[2023] KEHC 24482 (KLR)

CKM v SCK (Civil Appeal 152 of 2022) [2023] KEHC 24482 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24482 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 152 of 2022

RN Nyakundi, J

October 31, 2023

Between

CKM

Appellant

and

SCK

Respondent

(Being an appeal from the judgment of Hon. E. Kigen, Senior Resident Magistrate delivered on 7/10/2022 in Eldoret Children’s Cause No. E098 of 2022)

Ruling

1. CKM the Appellant and SKM the Respondent were married in the year 2006. They were blessed with the following children; KAC, XFK, VBM and VKM. CKM the father of the said children filed a suit against SKM the mother of the children alleging that beginning the year 2020, the Respondent started showing him animosity. He alleged that the Respondent had chased him out of their matrimonial home, became quarrelsome and completely cut communication between him and the minors. He further alleged that Respondent herein had denied him access to the minors and had made it difficult for him to perform his parental duties.

2. In a judgment delivered on 7/10/2022, Senior Resident Magistrate Hon E Kigen made the following orders:i.That legal custody of the minors is hereby granted to both parents with the mother having actual physical care and control of the minors.ii.That the Plaintiff is granted access with prior arrangement with the Defendant which access is limited to school holidays only.iii.The Plaintiff to pay school fees and other educational needs for the children as per the fees structure.iv.That both parents will jointly cater for medical expenses when need arises.v.The Defendant herein shall provide for a house help, pay utility bills, provide clothing , supplement food and entertainment.vi.That the Plaintiff shall further pay an upkeep/maintenance of Kshs.30,000/= which amount shall be sent to the Defendant on or before the 10th of every succeeding month.vii.Each party shall bear its own costs.

3. Aggrieved by the said decision, the Appellant herein filed this appeal vide a Memorandum of appeal dated 19/10/2022, raising 10 grounds:1. That the Learned Trial Magistrate erred in law and in fact in that he gave undue weight to the Respondent's case and least weight to the Appellant's case.2. That the learned trial magistrate erred in law and in fact in granting the Appellant limited access of the minors.3. That the learned trial magistrate erred in law in granting the Appellant limited access to the minors during school holidays, without giving reasons4. That the Learned Trial Magistrate erred in law and in fact in failing to apportion equal parental responsibility of the minors between the parties herein.5. That the Learned Trial Magistrate erred both in law and fact in apportioning the Appellant the responsibility of providing monthly upkeep/maintenance of Kshs. 30,000/= of the minors over and above paying for all their school fees and other educational needs as per the fees structures.6. That the Learned Trial Magistrate erred in fact in failing to appreciate the fact that the minors are in very expensive schools, whose school fees are fully paid by the Appellant.7. That the Learned Trial Magistrate erred in law and in fact in burdening the Appellant with parental responsibility without consideration of his financial means to meet the apportioned responsibility.8. That the Learned Trial Magistrate erred in law and in fact in awarding monthly maintenance of Kshs.30,000/= to the Respondent while disregarding the fact that two of the minors are currently in boarding schools, and are fully maintained in school from payment of school fees and related expenses by the Appellant.9. That the Learned Trial Magistrate erred in law and in fact in awarding monthly maintenance of Kshs.30,000/= to the Respondent while disregarding the fact that the minors will be in custody of the Applicant during their school holidays, and will thus be maintained by him.10. That the Learned Trial Magistrate erred in law and in fact in apportioning unequal parental responsibilities of the minors between the Appellant and the Respondent.

4. The appeal was canvassed vide written submission. Counsel for the Appellant filed his submissions on 24/8/2023 while the Counsel for the Respondent filed her submissions on 4/8/2023. Counsel for the Appellant also filed Supplementary submissions on 1/9/2023.

The Appellant’s Submissions 5. Counsel for the Appellant submitted that it is trite law that parental responsibility is an equal joint responsibility of superior right over the child than the other. Counsel cited Section 24 of the Children Act and the case of PKM VS ANM.

