[2022] KEHC 733 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL APPEAL NO. 22 OF 2019

AWM ……………………APPELLANT

VERSUS

JWW …….………….RESPONDENT

(Being an appeal from the judgment and decree of Hon. R. Kefa, SRM, in Nyeri CMC Children case No.45 of 2019 delivered on 1/3/2019)

JUDGMENT

1. The appellant is the estranged wife of the respondent. Both of them are the parents of three minor children. The appellant is the one who stays with the children. Both of the parents are teachers with the Teachers Service Commission. The appellant filed a children maintenance matter at the lower court seeking money for the respondent`s contribution for the upkeep of the children. The appellant`s tabulation of the monthly upkeep was Ksh.75,000/-. She was willing to meet half of the monthly expense and claimed monthly contribution of Ksh.32,500/- from the respondent. The trial court in its determination assessed the monthly upkeep at Ksh.12,000/- and ordered that the respondent pays Ksh.6000/- per month with the appellant contributing the other Ksh6000/-. The court made the following orders:

(i) The Plaintiff is granted actual, legal and physical custody of the minors.

(ii) The defendant is granted access/visitation rights as may be agreed by both parties.

(iii) Both parties shall share medical expenses equally

(iv) Both parties shall contribute Kshs.12,000 for food and clothing per month taking into consideration that two of the minors are in boarding school. To this end the Defendant shall pay Kshs.6,000 monthly which amount to be paid through Mpesa or the same to be deposited in the bank account of the guardian which should be provided to the Defendant.

(v) The defendant shall cater fully for school fees and accessories

(vi) The plaintiff to cater for shelter and utility bills.

(vii) Each party to cater for their own costs.

2. The appellant was aggrieved by the order and filed this appeal. The grounds of appeal are that:

(i) The learned trial magistrate erred in law and in fact in failing to consider the evidence on record and the best interest of the minors.

(ii) The learned trial magistrate failed to consider the provisions of the law as well as the prayers sought thereby ending up with a judgment that does not address the best interest of the minors.

(iii) The learne3d trial magistrate erred in both law and in fact while awarding kshs.12,000/= per month to be shared by both minors during school holidays and midterms for the three minors and that the said amount of kshs.12,000 is insufficient.

(iv) The leaned trial magistrate erred in law in failing to give timelines on payment of school fees and school accessories thereby exposing the minors to mercy of the respondent which is not in their best interests.

3. The appeal was canvassed by way of written submissions. The appellant submitted that the assessment by the court of the amount of money requirement for monthly upkeep at Ksh.12,000/= was too little.That the sum of Ksh.6,000/= that the respondent was ordered to pay is insufficient to take care of the needs of teenage minors. That the appellant had demonstrated in her evidence before the lower court that the respondent was financially able of paying the claimed sum of Ksh.32,500/=.That in making the award the trial court failed to consider the best interests of the children.

4. The appellant further faulted the trial court for failing to give timelines for the payment of the school fees as the respondent has not been paying the school fees in time thereby causing the minors to be sent home for non-payment.

5. In his submissions the respondent raised new issues which were not canvassed during the hearing at the lower court. The court will restrict itself to the issues that were brought up in the trial. The respondent all the same urged the court to allow him to pay school fees and school related expenses.

6. The evidence adduced at the lower court in February 2019 was that the children were age 16, 12 and 10 respectively. They were in form 4, class 7 and class 4 respectively. The first and the second born were in boarding school while the third born was a day scholar. That the respondent had moved out of the matrimonial home and abdicated his parental responsibility. The appellant contended that the respondent was financially capable of paying his contribution as he earns a salary with TSC, runs a water bottling firm and owns a lorry for transport.

7. The first born is now reported to have joined college.

8. I have perused the lower court`s file and I have not seen any statement of defence by the respondent. The respondent did however testify in court and stated that he left the matrimonial home in 2013 but continued to buy food and to pay the utility bills for the family until 2018 after the appellant threw away some food that he had bought. That he has all through been paying school fees for the children. That in 2018 he and the appellant went to the children`s office where parental duties were shared. He was given the responsibility of paying school fees and meeting medical expenses. He gave his insurance card to the appellant to take care of the medical bills. He committed to giving each child Ksh.5,000/= for clothing. That he was willing to abide by those terms. That the appellant should pay the house rent as she earns house allowance.

9. The respondent further said that the water bottling business is a partnership between him and other people. That he is servicing a loan for the lorry. That he has procured a loan to build a house. That he earns a net salary of Ksh.20,000/=. He produced a copy of his pay-slip, Dexh3, to prove so.

10. The parties recorded a consent in court on the 4th February 2019 to the effect that the respondent was to pay school fees and other attendant accessories and that medical costs were to be shared equally. What therefore remained to be decided by the court was the monthly upkeep.

