https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/663

**REPUBLIC OF KENYA** **IN THE CHILDREN’S COURT AT BUNGOMA** **CHILDREN CASE NO. E022 OF 2026** **DORCAS ATIENO……………………...…………………………PLAINTIFF/APPLICANT** **VERSUS** **ALBERT NYONGESA WANYAMA………………………...DEFENDANT/RESPONDENT** **RULING** 1. This ruling determines the Plaintiff/Applicant’s Application dated 08th May 2026, expressed to be brought under Article 45 and 53 of the Constitution, sections 4, 23,81,82,83,88,90,91 of the Children Act, Order 40 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, and all other enabling provisions of the law, seeking the following orders: 2. *Spent* 3. *Spent* 4. *Pending the hearing and determination of the suit, the Respondent be compelled to pay interim monthly maintenance towards the upkeep, school fees, medical care and general maintenance of the minor children, or such sum as this court deems fit* 5. *Costs of this Application be provided for* 6. The instant application was grounded on the grounds set out on the face of it and the Supporting Affidavit sworn by the Applicant on 08th May 2026 7. The Plaintiff/Applicant averred that she was lawfully married to the Defendant/Respondent until sometime in 2024 when she fled from her matrimonial home to the Gulf region. She added that their marriage was blessed with children (EW, SI, and AJ jointly referred to as the children) whom she continues to solely and fully provide for despite the Defendant/Respondent being a man of means employed by the Kenya Defence Forces (KDF). 8. She added that Defendant/Respondent’s conduct was a contravention of Article 53(1)(e) and Article 45 of the Constitution as well as section 23(2) of the Children Act, 2001; hence this suit. 9. The Defendant/Respondent opposed the instant Application through a Replying Affidavit sworn on 19th May 2026, where he denied the allegations of violence and physical harm made against her by the Plaintiff/Applicant. 10. He further deponed that he was taking care of all the children’s needs; thus, the instant Application ought to be dismissed with costs. He also urged this court not to disrupt the existing status regarding the children’s physical custody since such disruption would be detrimental to the minors’ welfare. 11. The parties herein also filed their respective Affidavits of Means. The Plaintiff/Applicant’s Affidavit of Means sworn on 10th August 2026 shows that her only source of income is her net monthly salary of Kshs. 27,669/=. 12. On his part, the Defendant/Respondent filed an Affidavit of Means sworn on 28th July 2026 setting out his monthly net income from his KDF salary as well as his monthly expenses and financial obligations. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings and the evidence on record. It is this court’s considered view that the issues for determination are: 2. *Whether the instant Application is fatally defective* 3. *Whether the Respondent should be compelled to pay interim monthly maintenance towards the minor’s upkeep, school fees, medical care and general maintenance* 4. *Whether the Respondent should have the children’s legal and physical custody in the interim* ***Whether the instant Application is fatally defective*** 1. The instant Application is grounded on the provisions of the repealed Children Act 2001. The Supreme Court in **Mungai v Housing Finance Company (K) Limited & 5 others (Civil Appeal (Application) 9 of 2015) [2017] KESC 47 (KLR)** stated as follows on the consequence of a party moving the court under repealed sections of the law: *“23.In the case of Hermanus Phillipus Steyn v. Giovanni Gnnechi-Ruscone, Supreme Court, Application No. 4 of 2012, this Court was categorical that a Court has to be moved under a specific provision of the law. The Court stated that it is trite law that a Court of law has to be moved under the correct provisions of the law. We reiterate that the only legal regime for the Supreme Court is the Constitution, the Supreme Court Act and the Supreme Court Rules, 2012 (as amended). Hence it is preposterous for the applicant to purport to bring his application under other statutory provisions that are not the Supreme Court Act. It is sadder that he has the audacity to even invoke provisions of repealed pieces of legislations. No court can be moved on the basis of a repealed law. What right if at all does a repealed law give? The answer is clear: none.”(Emphasis added)* 1. It is explicit from the authority above that generally speaking, an Application grounded on repealed provisions of the law cannot confer any right on a party. Such an Application is fatally defective. 2. However, this court notes that this is a children's matter. The prevailing law in this jurisdiction is that a court should consider the best interests of the child when making orders in any matter or case affecting a child. Striking out the instant Application for being fatally defective will militate against the best interests of the children herein since their basic needs will remain in limbo pending the filing of a proper Application by the Plaintiff/Applicant’s counsel. 