https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10736

AMN v JWM (Civil Appeal E022 of 2025) [2026] KEHC 10736 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 10736 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E022 of 2025 EM Muriithi, J May 14, 2026 Between AMN Appellant and JWM Respondent (Being an Appeal from the Judgment/Decree of Honourable Grace Waithira (R.M) delivered on 25/9/2024 at Kerugoya Children Case No. E018 of 2024) Judgment 1.By a plaint dated 16/5/2024, the Respondent (the Plaintiff in the trial court) sued the Appellant (the Defendant in the trial court) seeking, a declaration that the defendant has parental responsibility over L.K.M, an order directing the defendant to discharge his parental responsibility over L.K.M, an order that the legal and actual custody of the minor, L.K.M vested upon the plaintiff, an order that the defendant shall have access to the minor, L.K.M, an order directing the defendant to meet medical bills of the minor and her education once she starts school, an order directing the defendant to pay maintenance fees of Kshs 10,000/= per month towards the minor’s upkeep and costs of the suit. The Respondent pleaded that her marriage to the Appellant was blessed with 1 issue namely L.K.M aged 1½ years. As a result of the Appellant’s infidelity which resulted in the birth of a child out of wedlock, the Respondent left the matrimonial home. The Respondent has physical custody of the minor and has been discharging the parental responsibilities on her own. 2.The Appellant did not file any defence. 3.Upon full hearing of the case, the trial court rendered thus;“a.A declaration is hereby issued that the defendant has parental responsibility over L.K.M; b. That the plaintiff shall have actual custody of L.K.M and the defendant shall have unimpeded access as agreed by the parties; c. That the plaintiff and the defendant shall have legal custody of L.K.M; d. The defendant shall meet the medical bills of L.K.M and his education once he starts attending school; e. The defendant is ordered to pay a maintenance fees of Kshs. 5,000/= per month towards the minor’s upkeep.” The appeal 4.On appeal, the Appellant vide his memorandum of appeal dated 28/2/2025 set out 5 grounds as follows:1.The learned magistrate erred in law and fact by ignoring section 32 of the children’s Act 2022 by failing to ensure parental responsibilities for both the appellant and the respondent were equally apportioned and only imposed the burden on the appellant at the exclusion of the respondent despite the case being a children’s matter.2.The learned magistrate erred in law and fact by imposing an upkeep of ksh. 5000/= a figure reached without evidence of economic means either the appellant or the respondent as required by section 95 (1) (f) of the Children’s Act.3.The learned magistrate erred in law and fact that by ignoring the evidence by the appellant that the appellant is a casual laborer who can only raise Ksh. 2500/- as a monthly upkeep for the minor.4.The learned magistrate erred in law and fact by imposing medical bills of the minor and education of the minor on the appellant and without any responsibility on the respondent.5.The learned magistrate erred in law and fact by failing to take into account the age of the minor whilst imposing Ksh. 5000/= as monthly upkeep towards him a general figure without a break down on what the amount was to cater for. Duty of the Court 5.This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Evidence 6.The Respondent testified that, “I sell at my father’s shop but I do not have enough money for the baby. I live in Karaini. I recorded statements with my advocate. I want the Court to consider it. I also wish the Court to consider my documents. I have also asked for some things such as maintenance. The Court can consider my prayers.” 7.On cross examination, she stated that, “I have asked for 10,000/= as maintenance. I have given documents to show I use 10,000/= to raise the minor. I only have the child’s medical report. I have not given it to Court. I have not given documents to show I have asked Andrew to support the minor. I sent Andrew the birth certificate via phone for him to register the child under NHIF. I have the messages they are not in Court.” 8.In re-examination, she stated that, “I want the 10,000/= to buy her clothes and food and cater for his medication. He helps the minor but he gives a little money that is not enough.” 9.The Appellant testified that, “I am not currently working. I do casual jobs. I recorded a statement on 22nd July, 2024. I want the Court to consider it as my evidence.” 10.On cross examination, he stated that, “The child is mine. I have responsibilities for the child. We should cost share because the child is ours. I have no problem with the child staying with her. I can maintain the child as she is living with the child.” 11.In re-examination, he stated that, “About maintenance, I send her what I can find. When child gets to school going age. I will pay his school fees. I have not refused to take responsibility. On the 10,000/= I cannot get that money. I would like pay 2,500/=. Submissions 12.The Appellant faulted the trial court for apportioning financial responsibility in a skewed manner in total disregard of his financial capacity, and cited In re DBG (Minor) [2024] KEHC 12147 (KLR) and SKM v MWI [2015] eKLR. 13.The Respondent urged that the sum of Ksh. 5,000 was reasonable in view of the prevailing economic times, as she was jobless and struggling to take care of the minor. In praying for the dismissal of the appeal, she urged that she had the responsibility of providing food, clothing and shelter for the minor while the Appellant catered for his school fees and medical needs. Analysis and determination 14.From the grounds of appeal as framed, the issue for determination is whether the trial court’s decision was grounded in law and supported by the evidence adduced. 15.The Respondent stated on cross examination that, “I have asked for 10,000/= as maintenance. I have given documents to show I use 10,000/= to raise the minor. I only have the child’s medical report. I have not given it to Court. I have not given documents to show I have asked Andrew to support the minor. I sent Andrew the birth certificate via phone for him to register the child under NHIF.” When she was re-examined, she restated that, “I want the 10,000/= to buy her clothes and food and cater for his medication. He helps the minor but he gives a little money that is not enough.” 16.On his part, the Appellant testified that, “About maintenance, I send her what I can find. When child gets to school going age. I will pay his school fees. I have not refused to take responsibility. On the 10,000/= I cannot get that money. I would like pay 2,500/=.” 17.Article 53 (1) (e) of the Constitution provides that, “Every child has the right 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.” 18.Section 110 of the Children Act provides that, “Unless the Court otherwise directs, and subject to any financial contribution ordered by the Court to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child — (a) it shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other.” 19.It is not lost on this court that child maintenance must be assessed fairly and proportionately to the financial means and capacity of the parents. 20.In SKM v MWI [2015] KEHC 2078 (KLR) the court (W. Musyoka J) expressed that;“Maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the child or children in question, while at the same time respecting the financial status of the parent. A child can only be maintained within the means of the parent in question.” 21.The Respondent conceded that the Appellant had been voluntarily supporting the child within his financial capability. It would be an absurdity to mulct the Appellant to pay child maintenance that is disproportionate, and far beyond his financial means. 22.The Appellant testified that he was a casual labourer who bore the additional responsibility of maintaining his other family. Nonetheless, he readily undertook to cater for medical expenses and school fees upon the minor’s commencement of schooling. 23.This court finds that a sum of Ksh.3,500 would sufficiently maintain a minor of pre-school age in the circumstances of this case. Orders 24.Accordingly, for the reasons set out above, this court finds the appeal to be partly merited and it is allowed in the following terms:1.The maintenance fee of Ksh.5,000 is hereby set aside and substituted with a sum of Ksh.3,500.2.The other orders by the trial court remained unchanged. 25.There shall be no orders as to costs.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Muriithi for the Applicants.Mr. Kipruto for Ms. Kimotho for the Respondent.