https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10590

Kundu v Nekesa (Civil Appeal E007 of 2025) [2026] KEHC 10590 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10590 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E007 of 2025 RK Ondieki, J July 9, 2026 Between Amos N Kundu Appellant and Rosemary Nekesa Respondent (Being an Appeal against the Judgment by Hon. T.A.Madawo in Chief Magistrate’s Court at Bungoma CMCHCC No. E009 of 2023, Delivered on 3rd April, 2025) Judgment 1.I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together. 2.Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court. They include Peters Vs Sunday Post Limited(1958) EA 424, where it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. 3.In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. 4.In the primary file, the Respondent adopted her witness statement dated 22nd March, 2023 as well as the list of documents he had filed on even date. There were further documents filed dated 20th June, 2023 which she equally adopted as Exhibits in this matter. Additionally, the Respondent sought the reliefs as per the plaintiff and further said that the Appellant had absconded providing for the children in terms of upkeep, medical cover and school fees for the children since 2021. 5.The Respondent says that he earns Kshs13,000/ because she has school fees loan. However, she knows of her own knowledge that the Appellant he earns a basic of Kshs70,000/= and when he was employed by Kenyatta university, he used to earn Kshs100,000/=. Under cross examination, the witness said that she enlisted some of those above the age of 18 years because they have not attained the age of independence. They are still in school. The appellant has declined to provide for those in college. 6.The Appellant adopted his witness statements 31st December 2024 and 10th May, 2024 as his evidence in chief. He said that he has been paying fees for his children till college level. However, in the year 2013, he was overwhelmed as he was busy paying for other children. The appellant sought the custody of the younger child and the Respondent to pay for those adult children in colleges. 7.The appellant was aggrieved with the findings and proffered an Appeal and the grounds;a.That the learned Trial Magistrate erred in law and fact by finding to apportion parental responsibilities equally as far as the children’s school fees and academic requirements, medical covers and monthly upkeep are concerned.b.That the learned Trial Magistrate erred in law and fact in failing to consider the Plaintiff’s/Respondents monthly income and only confined herself to what the Respondent/appellant earns per month.c.That the learned Trial Magistrate erred in law and fact by failing to consider that the issues reside at the appellant’s premises and therefore do not pay rent.d.That the learned Trial Magistrate erred in law and fact by exhibiting bias against the Appellant in her analysis of the evidence. 8.The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. Analysis and Determination: 9.The best interest of the children is a principle which is at the Centre of any proceedings affecting the children. Article 53(2) of the Constitution enacts that a child’s best interests are of paramount importance in every matter concerning the child. Additionally, section 4(3) of the Children’s Act provides that all judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any power conferred by this Act shall treat the interest of the children as the first and paramount consideration to the extent that this is consistent with adoption a course of action calculated to; .Safeguards and promote the rights and welfare of the child; Conserve and promote the welfare of the child, Secure for the child such guidance and correction as it is necessary for the welfare of the child and in the public interest. 10.Likewise, Children Act 2022 at Section 8 (1) provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration. 11.This court notes that the appellant settled on 7 grounds for determination. However, looking at the totality of the grounds, I shall collapse them into one issue for determination; whether or not parties have equal parental responsibility towards their children. 12.The Appellant appears to be challenging the court’s decision with respect to the maintenance of the Children. He submits that he is heavily overburdened. I note from the court proceedings, that both parents are professionals, and whereas the Respondent is an employee of Bungoma County Government, the appellant is a teacher at St Paul Secondary school. Additionally, the Respondent is a Masters Student while the Appellant is a PhD student. However, parties do not see each other, eye to eye. The appellant’s complaint is that the children have been whitewashed by the Respondent. They do not communicate with their father. Putting all these together, it is clear, the orders of maintenance are viewed from other lenses. 13.Equally, in this matter, only one, is a child in terms of the definition of a child while the rest of the children are adult dependants who are still in college. The court has discretion, in special circumstances, under section 35(1) of the Children Act to extend the parental responsibilities after a minor attains the age of majority. However, more importantly, courts in apportioning responsibilities, must bear in mind, that provision for Children in a setting like this, is a joint and equal responsibility. 14.Section 32 of the Children Act is very clear. It provides as follows. Equal parental responsibility (1) Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock. 15.Consequently, it is trite law that parental responsibility is an equal joint responsibility of the parents to a child and no parent shall be treated specially as having a superior right over the child than the other. In PKM Vs ANM (2020) eKLR. where Aroni J stated that; “In my view therefore, one need not go further to look at what parents need to do for a child and to what extent. In this instance the parties have joint responsibility towards their son and no one is superior to the other…” 16.In SKM Vs [2015] eKLR Hon Justice William Musyoka, said thus; “Maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the 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.” 17.In line with my analysis and extended reasoning of the catalogued precedents, I make a finding that this appeal succeeds. I set aside the orders made by the trial magistrate in the judgment delivered on 3rd April, 2025 and in their place this court now makes the following orders; -a.The Appellant (Father) is to provide for the school fees and school related expenses like uniform, books, school trips, school transport etc for the minors.b.The Respondent (Mother) to cater for the medical expenses and provide accommodation (shelter), food, house help costs and clothing for the minors. JUDGEMENT DELIVERED IN COURT VIRTUALLY IN THE PRESENCE OF THE PARTIES AND COURT ASSISTANT THIS 9TH JULY, 2026.HON. R.K. ONDIEKIJUDGE.