3. This court also notes that the citing of the repealed law by the Plaintiff/Applicant did not prejudice the Defendant/Respondent in any way whatsoever since he understood the nature of the orders sought by the Plaintiff/Applicant and adequately responded to the said Application. 4. The court in **C K K v C M M [2016] KEHC 3904 (KLR),** when confronted with an Application grounded on the wrong sections of the law held thus: *“18. Be that as it may and guided by the principle in Article 159(2)(d) of the Constitution 2010 which enjoins the court to administer justice to all without undue regard to procedural technicalities and being minded that there is a child involved in this legal tussle, the court proceeds to consider the merits of the application.”* 1. Guided by the best interests of the minors herein as well as the holding in the CKK case (supra), this court finds that the instant Application is properly before this court for determination. ***Whether the Respondent should be compelled to pay interim monthly maintenance towards the children’s upkeep, school fees, medical care and general maintenance*** 1. The Plaintiff/Applicant prays that the Defendant/Respondent be compelled to pay interim monthly maintenance towards the children’s upkeep, school fees, medical care and general maintenance, or such sum as this court deems fit. 2. The Defendant/Respondent maintained that he is taking care of the minors’ medical care through his medical insurance cover. The Plaintiff/Applicant did not dispute the Defendant/Respondent’s averment on his provision of the children’s medical care through a supplementary/further affidavit. It thus follows that the minors’ medical needs are already being taken care of by the Defendant/Respondent. 3. On the children’s upkeep and general maintenance, the Plaintiff/Applicant did not plead or itemize the specific amount of money the children need for their upkeep and general maintenance. This court cannot pluck a figure out of the sky and order a party to pay such an arbitrary figure towards maintenance of children. 4. Be that as it may, it is not lost to this Court that the children herein need to be maintained through the provisions of food, clothing, and other child-related needs. This Court is therefore obligated to make an interim maintenance order. 5. The law in this jurisdiction is that parents have a joint and equal responsibility towards the maintenance of their children per section 110 of the Children Act. Section 113 of the Children Act empowers this court to order the person against whom a maintenance order is made to make a financial provision for the child through periodic or lump-sum payments. 6. Section 114 (2) of the Act, on the other hand, lists the factors a court ought to consider before making a maintenance order against a person. Those factors include 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 immediate future; the financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future; the financial needs of the child and the child’s current circumstances; the liability of any other person to maintain the child; and the liability of that person to maintain other children. 7. This court has duly considered the factors above alongside the best interests of the minors herein as well as the Affidavits of Means filed by the parties herein. 8. A reading of the Affidavits of Means on record shows that the parties’ sole source of income is their respective monthly salaries. Their respective net monthly salaries are almost equal. 9. The Plaintiff/Applicant has not stated how much she is willing and able to contribute towards maintaining the children. She appears to suggest that the Defendant/Respondent ought to fully maintain the children alone despite her earning a monthly salary that is almost equal to the Defendant/Respondent’s net monthly income. 10. In **AAO v BOO (Civil Appeal E077 of 2023) [2025] KEHC 6209 (KLR),** the court held thus on the parents’ duty to maintain their children: *“9…Be that as it may, the child must be provided for in equal measure by both parents. While the earning and financial capacity of the parents is a ground for consideration in matters of child maintenance, none of the parents should be loaded with the responsibility of the child’s needs more than the other. That is the tenet of Article 53(1)(e) of the Constitution and Section 8 of the Children’s Act Chapter 141 of the Laws of Kenya…I agree with Honourable Justice J.N. Onyiego in* ***MOA v HAO (2021) eKLR*** *where he held that;* *‘It will be too much to demand 100% maintenance from one parent while the other is playing the role of spectator yet claim to be a responsible parent. Children matters or needs should not be used to punish one parent at the comfort of another parent. Children should be viewed as a blessing to parents but not a curse. To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty bound to contribute towards a child’s welfare.’