6. With regard to limited access of the minors, Counsel submitted that the nature of work of the Appellant is not fixed and that he will be only available to be with the minors during school holidays. When on his work leave and therefore available, he will also like to give the minors the fatherly love they deserve, even if it means vising them in schools for those that are in boarding schools.

7. Counsel argued that it is unfair and unjust to limit his access to the minors when the trial court did not find any justifiable reason to limit custody. Counsel submitted that the learned trial Magistrate erred in limiting custody of the Appellant without any lawful justification. Counsel relied on the provisions Section 6 (1) of the Children Act.

8. Counsel contended that the Court did not find the Appellant to be a violent man as was alleged by the Respondent, and therefore there was no justification at all given for limiting his access to the minors.

9. With regard to Kshs.30,000/= ordered as maintenance, Counsel submitted that both the Appellant and the Respondent are in active employment. The Special child (XFK) who is autistic is in boarding school and is completely provided The first child K is also in boarding school and completely provided for during school days (which are the majority) by the Appellant.

10. The Respondent told the trial court that she earns Kshs.44,000/=every month. Which Counsel submitted that is enough to cater for the two young minors who are not in boarding school, save for school fees and other school related expenses shouldered by the Applicant.

11. Counsel argued that Kshs.30,000/= ordered against the Appellant is punitive and only meant to punish the Appellant for being a father and further that the same is not geared towards ensuring the best interest and welfare of the minors. Counsel maintained that the Appellant has provided the Court with a copy of his payslip which clearly shows what he is left with after all deductions which is not enough to be paying Kshs.30,000/= a month for maintenance after meeting school needs of all the four minors. Counsel submitted that as a matter of fact, the Appellant is left with very little for his own upkeep and cannot live a dignified life. Counsel submitted that while on the other hand the Respondent’s earnings are untouched as she does not pay rent. Counsel argued that the least the Appellant could do is to cater for monthly financial needs of the minors. Counsel urged the Court to be guided by the holding in the case of M.O.A Vs H.A.O [2021] eKLR on the issue financial contribution.

12. Counsel argued that the learned trial Magistrate erred in apportioning unequal and unfair parental responsibilities and thus ended up punishing the Appellant for being a father.

13. In the Supplementary submissions, Counsel for the Appellant submitted that trial Court made a custody order in favour of the Respondent with limited access of the Appellant limited only to school holidays of the children. Counsel relied on the provisions of Section 81 and 83 (1) of the Children’s Act. Counsel argued that, that order means that the Appellant shall not be able to check the children's performance in school, to attend parent's day and the children's academic day. That order in essence excludes the appellant from the educational life of his children.

14. Counsel argued that this order was issued disregarding that it is the Appellant who was paying the school fees and all the other school related expenses and yet it excludes him from interacting with the teachers and knowing the difficulties the children were facing in their academic pursuit. Counsel further argued that this order to that extent did not take into account the best interest of the child as is enshrined in Section 83(1)(J), it also offends Section 23(2)(v)which relates to education aspect from the guidance aspect. Counsel submitted that if the Appellant only paid school fees and incidentals thereof and failed to monitor the children performance in school that will be irresponsibility and neglect on his part.

15. Counsel submitted that this Court under section 86 of the Children Act has powers to make orders in relation to custody as it thinks fit. Counsel urged that the order made by the trial Court restricting the appellant access to only during school holiday be set aside and be substituted with an order of access without restrictions that is whether on school days and on school holidays. That order shall not be unreasonable given that the respondent has the legal custody of the children, the appellant is only seeking access and not joint custody.

16. With regard to maintenance, Counsel reiterated that trial Court made an order of Kshs.30,000/-monthly maintenance in favour of the Respondent as against the Appellant. Counsel submitted that, that order is unjustified and goes against the principle of shared responsibility.

17. Counsel submitted that Section 23(2) (a) lists the duties to maintain the child of these responsibilities, the Appellant is providing education, shelter, medical and clothing whenever necessary. Counsel maintained that of the 5 duties the Appellant is providing 4 of them. Counsel contended that the Honourable Court on top of that made an order that the appellant provides Kshs.30,000/- which in our estimation is meant for diet. This order then negates the principle of shared responsibility.

