https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11150

DKK v JJK (Civil Appeal E005 of 2026) [2026] KEHC 11150 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11150 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E005 of 2026 C Akaigwa, J July 17, 2026 Between DKK Appellant and JJK Respondent Judgment 1.This appeal arises from the Judgment and Orders of the Learned Trial Magistrate delivered on 14th August,2023 in Children's Case No. E017 of 2022. 2.The Appellant, being dissatisfied with the decision of the trial court, filed this appeal challenging the maintenance orders issued against him. The Appellant contends that the Learned Magistrate erred in law and fact by:i.Ordering the Appellant to pay school fees and other educational expenses for the minors and additionally pay Kshs. 34,600/= monthly as upkeep and also equally share in their upkeep and maintenance responsibilities;ii.Failing to provide reasons and justification for arriving at the monthly maintenance figure of kshs 34,600;iii.Disregarding the Appellant's other financial obligations including provision of a matrimonial home, medical expenses, clothing and food for the minors;iv.Failing to consider the Appellant’s income of kshs 130,000/= per month vis-a vis the duty of maintainace imposed on him;v.Failing to consider the Appellant’s other financial obligations which directly influence the extent to which he can manatin the minors;vi.Failing to consider the Respondent's income and corresponding parental responsibility;vii.Issuing vague and unclear orders on access and visitation. Analysis and DeterminationAs a first appellate court, this Court is obligated to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was established in the case of Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, namely, to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify .This principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..." 3.It is with this duty in mind that this Court now proceeds to analyze the grounds of appeal. Two broad issues lend themselves for determination:i.the propriety of the orders on custody, care and control;ii.the reasonableness of the orders on maintenance. 4.The law regarding parental responsibility is well settled. Article 53(1)(e) of the Constitution of Kenya provides that every child has the right :-``to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not." 5.Similarly, Section 24 of the Children Act, 2022 imposes parental responsibility on both parents and requires each parent to contribute towards the maintenance of the child according to his or her means. 6.The Court of Appeal in J.O. v S.A.O emphasized that parental responsibility is shared and that the obligation to maintain a child does not rest upon one parent exclusively. Custody 4.In the case of M.A.K vs R.M.A.A & 4 others [2023] KESC 21 (KLR), the Supreme Court emphasized that parental rights, while constitutionally protected, are not absolute and must be weighed against, and may be curtailed by, the child’s best interests. The Courts et out a non-exhaustive list of factors to consider, including the past performance of each parent, the child’s ascertainable wishes, and the need to preserve direct contract with both parents unless it is not in the child’s best interests. 5.Although the Appellant emphasized that the children had been residing with him and that he had provided stability in terms of housing and financial support, those factors alone do not constitute exceptional circumstances capable of displacing the tender years doctrine. The evidence did not demonstrate that the Respondent was unfit, neglectful, or incapable of providing proper care. The record instead shows that while the Appellant substantially contributed financially towards the welfare of the minors, the Respondent remained their primary caregiver. Consequently, the learned trial magistrate cannot be faulted for awarding actual custody, care and control to the Respondent while preserving the Appellant's parental rights through access. 6.The trial Court correctly identified that the minors, aged 7 and 3 years 10 months at the time, fell within the category of children of tender years. The established legal principle, the tender years doctrine, holds that custody of such children should presumptively be granted to the mother, unless exceptional circumstances are proven to exist. This was articulated in GITHUNGURI VS GITHUNGURI KLR 598 and reaffirmed by the Court of Appeal in J.O v S.A.O [2016] KECA 55 (KLR) where "exceptional circumstances" were held to include instances where the mother is unsettled, has remarried into an unstable environment, or lives in deplorable conditions. The Appellant’s case rested on the argument that her uninterrupted custody constituted such an exception circumstance, demonstrating a stable environment that should not have been disturbed. While continuity and stability are, indeed, crucial factors, the quality of that stability must be interrogated. The evidence on record paints a mixed picture. The Appellant provided and provides for the children and the household. The Appellant’s role appears to have been primarily that of a financial provider. Maintenance 4.Parental responsibility is a joint and equal duty. Article 53(1)(e) of The Constitution provides for equal responsibility of the mother and father to provide for the child. This principle is echoed throughout the Children Act. However, caselaw has clarified that "equal" does not mean a 50/50 split of expenses. It means that the responsibility is shared equitably and apportioned according to each parent's ability and means. As was held in G. O. & 2 others (Suing thru’ their mother and next friend) E. M. M. v M. O. O. [2016] KEHC 2325 (KLR), equal responsibility does not mean equal and similar contribution as the income of each parent, other non-monetary contribution must be borne in mind. The parent with actual custody provides significant non-monetary contributions, including daily care, guidance and supervision, as well as bear the direct costs of shelter and utilities. These contributions must be given due weight when apportioning financial obligations. 5.Although neither party filed an Affidavit of Means as contemplated under the Children Act, the trial court was entitled to rely on the oral and documentary evidence presented. The Appellant produced his payslip reflecting a monthly income of approximately Kshs.130,000/= and demonstrated that he was already meeting several recurring expenses for the minors. The Respondent acknowledged earning income through consultancy engagements albeit irregularly. The absence of formal financial disclosure did not prevent the court from assessing the relative financial capacities of the parties from the evidence available. Nevertheless, the absence of comprehensive financial disclosure called for greater caution before imposing a substantial monthly maintenance obligation. 