https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9775

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO. E128 OF 2024** CHARLES NYARANG’O NYAMWAMU..................................... APPELLANT VERSUS ELIZABETH BITUTU ONKUNDI …................................ RESPONDENT ***(Being an appeal from the judgment and decree of the Honourable C. C. Rono, Resident Magistrate, delivered on 18th July, 2024).*** **JUDGMENT** The appellant was the defendant in Kisii Chief Magistrate’s Court Children’s Case No. E 105 of 2023. The plaintiff in the case, initiated vide a plaint dated 20th December, 2023 was the respondent, Elizabeth Bitutu Nyamwamu, suing as the mother and next of kin of a minor namely G.B.N. Before the trial court, the respondent was seeking orders to compel the respondent to provide for upkeep for the minor including provision for education, shelter and medication. The respondent describes the appellant in the pleadings as the biological father of the minor born during the subsistence of a marriage between the parties. It is averred that the appellant is a person working for gain as a teacher at Mawego Technical Institute. In a statement of defence dated 29th January, 2024, the defendant admitted being the father of the minor but denied the allegation that he was ever married to the respondent. The record shows that the parties were referred to mediation in an attempt to have their dispute amicably resolved. The mediation effort bore fruits when the parties reached a consent dated 8th April, 2024 which was adopted as an order of the court on 14th May, 2024. In the recorded consent, the respondent agreed to shoulder the responsibility of providing shelter and clothing to the minor. The appellant, on the other hand, agreed to meet the costs of both education and health for the minor. The appellant was granted unlimited access to the subject. What remained for determination by the trial court was the issue of who was to provide for the nutritional needs of the subject. The trial court asked the parties to file their respective affidavits of means. The record shows that the respondent filed an affidavit of means dated 18th June, 2024 in which she annexed her pay slip for the month of May, 2024 which shows that she earned a gross salary of ksh. 53, 184.00 and a net salary of Ksh. 29,455.10 during the material time. The judgment delivered by the trial court alludes to the fact that the appellant equally filed an affidavit of means, albeit, without attaching his pay slip and a break down of his expenses. Considering the rival affidavits of means, the trial court determined that the appellant provides ksh. 10,000.00 Monthly to cater for the nutritional needs of the subject. It is this final determination that has prompted the appellant to prefer this appeal against the judgment and decree of the subordinate court. The grounds in support of the appeal are as summarized hereunder; 1. That the trial magistrate erred in law and fact by failing to consider the mediation settlement and the appellant’s parental responsibilities towards the minor, 2. That the learned trial magistrate erred in law and fact by failing to assign the respondent some responsibilities towards the minor and by ordering the appellant to provide Ksh. 10,000/= monthly for food yet the minor stays under the custody of the respondent, and 3. That the learned trial magistrate erred in law and fact by failing to appreciate that the minor eats in school, catered for by the appellant, and that the appellant has other children whose upkeep he is catering for and that both the appellant and the respondent have joint parental responsibility towards the minor. The parties agreed to address the appeal by way of written submissions with the appellant filing submissions dated 12th February, 2026 and the respondent filing submissions dated 5th March, 2026. The appellant submits that he pays school fees, medical expenses and clothes the minor pursuant to a mediated settlement between the parties. The appellant asserts that he has been burdened with the responsibility of providing food for the minor who stays with the respondent yet the money he pays to the school where the minor is a learner caters for lunches. The appellant laments that he and the respondent are professional teachers and the respondent should shoulder her fair share of parental responsibility. The appellant submits that by being ordered to pay ksh. 10,000/= monthly, he has been discriminated by the trial court. The appellant sums up by saying that he earns a net salary of less than Ksh. 20,000/=. The respondent submits that the trial court considered the mediated settlement, which resulted in her providing shelter and clothing for the minor while the appellant meets educational and medical expenses. The respondent submits that she meets her parental responsibilities contrary to the appellant’s submissions to the contrary. The respondent denies assertions that the appellant buys clothes for the minor. The respondent has enumerated in her submissions the payments she incurs in rent, wages for a nanny, expenses incurred in clothing and full time care for the minor. The respondent sums up by saying the monthly provision for food is fair and that the same can only be enhanced but not interfered with in the manner suggested by the appellant. The respondent is therefore urging this court not to disturb the findings of the trial court. The only issue for determination by this is court is ***whether the trial court was unfair to the appellant when it ordered the appellant to meet cost of food for the minor assessed at Ksh. 10,000/= per month*** besides educational and medical expenses that he is providing pursuant to a mediated settlement. It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of ***Selle & Another v Associated Motor Boat Co. Ltd*** (1968) EA 123, it was held, and I quote; ***“Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.”*** Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. The above position was reiterated in the case of ***Kemfro Africa Ltd. t/a Meru*** ***Express Services v Lubia & Another*** (1982-88) 1 KLR 727 where it was held; ***“The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.”*** The above is equally applicable to assessment of what each parent ought to contribute in a case where parties are seeking custody and provision for maintenance of children under the Children’s Act. Article 53(2) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. A look at the record shows that the trial court appreciated the provisions of the above mentioned constitutional principle. When the court called for the affidavits of means from the parties, the expectation was that each party was going to make bonafide disclosures of his/her income and expenses. The record shows that the respondent annexed her current pay slip and enumerated her expenses including payments for rent and wages for a house help. Even though this court was unable to find the affidavit of means filed by the appellant in both the lower court record and the record of appeal, the trial court has captured its contents in the body of the impugned judgment. The appellant is said to have dwelt at length on the income of the respondent while failing to disclose his. He is also shown to have failed to annex a copy of his pay slip. It is apparent that he did not want the court to see his income and expenditures. The trial court was left with no option but to assess what he was to provide to cater for his child without the requisite information that would have guided the court. Each party is bound by his/her pleadings; the appellant lacks the moral authority to challenge the assessment done by the trial court in the absence of information that he was asked to provide but which he decided to withhold. His assertion that he earns less than 20,000/= monthly is bot supported by any evidence. An evaluation of the evidence on record shows that the trial court appreciated the entire evidence, the submissions of the parties and the applicable law in determining contribution that each parent was to make for the upkeep of their child. None of the grounds advanced by the appellants succeeds in persuading this court to interfere with the findings of the trial court. I find no merit in the entire appeal. For the above reasons I do dismiss the appeal by the appellant with costs to the respondent. ***IT IS HEREBY ORDERED.*** **Judgment read, dated, signed and delivered virtually this 11th day of June 2026** **HON. RICHARD K. KOECH** **JUDGE** **In the presence of:** * Mr. Okemwa appearing virtually for the Appellant * Elizabeth Bitutu Onkundi, Respondent, appearing virtually acting in person * Mercy Miyare Court Assistant Right of appeal within 30 days