18. Counsel also cited Section 24(1) of the Children Act and argued that based on the said section the trial Magistrate’s order introduces superiority on the part of the Appellant to shoulder all the 5 parental responsibility duties. Counsel submitted that the trial Court made this order without regarding the evidence before it that two of the children were in boarding school and would only being taken care of during the school holidays while in the custody of the Appellant. Counsel further argued that the order of Kshs.30,000/- per month was made without taking into account that the Appellant was receiving salary of Kshs.118,000/-per month which was subject to statutory and other deduction from which the school fees was to be paid and the other responsibilities as above.

19. In the end, Counsel submitted that the Respondent was only feeding 2 children of the 4 children and that was only during school days. Counsel added that Respondent earns Kshs.40,000/-per month, the responsibility to feed 2 children during school days should not be that difficult and giving her Kshs.30,000/- for what she is supposed to do will be contrary to the law and to that extent the honourable trial court, we submit erred in making such an order. The order of Kshs.30,000/- should be set aside

The Respondent’s Submissions 20. With regard to the issue of Kshs.30,000/= ordered as monthly maintenance being exorbitant and or unreasonable, Counsel for the Respondent submitted that in the instant case there is no dispute that the 2nd minor is autistic hence a child of special needs a fact that is confirmed by the Appellant. Counsel further submitted that the Respondent in her evidence confirms the special nature of he 2nd minor by stating that he takes special milk and a supplemented diet.

21. Counsel argued that from the Respondent’s evidence it is clear that the 1st minor indeed requires special treatment which cannot be met by the ordinary diet offered in boarding school. Counsel added that supplements are not only very expensive but must be provided on a private arrangement. Counsel further argued that allegations by the Appellant to the effect that the subject minor's diet is catered for at school through the payment of usual school fees are therefore farfetched.

22. Counsel thus submitted that the Kshs.30,000/- ordered by the trial Court as monthly upkeep is indeed reasonable to meet the needs of the subject minors. Counsel added that the Appellant confirms at page 13 (line 12) of the record that he takes home a net salary of Kshs.124,000/= exclusive of other allowances. Counsel relied on the provisions of Section 90, 93, 94(1) and 98 of the repealed Children’s Act. Counsel urged the Court to be guided by the case of G O & 2 others (Suing thru' their mother and next friend) E M Mv M O O [2016] eKLR. Counsel maintained that the upkeep amount ordered by the trial court is not only legally supported but reasonable.

23. With regard to the access orders being punitive to the Appellant, Counsel submitted that it is worth noting that the parties herein have disagreed violently in the vicinity of the children. This is confirmed by the Appellant himself in cross-examination

24. Counsel submitted that the Respondent on her part avers that the Appellant is a very violent person having assaulted her severally and he even once pointed a gun at her with the intention of wanting to kill both her and the 4th minor. Counsel argued that this is what informs her fear in having the Appellant access the children. Counsel argued that in the circumstances, there is need to allow the children time to bond with the Appellant, having witnessed him beat up their mother. Counsel submitted that minors need time to trust him again and added that the process should be gradual.

25. Counsel also submitted that nature of the Appellant's work also renders his access difficult. Counsel further submitted that the Appellant confirms that he may be called any time to attend to work related duties. According to Counsel it will therefore not serve the best interest of the children who may still be traumatized to be forced into the custody of the Appellant as insinuated or at all.

Analysis and Determination 26. I would like to open up this analysis with a particular creed in Section 23 of the children’s Act expressed in a magnificent manner articulating parenthood an inspiring paragon of parenting virtues defined as responsibilities. It defines parental responsibility as all the duties, right, powers, responsibilities and authority which by law a parent has in relation to the child and in particular the following:Dutiesi.Duty to maintain the child and in particular to provide adequate diet, shelter, clothing, medical care including immunization, education and guidance.ii.Duty to protect the child from neglect, discrimination and abuse,Rightsiii.Right to give parental guidance in religious, moral, social culture and other values,iv.Right to determine the name of the childv.Right to appoint a guardian in respect of the childvi.Right to receive, recover, administer and otherwise deal with the property of the child in the best interests of the child.vii.Right to restrict the emigration of the child from Kenya,viii.Right to arrange for the burial and cremation of the child upon his death.

