[2022] KEHC 15893 (KLR)

DKW v EWW (Civil Appeal E023 of 2021) [2022] KEHC 15893 (KLR) (Family) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15893 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E023 of 2021

MA Odero, J

November 4, 2022

Between

DKW

Appellant

and

EWW

Respondent

Judgment

1. Before this court is the Amended Memorandum of Appeal dated August 25, 2021 by which the Appellant DKW seeks the following orders:-'1. That Appeal be allowed entirely.

2. That this Appeal be allowed and the Judgment of the lower court dated September 24, 2019 be set aside in its entirety and be substituted with the judgment of this Honourable court.

3. That the costs of this Appeal and suit appealed from be awarded to the Appellant.

4. That the court to grant any other or further orders as it may deem just.'

2. The Respondent EWW did not file any response to the appeal. The matter was canvassed by way of written submissions. The Appellant filed their written submissions dated July 22, 2022. The Respondents did not participate in the Appeal and did not file any written submissions.

Background 3. This appeal arises from a judgment delivered by the Childrens Court in Nairobi Children’s case No 553 of 2018. In that matter before the lower court the Respondent had filed a suit seeking to be awarded legal and actual custody of the two minor children. She also prayed for maintenance orders in respect of the minors.

4. The Appellant herein (who was the Defendant in the lower court) filed a Defence and counterclaim seeking that the court award the parties joint legal and actual custody of the minors. The Appellant also sought to be granted unlimited access to the minors on alternate weekends from 10. 00 am to 5. 00 pm.

5. After hearing evidence from both parties the learned Magistrate Hon HM Mbati Senior Resident Magistrate delivered a judgment on September 24, 2019 in which he made the following orders:-'(a)Both parties shall have joint legal custody of the children. However, the Plaintiff shall have actual custody, care and control of the minors and the Defendant shall have access on alternate days of the weekend, from 10am to 5pm. Drop off and pick up point shall be agreed upon.(b)The Defendant shall maintain the children in the medical cover provided by his employer.(c)The Defendant shall provide maintenance for the children at Kshs 27,500/- per month by the 30th of every month with effect from September 30, 2019. However once NGM attains the age of 3 years old this amount shall increase to Kshs 40,000/- per month, shall increase at the rate of 10% p.a to cater for inflation, until the children attain the age of majority.(d)The Plaintiff shall provide shelter, clothing and all other miscellaneous expenses.(e )Last but not least, this being a family matter, each party shall bear its own costs and shall be at liberty to apply.'

6. Being aggrieved by said judgment the Applicant filed the Memorandum of Appeal dated March 4, 2021 which Memorandum was later amended on August 25, 2021 which raised the following grounds of Appeal:-'a.That the learned trial Magistrate erred in law by dismissing the Appellant’s application for review of the judgment delivered on September 24, 2019. b.That the learned trial Magistrate erred in law and in fact in entirely failing to consider and give probative value to the averments and evidence adduced by the Appellant in support of his claim for setting aside the judgment.c.That the learned trial Magistrate erred in law and in fact by failing to consider and take into account that dividing his income of Kshs 110,000/- with a monthly maintenance of Kshs 27,500/- to cater for each of his four (4) children would leave him with no money to cater for his own personal needs and hence make it difficult to attend his official duties.d.That the learned trial Magistrate erred in law and in fact by failing to take into consideration that the Respondent is employed and hence should equally provide for the minors as is provided in Article 53 (c) of theConstitution.e.That the learned trial Magistrate erred in law and in fact by failing to consider the Appellant’s prayer to have the children therein moved to a more affordable school as was the case before without abdicating the Appellant’s role of providing for the minors.f.That the learned trial Magistrate erred in law and in fact by issuing an order that the minor in this suit could attend school where the school fees was Kshs 37,500/- whereas the Appellants other two children attended school were the school fees was between 5,000 to 15,000/- hence inequality amongst the children.g.That the learned trial Magistrate erred in law and in fact by failing to set aside the order for maintenance expenses be increased to Kshs 40,000/- upon he youngest minor attaining the age of 3 years and 10% annual increment to cover inflation. The amount is unsustainable in the long term given the current prevailing circumstances.h.That the learned trial Magistrate erred in law and in fact by failing to consider the Applicant’s prayer to review the judgment as it is designed to punish the Appellant, order that clearly not designed to take into consideration the best interest of all his children.i.That the learned trial Magistrate erred in law and in fact in failing to grant the prayers sought by the Appellant in the application.'

7. As stated earlier the appeal was not opposed.

Analysis and Determination 8. I have carefully considered this Memorandum of Appeal and the submissions filed in support thereof. I have also perused the record of the proceedings before the lower court.

9. This court is alive to the fact that it did not hear the witnesses testify or observe their demeanor, and therefore should be slow to reverse the trial court’s decision. It is however not lost on this court that a first appeal is in effect a retrial. The court must therefore consider the evidence, evaluate itself and draw its own conclusions. In the case of Peters vs Sunday Posts Ltd [1958] EA 424 at page 429, the Court of Appeal rendered itself thus:-'It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tired the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion.'