* *10.Based on the above, it is my holding that the respondent and the appellant had equal responsibilities to take care of the child and any apportionment should be based on equitable share. Equitable share of course does not mean a cent-to-cent equality but in a manner that the burden is not skewed against any of the parties considering the circumstances and needs of the child.” (Emphasis added)* 1. It is evident from the authority above that the Plaintiff/Applicant cannot purport to require the Defendant/Respondent to maintain the children alone, yet the parties herein are earning almost the same monthly income. 2. In the circumstances, this court orders the parties herein to equally contribute towards the children’s upkeep and general maintenance in the interim. 3. The Plaintiff/Applicant also prayed that this court orders the Defendant/Respondent to pay the children’s fees pending the hearing and determination of this suit. 4. The evidence placed before this court shows that the Defendant/Respondent was paying the children’s school fees in public schools (particulars withheld) before the Plaintiff/Applicant transferred the children to other schools, including a private school. 5. Notably, the Defendant/Respondent has offered to pay school fees and school-related expenses for the children in schools he can afford. The Plaintiff/Applicant has not given any justification for transferring the children from the schools the Defendant/Respondent used to pay their school fees and school-related expenses. 6. The choice of children’s schools ought to be through consultation and concurrence of the children’s parents based on their respective financial capacity. This court cannot force the Defendant/Respondent to pay the children’s school fees and school-related expenses in schools he did not participate in choosing (see **AAO v BOO (Civil Appeal E077 of 2023) [2025] KEHC 6209 (KLR)).** 7. However, the foregoing does not mean that the Plaintiff/Applicant should solely continue to cater for the children’s school fees and school-related expenses in the interim. The Defendant/Applicant must also support the children in their educational journey. 8. This court is of the considered view that given that the children’s current academic year is yet to conclude, it is in the children’s best interests that they remain in their current schools until the conclusion of the current academic year, with the parties herein equally catering for the children’s school fees and school-related expenses in the interim. 9. The parties will thereafter have a sit-down and choose a school or schools where the Defendant/Respondent can afford to meet the children’s educational needs. 10. In the event the parties herein fail to agree on the choice of the children’s schools after the conclusion of the current academic year, the Defendant/Respondent will be at liberty to pay the children’s school fees and school-related expenses equivalent to the amount of money he used to spend in the public schools the children were transferred from by the Plaintiff/Applicant with the Plaintiff/Applicant paying the balance, if any. ***Whether the Respondent should have the children’s legal and physical custody in the interim*** 1. The Defendant/Respondent has urged this court to grant him the children’s physical custody. Section 95 (2) and 103 (1) of the Act list the factors a court should consider before making a custody order. Those factors were restated in **MAK v RMAA & 4 Others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ),** where the Supreme Court of Kenya listed guidelines for determining custody matters, to wit:- *“Courts, therefore, while making a decision that will impact the child are mandated to consider all circumstances affecting the child. As such, we are of the view that the following guidelines are necessary and ought to be considered when balancing a child’s best interests and parental rights and responsibility:* *1.The existence of a PRA between the parties.* *2.The past performance of each parent* *3.Each parent’s presence including his or her ability to guide the child and provide for the child's overall well-being.* *4.The ascertainable wishes of a child who is capable of giving / expressing his /her opinion* *5. The financial status of each parent* *6. The individual needs of each child.* *7.The quality of the available home environment* *8. Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted.* *9.Need to ensure that children are not placed in alternative care unnecessarily.* *10.The mental health of the parents and* *11.The totality of the circumstances. ‘’(Emphasis added)* 1. This court has duly considered the factors above. It is given that none of the parties herein has a superior right over the other regarding the children’s physical custody. Either party can have the children’s physical custody unless there are militating factors against granting either of them the children’s physical custody. 2. EW is currently in the Defendant/Respondent’s physical custody. SI and AJ are in their maternal grandmother’s physical custody. 3. On 18th June 2026, the said children appeared before this court and expressed their wishes on where they wanted to stay in the interim. The children’s views prompted this court to grant the Defendant/Respondent EW’s physical custody while SI and AJ were placed in their maternal grandmother’s physical custody. 