27. Interestingly much of the discussion of this dispute be it at the trial court or on appeal revolves around this framework of rights. For the central role of homemaking is a partnership.

28. This is a first appeal. The duty of a first appellate Court was succinctly stated by Wendoh J inJWN 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.

29. From onset I must mention that our Constitution, Statutory law and International Instruments ratified by Kenya are clear in making any decisions concerning children, the paramount consideration must, always, be the best interests of the child.

30. The Constitution of Kenya, 2010 in Article 53(2) provides as follows:A child’s best interests are of paramount importance in every matter concerning the child.”

31. In FSL v FNK, Civil Appeal No E060 of 2021 [2022] eKLR Thande, J observed:12. In the present matter which relates to a child of the parties, the interests of the child supersede those of the parties and must at all times be upheld. In this regard, the court is guided by the provisions of the Constitution of Kenya, 2010 and of the Children Act which require the court to give paramount importance to the best interests of the child. Article 53(2) of the Constitutionprovides:“A child’s best interests are of paramount importance in every matter concerning the child.

32. The Children Act on the other hand provides at section 4(3) 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 a primary consideration.”

33. I have considered the record of appeal, grounds of appeal and written submissions by both parties. There is no dispute that both the Appellant and the Respondent are the biological parents to the minors of the subject of these proceedings. It also not in dispute that both the Appellant and the Respondent are gainfully employed.

34. From the pleadings it is also clear that the Appellant currently caters for the school expenses for the minors and also pays the Respondent a monthly maintenance sum of Kshs.30,000/= while the Respondent provides for a house help, pays utility bills, provides clothing, supplements food and entertainment.

35. The Appellant’s main bone of contention in the instant appeal is the limited access granted to him by the trial Court and the requirement for him to pay the Respondent Kshs.30,000/= as monthly upkeep.

36. From my reading of the judgment of the trial Court it is evident that both the Appellant and the Respondent were granted custody of the minors with the Respondent having actual physical care and control of the minors. Thus, for clarity purposes it is clear that there is not issue as to the legal custody of the minor herein, the trial Court having already granted custody to both the Appellant and the Respondent.

37. The trial Court went further ahead to grant the Appellant access with prior arrangement with the Respondent which access is limited to school holidays only. The Appellant is clearly aggrieved by the requirement that his access is only limited access to school holidays alone. The Appellant from the Court’s understanding wants to be granted unlimited access to the minors which the Respondent is opposed to. The Respondents argued that the Appellant is a violent man and that they have disagreed violently in the vicinity of the children. According to the Respondent, the minors herein need time to bond with Appellant having had witnessed him beat her up. The Respondent further contends that the Appellant’s work also renders his access difficult as he may be called time to time to attend work related duties.

38. The Respondent primary concern when it comes to the issue of Appellant’s right to access the children is premised on the allegations of violence between her and the Appellant herein which issue the trial Court made no effort to address in its judgment. Although the Respondent has alleged violence on the part of the Appellant, she has not substantiated the said allegations to warrant this Court’s intervention. The Respondent has not in anyway shown that the Appellant herein has caused harm to the minors herein so as to warrant the limited access granted to him by the trial Court.

39. To the Court’s mind the said order was without any basis. Nothing whatsoever was tendered to show that the Appellant is an unsuitable parent to the minors to limit his access to them only during school holidays and with prior arrangement with the Respondent. In the present case, there are no extraneous circumstances touching on the dignity and security of the children herein to require that his access be supervised or be conducted in the presence of a third party.

40. Article 19 of the African Charter on the Rights and Welfare of the Child stipulates that:every child is entitled to parental care and protection and shall wherever possible reside with his or her parents.”