10. The Appellant is particularly aggrieved by the orders made by the trial court requiring him to pay an amount of Kshs 27,500 per month which would later increase to Kshs 40,000 per month once the younger child attains the age of three (3) years) as maintenance and education costs for the minors. The court further directed that this amount increase at the rate of 10% per annum to cater for inflation until the minors attain the age of majority.

11. The Appellant argues that given that his net salary is Kshs 110,000/- and given the fact that he has two (2) other children whom he is also required to provide for, the monthly payment ordered by the court both oppressive and punitive as he would be left without any funds for his own use. He prays that this court review/vary the orders of maintenance and education costs made by the trial court.

12. It is not in dispute that the Appellant is the biological father of the two (2) minors. He does not deny paternity. As correctly pointed out by the learned trial magistrate Article 53(e) of the Constitution of Kenya 2010 provides that every child has the right-'(e)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.'

13. This means that each parent has an equal responsibility to provide for the maintenance and care of their children.

14. I also note that the learned trial magistrate did correctly consider Section 94 of the Children Act 2001 which provides for the aspects to be considered by the court in making an order for financial provision in respect of a minor as follows:-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.'

15. The main expenses of the two (2) minors would include Accommodation, food, education (school fees), clothing and medical care. The Appellant provides for the medical care of the minors as he has included them in the medical cover provided by his employer. The Appellant has no objection to the order directing him to cater for the medical costs for the minor.

16. The Respondent who is the Childrens mother resides with the minors. The trial court directed her to provide for the accommodation, clothing and/miscellaneous expenses for the children. That would leave the expenses for food and education.

17. In the judgment delivered in the lower court the trial magistrate clearly explained how he arrived at the figure of Kshs 27,500/- per month. At Page 5 of the judgment Page 77 of the Record of Appeal the learned trial Magistrate stated as follows:'I have considered the evidence on record, the submissions filed herein and the applicable law. The Defendant’s testimony is that he earns net salary of Kshs 110,000. When I divide this figure by 5 i.e, between the Defendant and his four children I find that the Defendant and each child is entitled to a monthly maintenance amount of Kshs 22,000/ because all children are equal before the law. In any event, the defendant cannot go round siring children without expecting to have parental responsibility for them. Defendant must be aware that every child he brings in to this world must be provided for from his earning and the best interest of the children is a paramount consideration irrespective of whatever other obligations he may have. This was the position of Justice Omondi in MalindiHCCA 52 of 2009 ARH vs RA where he said , 'the same goes for maintenance of the child- the child’s interest and welfare is paramount – irrespective of whatever other social obligations the applicant may have.' Children deserve the best life that their parents are able to give them. This means that they should go to the best school within their parents means and live in a neighourhood similar to where they lived, before their parents separated.However due to the fact the Defendant has provided a medical cover, I will knock off Khs 2,000/- per child form the quantum of maintenance above. Consequently, each child will have a total of Kshs 20,000/- available to them every month, for provision of food at Kshs 250/- per day, which totals to Kshs 7,500/- per month and education related expenses at Kshs 12,500/- per month. Accordingly, the children may attend a school where school fees is not more than Kshs 37,500/- per term. During the holidays, the defendant shall continue to remit the full amount quantified above and the Plaintiff shall utilize the education amount, for provision of school related expenses. In November and December, the Plaintiff shall save for uniform and school books required when schools open in January. Having said that, the Plaintiff shall provide shelter, clothing and all other miscellaneous expenses.'

18. The trial court added that the Appellant would pay Kshs 40,000/- per month when the younger child attains the age of schooling to cater their schooling and their maintenance. The Appellant is also to top up this amount per year by 10% per year. It is evident that both parents were to share the cost of feeding and educating the two minors. This is as provided for by Article 53 (e) of theConstitution.

19. The Appellant pleads that he has two (2) other children who he also has to provide for. The Appellant cannot use the fact that he has two (2) other children as an excuse to evade his responsibility to provide for the minors herein.

20. The Appellant submitted that the trial court erred in committing his entire salary of Kshs 110,000/- towards the maintenance of his four (4) children without considering that the Appellant needed funds for his own use. This is not entirely correct. The learned trial Magistrate clearly stated at Page 4 of his judgment (Page 76 of the Record) that he divided the Appellants salary between himself and the four (4) children coming to a figure of Kshs 22,000/- each (i.e., 110,000 divided by five). Therefore, it is clear that the court took into consideration the needs of the appellant to have funds for his own use.

21. The decision of the trial court on maintenance was fair given that both parties are in paid employment. The Respondent provides for the accommodation, clothes and miscellaneous costs while the Appellant provides medical cover the minors. Both parents then share the cost for food and education for the minors.

22. All in all I find that the learned trial magistrate made a reasoned decision, which was supported by the law and the facts of this particular case.

23. I do not find the decision of the trial court to have been unfair or punitive or oppressive towards the Appellant. In conclusion, I find no merit in this Appeal. The same is hereby dismissed in its entirety. This being a family mater I made no orders on costs.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. ....................................MAUREEN A. ODEROJUDGE