6.The Appellant claims the award of Kshs 34,600/= for maintenance was made without an assessment of the parties’ means. The trial record does not support this assertion. The Appellant proved that he caters for the minors’ school fees, medical costs in form of a medical cover, garments and partial nutrition costs in the form of weekly fish supply and he also availed a copy of his pay slip to prove his earnings being Kshs 130,000/= .. He further expressed his readiness to pay school fees for the minors at a private school. The Respondent stated that she was currently unemployed but does consultancy work on incidental basis . While no pay slips or Affidavits of Means were fi led, this evidence provided the trial court with a sufficient basis to conclude that both parents have a source of income and that the Appellant was in a financially stronger position. 7.Upon examining the record, this Court notes that the trial court ordered the Appellant to continue paying school fees and educational expenses and further directed him to pay Kshs. 34,600/= per month as upkeep. 8.However, the judgment does not disclose the basis upon which the figure of Kshs. 34,600/= was arrived at. A judicial officer is obligated to give reasons for arriving at a particular award, particularly where the order imposes substantial recurring financial obligations upon a party. 9.In Flannery V Halifax Estate Agencies Ltd [2000] 1 WLR 377, it was held that a failure to give reasons amounts to an error of law, as it leaves the appellate court unable to discern the basis upon which the decision was reached. That reasoning is persuasive and applicable in the present context., the court emphasized that reasons are the hallmark of judicial accountability and enable parties to understand why a decision has been reached. 10.The requirement for reasons is also embedded in Article 47 of the Constitution and the principles of fair hearing under Article 50. 11.The record further reveals that the trial court did not adequately evaluate the Appellant's evidence regarding his existing financial obligations. The Appellant had demonstrated that he was already meeting substantial expenses for the minors including provision of housing, medical care, clothing and food. 12.Maintenance orders must be reasonable, proportionate and commensurate with the means of each parent. A court must undertake a balancing exercise between the needs of the child and the financial capability of each parent. 13.While assessment of maintenance remains a matter within the discretion of the trial court, judicial discretion must be exercised on ascertainable principles. Maintenance orders cannot be arbitrary. They must be anchored on evidence demonstrating the reasonable needs of the child and the respective financial capacities of each parent. Without disclosing how the figure of Kshs.34,600/= was computed, it becomes impossible for the parties, or indeed this Court on appeal, to determine whether the award reflected the actual needs of the minors or was proportionate to the Appellant's means. 14.The trial court also appears not to have sufficiently considered the Respondent's earning capacity and contribution towards the maintenance of the minors. The law does not envisage that one parent should bear the entire financial burden where both parents are capable of contributing. 15.The trial court equally failed to evaluate the Respondent's earning capacity. Although she stated that she was unemployed, she admitted undertaking consultancy work from which she derived income. The law imposes parental responsibility upon both parents according to their respective means. A finding that one parent earns less does not absolve that parent from contributing to maintenance. Rather, the contribution should be proportionate to available means and may consist of both financial and non-financial support. 16.The access orders issued by the trial court were couched in general terms and lacked sufficient specificity regarding frequency, duration, school holidays, public holidays and other practical arrangements. Such generalized orders often become a source of recurring conflict and unnecessary litigation. Children's Court orders should, as far as practicable, be sufficiently precise to minimize future disputes while preserving flexibility where circumstances change. 17.The best interests principle under Article 53(2) of the Constitution and Section 8 of the Children Act requires courts to make practical and workable arrangements that facilitate continued parental involvement by both parents. 18.While this Court is slow to interfere with the exercise of discretion by a trial court, it may do so where it is shown that the court misdirected itself, took into account irrelevant considerations, failed to consider relevant factors, or reached a plainly wrong decision. 19.In MBOGO & ANOTHER V SHAH [1968] EA 93, the Court held that an appellate court may interfere with the exercise of discretion where the trial court acted on wrong principles or where its decision would result in injustice. 20.Having carefully re-evaluated the evidence, this Court is satisfied that the trial court failed to sufficiently consider:i.The Appellant's existing contribution towards housing, medical care, clothing and food;ii.The Respondent's income and capacity to contribute;iii.The need to justify and explain the figure of Kshs. 34,600/= per month;iv.The need for clear and enforceable access arrangements.Consequently, this Court finds that the maintenance orders issued by the trial court cannot stand in their present form. Disposition 23.Accordingly, the appeal succeeds. 24.The order directing the Appellant to pay Kshs. 34,600/= per month as upkeep is hereby set aside. 25.The issue of monthly maintenance is remitted for reassessment based on:i.The actual needs of the minors;ii.The respective incomes and means of both parents;iii.The Appellant's existing contribution towards housing, education, medical care, clothing and food;iv.The principle of shared parental responsibility under Article 53(1)(e) of the Constitution and the Children Act, 2022. 26.The Respondent shall equally contribute towards the maintenance of the minors according to her means. 27.For avoidance of doubt, both parents shall continue to exercise parental responsibility jointly and severally. 28.The access orders are varied and substituted with reasonable and structured access arrangements to be agreed upon by the parties within thirty (30) days, failing which the Children's Court shall settle the terms. 29.Each party shall bear his or her own costs of the appeal. 30.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY 2026.C.KASSIMJUDGEHigh Court of Kenya