41. Ultimately, therefore, a child needs both of their parents which is their right. In the case, the best interests of the children herein are not served in any way by limiting the Appellant’s access to them. Being of tender age, considering the Appellant’s nature of work and in absence of any evidence depicting Appellant as the unsuitable parent, this Court finds it prudent that the Appellant’s access to the minors should therefore be unlimited. Having both a mother and father involved in a child’s life without a doubt can provide significant social, psychological, and health benefits.

42. The Court does not therefore agree with the Respondent’s contention that the Appellant’s work renders his access difficult. The Court believes the Appellant should be able to access the children whenever his work placement calendar allows. His work cannot therefore be a reason to limit his access. With that said this Court thus finds no reason to restrict the Appellant’s access to the children only to school holidays.

43. On the issue of Kshs.30,000/= being paid as maintenance to the Respondent. From the record it is evident that both the Appellant and the Respondent are gainfully employed and such are financially capable to taking care of educational, housing, nutritional, upkeep, entertainment and medical needs of the four children. In saying so it is important at this juncture to mention that custody cases are not duels of who between the two parents is more financially muscled: It is, instead, a delicate exercise aimed at determining, in context, the best interests of the children. Child custody, maintenance, and who carries a bigger share of the monetary contribution as between either spouses is the politics of now and politics of gender. Indeed, such a stipulation assumes that there is an upper limit to child support payments which is basically a paradox for that was the case the child’s needs would simply expand according to his or her parent’s financial ability. Indeed, may be it is time the scheme on child support look at the conception framework of equality and comparative fairness. For the sake of simplicity of this appeal assumed there was need for reinforcement of financial support from the appellant such concerns need to be accompanied with cogent evidence associated with such claims. Whether or not there should be a difference between the scope desirable and the continuing benefit of the child are matters to be seen within the context of Section 23 of the Children’s Act. Father and mother as joint parents or guardians of the child or minor enjoy equal powers, rights, and duties in regard to the minor child on an equal custody and shared parenting. None comes to the table of custody and maintenance with superior rights. The law in Kenya in a nutshell is governed by the doctrine of the best interest of the child and parents are expected to be actively and consistently involved in consonant with the provision of Section 23 of the Act commensurate with their abilities and interest. If the parents of the minor child or children live apart during the dissolution proceedings Section 23 of the Act does not remain suspended pending the decree nisi or absolute. The parents must support and maintain their children within the statutory framework of Section 23. Every parent must have a concern for self and fill heavy responsibility to discover his or her mission in life and after that commit both morally and legally to pass a heritage to his or her children. It is only that way that one can trust that good shall be for his or her offspring. It is the strength of love that he who brings forth children to this earth shall find it to be a command by God and Society to the good responsible parent for the growth of that generation. If a Kenyan is really mindful of what happens to this nation he will be concerned on the human rights of every child in their household and within society as a whole. It is unswerving devotion to the timeless principles on the doctrine of the best interests of the children.

44. Section 32 of the Children’s Act, 2022 provides for equal parental responsibility;31. Equal parental responsibility.(1)In this Act, "parental responsibility" means 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.(2)The duties referred to in subsection (1) 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; and(vii)general guidance, social conduct and moral values;

45. Section 2 of the Children’s Act, 2022 defines a maintenance order as;maintenance order" means an order issued by a court directing a specified person to make such periodic or lump sum payment for the maintenance of the child on such terms as the Court may consider appropriate;

46. Section 110 of the Children’s Act 2022 provides for the joint maintenance of the children;110. Joint maintenance of children.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;

47. In this instant case, although parties did not file any Affidavit of means from their testimonies it is evident that they are gainfully employed with the Appellant earning Kshs.124,000/= whereas the Respondent earns Kshs.44,000/=. The Appellant faults the trial Magistrate for ordering a monthly upkeep for Kshs.30,000/= which he maintains does against the principles equal parental responsibility as the Respondent’s salary remains untouched as does not pay rent and such she should be able to cater for the monthly financial needs of the minors. The Respondent on the other hand maintains that the said sum is geared towards providing for the special diet requirements for (2) of the minors herein as they are children with special needs as such requirement a supplemented diet.

