12. 2021. It was his evidence that upon divorcing the respondent, he called the elders to help them reach a solution in reference to the well-being of these children in vain.

14. He averred that the respondent had a history of epilepsy and schizophrenia thus rendering her incapable of taking care of the children. That she maintains company of drug users and even at one time, she was found along the way by the KPR officers at 1. 00 p.m. signifying that the children herein were left unattended. He contended that the respondent was in the norm of leaving the children to friends while she chews miraa elsewhere. On cross examination, the appellant reiterated that the respondent was mentally ill and was not in a position to take care of the children in question.

15. PW2, Hussein Hamud testified that at one point, while on patrol together with other officers, they were told of the defendant who allegedly was new in the area, who was chewing miraa and smoking at a certain house. That he informed the plaintiff/appellant and together, they managed to take the respondent home.

16. PW3, Mohamed Billow Gabane testified that he is a community elder and that he participated in several attempts to resolve the dispute between the parties. He stated that the appellant had desired to have custody of one child and the other be given to the respondent. It was his case that the respondent was a very difficult person.

17. DW1, SM on the other hand testified that she was the mother of the children herein and that she wished to be granted custody of the children. She also stated that she wished to cater for meals, medical care and rent of the house they lived in. She denied being a smoker. She further stated that on the very day when it was alleged that she was found smoking cigarette, she had sought for refuge as the plaintiff had driven her out of their house.

18. The trial court after considering the facts and evidence before it reached a judgment delivered on 23. 09. 2022 thereby directing that;i.The defendant/respondent shall have sole and exclusive custody of the two minors until the age of majority.ii.The Defendant shall provide basic nutrition, shelter, water and sanitation facilities for the two minors until the age of majority.iii.The plaintiff shall cater for the minors’ basic education in public learning institutions (including school related expenses) when they attain school going age, until completion of their secondary education.iv.As maintenance for the minors, the plaintiff shall pay the defendant Kes. 20,000 on a monthly basis. In the event of default, the plaintiff’s salary be attached.v.The plaintiff shall have limited supervised access to the minors which shall be during alternating weekends and half of the school holidays.vi.Through the Sub County Children’s Officer, the plaintiff will access the minors in an open public area.vii.No order as to costs.

19. It is trite that the parties as parents of the children have equal responsibility to provide for their children as provided by Article 53(1) of the Constitution.

20. Section 31 of the Children’s Act defines parental responsibility to mean all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.

21. The duties referred to above include, but are not limited to—a.the duty to maintain the child and, in particular, to provide the child with—i.basic nutrition;ii.shelter;iii.water and sanitation facilities;iv.clothing;v.medical care, including immunization;vi.basic education; andvii.general guidance, social conduct and moral values;b.the duty to protect the child from neglect, abuse, discrimination or other differential treatment;c.the duty to—(i)provide parental guidance in religious, moral, social, cultural and other values that are not harmful to the child;(ii)determine the name of the child;(iii)procure registration of the birth of his or her child;(iv)appoint a legal guardian in respect of the child;(v)receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child;(vi)facilitate or restrict the migration of the child from or within Kenya;(vii)upon the death of the child, to arrange for the burial, cremation of the child or any other acceptable method of interment; and(d)the duty to ensure that, during the temporary absence of the parent or guardian, the child shall be committed to the care of a fit person(3)………………(4)A person who does not have parental responsibility over a particular child, but has care and control over the child, may, subject to the provisions of this Act, do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.

22. Further, Section 113 of the Children’s Act provides that:The Court may order the person against whom a maintenance order is made to make a financial provision for the child by—(a)periodic payments; or(b)such lump sum payment, as the Court shall deem fit, to the person in whose favour the order is made, or to any other person appointed by the Court.

23. The trial court ordered that the defendant/respondent shall provide basic nutrition, shelter and medical care to the minors. On the other hand, the plaintiff/appellant was directed to provide Kes. 20,00 per month for maintenance.

24. In the case of SMW v EWM [2019] eKLR the court stated that:“Sharing of parental responsibility for children should not be arbitrary. It should be well laid out by the parties. Children courts have a responsibility, to pursue the procedure that least disrupts the lives of the children involved, that least adds to the friction between warring parents. My humble view is this:1. The first point of stop should have been the social inquiry report. S.218 (1) (2) (a) of the Children Act clearly lays out the ‘welfare check list’. The principles laid out there provide for the court an objective checklist which can be investigated through a request for a social inquiry report from the Department of Children Services. Through this report the court would be provided with an independent analysis of the state of the child or children as at the time the matter is being litigated.It would also bring on board the voices of the children to be heard above the cantakary that is their parent’s disagreement. The report would give the status quo of the welfare of the children, and the status of each parent through a home visit, if necessary, school visit. The court would also get a glimpse of the underlying issues which the warring parents would have an opportunity to bring on board giving the court the chance to interrogate the necessity for psycho social support and any other appropriate ...”