11. Analysis and Determination –

This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and draw its own conclusions. This principle was well articulated by the Court of Appeal in Selle & Another vs Associated Motor Boat Company Ltd & Others[1968] 1EA 123 that:

“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Sholan, (1955), 22 E.A.C.A. 270).”

12. It was also held in Mwangi vs Wambugu (1984) KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

13. Dealing with the same point, the Court of Appeal in Kiruga vsKiruga &Another (1988) KLR 348,observed that:-

“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

14. The guiding principles when considering matters concerning children’s welfare are found in the Constitution that requires that the best interests of the child be of paramount importance. Article 53(2) provides:

“A child’s best interests are of paramount importance in any matter concerning the child.”

15. The same principles are echoed in Section 4(2) and 3(b) of the Children’s Act that provides that:

(2) 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 a primary consideration.

(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration… to the extent that this is consistent with adopting a course of action calculated to—

(a) safeguard and promote the rights and welfare of the child;

(b) conserve and promote the welfare of the child;

(c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

16. The appellant in her claim had tabulated the monthly upkeep as follows:

House rent ….……………………Ksh.10,000/=

House help .………........................Ksh.10,000/=

Food ……………………………...Ksh.35,000/=

Utility bills ……………………….Ksh.10,000/=

Entertainment …………………..Ksh.5,000/=

Miscellaneous ….………………..Ksh.5,000/=

Total...............................................Ksh.75,000/=

17. The trial court in assessing the monthly expense at Ksh.12,000/- did not state how it arrived at that figure. The appellant in her testimony in court however stated that she normally engages a house help on part time basis at Ksh.400/- per day. That she pays Ksh.1,500/- for water and Ksh.500/- for electricity in a month. It was not in dispute that two of the minors were in boarding school. These facts would mean that the monthly expense was considerably lower than what was being claimed, safe during the school holidays.

18. The parameters which guide the court in making an order for financial provision for maintenance of children is provided by Section 94(1) of the Children Act. These considerations include,inter alia:

(a) The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future;

(b) the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;

(c) the financial needs of the child and the child’s current circumstances;

(d) …

19. The trial Court was therefore obligated to take into account the income or earning capacity, property and financial resources of the parties. The trial Court was also to consider the parties’ financial needs, obligations, or responsibilities. As regards the children, the Court was required to bear in mind their financial needs and circumstances.

20. Parental responsibility is a shared responsibility between parents. The appellant produced his payslip to show his monthly earnings and his financial commitments. He admitted that he owned a lorry for transport business and runs a water bottling plant. There was no evidence on how much he was earning from the businesses.

21. The appellant did not produce her pay slip to show how much she was earning in a month. She was however willing to meet half of the monthly expenses.

The respondent`s pay slip had a net pay of Ksh.20,000/-. It is from that net pay that he was required to pay school fees and other school related expenses for the 3 children. I have perused the attached school fees structures. It was not possible to tell the total amount of school fees the respondent would pay in a term for the three children as there was no comprehensive schedule provided. It is however evident that the total for one term was more than Ksh.50,000/-. This does not include the other school related expenses such as books. The net pay for the respondent in the three months that comprise a term would be Ksh.60,000/-. In those three months of the term the appellant would pay total rent of Ksh.30,000/- plus other household expenses. So, who between them would spend more in a term than the other?

22. Though there was evidence that the respondent runs a water bottling plant and operates a transport lorry, there was no evidence how much money he makes from the businesses. The court can only go by the evidence that was adduced before the court that his net pay was Ksh.20,000/-.Would it then be fair to order the respondent to pay monthly maintenance of anything more than what was ordered by the trial court when his pay-slip is so constrained?

23. Families have to learn to live within their means as maintenance orders are not supposed to be punitive to any party.The court cannot order a parent to pay what he cannot afford. In S.K.W v M.W.I(2015) eKLR Musyoka J. held 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.

24. From my review of the evidence, I cannot say that the order to pay monthly maintenance of Ksh.6,000/- was erroneous. The said sum may not be enough to maintain the children in the manner that the appellant would want but, in my view, it would be punitive to order the respondent to pay anything more that.

25. On the issue of timelines to pay school fees, it was not raised during the hearing at the lower court. It is a few incidents that was cited when one of the children were sent home for lateness to pay school fees. It was not demonstrated that the respondent was a consistent defaulter. It is not necessary to impose timelines.

26. Considering the circumstances of this case, I find that the appeal lacks merit and is thereby dismissed.

Delivered, dated and signed at Nyeri this day of 17th March 2022.

J. N. NJAGI

JUDGE