48. In this case is it also not in disputed that two of the minors are children with special needs and such require special treatment. Be as it may from the wording of the judgment of the trial Court, it is evident that the Respondent was the one charged with the responsibility of supplementing food and as such cannot require the Appellant to pay additional funds towards the special diet of the (2) minors herein.

49. In this case there is no doubt that the learned Magistrate placed a heavier responsibility on the Appellant. From the exhibits on record it also clear that the Appellant is currently shouldering a hefty fee structure for the minors herein. To require him to pay an additional Kshs.30,000/= as maintenance is clearly punitive and whose sole aim is to financially cripple and ruin him. At this juncture it is worth mentioning that maintenance orders are not meant to render any of the parties destitute but to only serve the best interests of a child.

50. InGeoffrey Onsare Onchiri v Leah Makori, High Court Children Appeal Number 5 of 2017 this Court stated;It is manifestly clear that the apportionment of responsibility was not pegged on any concrete evidence of the respective earnings of the parents.

51. In the circumstances like the one before this court, a court is enjoined to make a thorough inquiry as to the actual earnings of the parties and to ascertain with the most achievable precision the actual needs of the children.

52. That way the court would be in a position to make an informed decision as to the apportionment of responsibilities. Orders of maintenance should not lie whimsically or capriciously. They must be based on proved income and pegged on ascertained needs which the parents then share accordingly.”

53. In the end, having evaluated the evidence and the law, I am satisfied that there are sufficient grounds to interfere with the orders of the learned trial Magistrate. One of the predominant basis of exercising discretion in favour of the Appellant is Equal Parenting Addresses Social Justice Imperatives Regarding Parental authority, autonomy, Equality, Rights and Responsibilities. The equality of parents as primary caregivers and is equally capable in providing for their children enhances their emotional and psychological development than in a case of preferring one parent over the other of for choosing between the two good enough parentage in a custody contest. In the event of divorce or judicial separation empirical evidence shows equal parenting approach enables the children to adjust significantly better than in high conflict situations. The Well-being of children should take precedence over judicial biases and preferences, professional self-interest, gender politics, the desire of a parent to remove the other from the child’s life, unless the other parent is found to be a danger to the survival rights of the child. In my view equal parenting arrangements provide durable solutions over the long-term for the holistic growth of a child or children and significantly offer more and better quality parental care for children than Ad-hoc sole custody arrangements. Whether in times of divorce or judicial separation children need both parents as well parents need their children in their lives and their is no substitute whatever until death puts them asunder. I do not think today parents are manifested with grief or acutely aware of the consequences of their absence in their children’s lives without any excuse or justification or existence of compelling and substantial circumstances. The salient features of shame, posttraumatic stress after separation or divorce of their parents, stigma, self-blame and helplessness linked directly to their children due to routine conflicts, court cases about their custody and maintenance from the birth care givers. For those reasons in a sense must succeed and the following orders do abide:i.It is presumed by this court that the trial court has neither interests, time nor ability to fashion a financial order which will affirmatively enhance liability against the appellant without probative, credible and cogent evidence on that issue. It is for this reason the order on 30,000 payments be and is hereby set aside.ii.That the legal custody of the children is hereby granted to both parents with the mother having actual physical care and control of the minors.iii.That the Appellant hereby granted unlimited access to the minors.iv.The Appellant shall pay school fees and other educational needs for the children as per the fees structure.v.That both parents will jointly take out an insurance policy to cater for the medical expenses for the children herein.vi.That the Respondent herein shall provide for a house help, pay utility bills, provide clothing, supplement food and entertainment for the children herein.vii.Each party shall bear its own costs.It is so ordered,

DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF OCTOBER, 2023. In the presence ofCherop for the AppellantIsiaho for the Respondent……………………………………R.NYAKUNDIJUDGE