25. From the judgment delivered by the trial court, it is clear that financial means of the parties was not discussed at all. In the same breadth, the respondent did not list the monthly requirements for the two minors. The question that lingers in my mind is whether the amount of Kes. 20,000 is a considerable amount for the two young children.

26. It is trite that when considering an order for financial provision for the maintenance of a child, the trial Court is obligated to take into account the income or earning capacity, property and financial resources of the parties both then and in the foreseeable future. The trial Court should also consider the parties’ financial needs, obligations or responsibilities. As regards, the children, the Court is required to bear in mind their financial needs and circumstances.

27. In the same breadth, the court is obligated if need be to have filed a social enquiry report. The same brings about the input of all parties without forgetting the voices or opinions of the minors involved therein.

28. On the ground that the court failed to strictly observe the law as per Sharia law by conducting a children matter in the open court despite the objection of the appellant the record is clear. For starters, it is the appellant who approached the trial magistrate’s court and thereafter, the respondent. It is my view that by the action(s) of the parties herein, the court herein had a duty to reach a conclusion as a suit had been brought before it and that it had jurisdiction under the children’s Act.

29. On ground five that the appellant was not given time to defend himself exhaustively, the same in my view is not supported by the record. It is clear that the plaintiff/appellant presented his case and further called his witnesses in support of his case and finally closed his case. In my view, the plaintiff/appellant was accorded more time to prosecute his case in comparison to the respondent. It follows that the said ground is misleading and therefore must fail.

30. On the ground that the trial court erred in law and fact by refusing to grant the appellant enough time with his children, this court is alive to the fact that ordinarily, custody of children of tender years will often be granted to the mother of the child unless it is demonstrated that there are exceptional circumstances to grant custody to the father. However, it is my view that a social inquiry would always be necessary as the same would aid a court in reaching a logical conclusion.

31. In the instant case, in as much as the court ordered for a social enquiry report, the same did not include the defendant/appellant’s input. It therefore follows that the said report could not be considered. The trial court in my view could have ordered for another report by a different officer directing that the plaintiff/appellant’s input be included. From the said report by Alikheir Haji Somo filed in court on 24. 08. 2022, the court was not informed whether the plaintiff/appellant had forfeited the opportunity to have his input considered. It is my humble view that the trial court erred in proceeding to determine the suit without considering the input of the plaintiff/appellant in reaching its determination.

32. The appellant contended that the respondent was not fit to be granted actual custody of the children as she had a history of epilepsy and schizophrenia. It goes without saying that indeed he who alleges must prove. The appellant did not present any evidence before this court to prove his allegations. As a general rule, custody of children of tender age is ordinarily given to the mother unless there are exceptional circumstances. None of the exceptions has been presented before court. In any event, the appellant submitted that he has another wife and 13 children implying that he has a much bigger responsibility than he can bear. Although relevant, the interest of children must be balanced.

33. In full recognition of the above and for the reason that the children herein are still of tender years, it was only noble for the trial court to place the actual custody of the minors unto the respondent.

34. Having discussed the above and having in mind that the suit herein revolves around the best interest of the children, this court notes that the major dispute is in relation to the amount of monthly remittance by the plaintiff/appellant in terms of maintenance. In the same breadth, it is not lost to this court that the plaintiff/appellant had stated that he was ready to contribute an amount of Kes. 8,000/- on a monthly basis towards the maintenance of the said children. That he has been faithfully paying the said amount from the date of the delivery of the impugned judgment. Additionally, that the respondent together with the minors live in their matrimonial/family home. On the other hand, the defendant/respondent stated that she was willing to provide medical care and food to the minors.

35. In my considered view, this court is obligated while considering any disputed matters involving children to give primacy to the best interest of children. This is in consonance with Article 53(2) of the Constitution which states that: -“A child’s best interests are of paramount importance in every matter concerning the child.”

36. The above Constitutional imperative is further underscored by Section 2 of the Act which states that:“best interest of the child” means the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution and section 8 of this Act; section 2 of the Children’s Act

37. Guided by the above principles and in the given circumstances, it is my sincere belief that dispensing with the suit herein would work in the best interest of the children herein.

38. Accordingly, I make the following orders that:i.The defendant/respondent shall have actual custody of the minors.ii.Both parents shall have joint legal custody on the minors.iii.The plaintiff/appellant shall have unlimited access of the minors on alternate weekends and half of the school holidays.iv.The plaintiff/appellant shall cater for the minors’ school fees and all school related expenses.v.The defendant/respondent shall provide for food, clothing and medical care to the minors.vi.The plaintiff/appellant shall remit to the defendant/respondent a monthly amount of Kes. 15,000/- by 10th of every new month.vii.Each party shall bear its own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF NOVEMBER, 2023J.N. ONYIEGOJUDGE