4. Generally speaking, unless the circumstances of the case demand otherwise, it is in the best interests of a child to stay with their parents. To this end, this court seeks refuge in section 12 of the Children Act that provides thus: *12 (1) Every child has the right to parental care and protection.* *(2) Except as is otherwise provided under this Act, every child has the right to live with his or her parents.* 1. The provisions of the law above are in sync with international and regional norms on children's rights. For instance, Article 7 of the 1989 UN Convention on the Rights of the Child states that a child shall have a right to live with and be cared for by his or her parents. Article 19 of the African Charter on the Rights and Welfare of the Child, on the other hand, states that every child is entitled to parental care and protection and shall, whenever possible, reside with his or her parents. 2. The above legal position was reiterated in **MJC v LAC & another [2020] KEHC 6921 (KLR),** where Achode J. (as she then was) rendered herself thus:- *“Further, Article 53 is clear with regard to where parental responsibility lies. There can be no basis for imposing parental responsibility on a person except in limited circumstances provided under the Children’s Act, where guardians are appointed and take up parental responsibility for the child. In the present case, the Respondents have no legal obligation to assume parental responsibility for the child while the child has a surviving parent who is legally bound and is ready and willing to take on parental responsibility….Children of tender years require a place where they will receive parental care something which cannot be measured monetarily or by tangible things….”(Emphasis added)* 1. In the English case of **Re G [2006] 545***,* Lord Nicholl was considering the best interests of the minor and this is the way he expressed himself thereon: *“In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interest in the short terms and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this fact. A child should not be removed from the primary care of his or her parents without compelling reason. Where such a reason exists the judge should spell this out explicitly”.* 1. Guided by the authorities above, it follows that a minor’s parent cannot and ought not be denied full custody, care and control of a minor unless “exceptional circumstances.” 2. This begs the question whether there exist exceptional circumstances to deny the Defendant/Respondent the children’s physical custody in the interim. 3. The evidence on record shows that the minors’ parents, given the nature of their jobs and their places of work, cannot have the minors’ physical custody in the interim. Whereas EW is in the Defendant/Respondent’s physical custody on paper, there is no doubt that he does not stay with the Defendant/Respondent at his place of work at Thika Barracks. EW is staying with his paternal relatives. 4. It is against this backdrop that this court finds and holds that the exceptional circumstances of this case coupled with the minors’ ascertainable wishes militate against interfering with the status quo on the children’s physical custody in the interim. 5. However, the parties herein are granted the children’s equal legal custody in the interim. **DETERMINATION** 1. In sum, this court makes the following orders: - 2. *The Plaintiff/Applicant and the Defendant/Respondent to equally contribute towards the children’s upkeep and general maintenance in the interim* 3. *The Plaintiff/Applicant and the Defendant/Respondent to equally cater for the children’s school fees and school-related expenses in the minors’ current schools until the conclusion of the current academic year* 4. *The Plaintiff/Applicant and the Defendant/Respondent to have a sit-down upon the conclusion of the current academic year and choose a school or schools for the minors where the Defendant/Respondent can afford the children’s educational needs.* 5. *In the event the parties herein fail to agree on the choice of the children’s schools as contemplated in (c ) above, the Defendant/Respondent will be at liberty to pay the children’s school fees and school-related expenses equivalent to the amount of money he used to spend in the public schools the children were transferred from by the Plaintiff/Applicant with the Plaintiff/Applicant paying the balance, if any.* 6. ***The status quo on the children’s physical/actual custody*** ***be maintained pending the hearing and the determination of this suit*** 7. ***The Plaintiff/Applicant and the Defendant/Respondent are granted legal custody of the children in the interim. This is to say that both parents have a right to participate and make inputs in the major decisions concerning the children, including but not limited to the educational, religious, and medical decisions*** 8. ***Each party to bear their own costs*** 9. Orders accordingly. **Read, signed, and delivered in open Court at Bungoma this 20th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Kakai for the Plaintiff/Applicant Mr. Masiga for the Defendant/Respondent C/A: Mr. Rioba