https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9522

FKM v IWM (Civil Appeal E041 of 2023) [2026] KEHC 9522 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9522 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E041 of 2023 EN Maina, J June 25, 2026 Between FKM Appellant and IWM Respondent (Being an appeal from the judgment and decree of Hon E.K. Suter (Principal Magistrate) delivered on 19th January 2023 in Mavoko Children’s Case No. E 204 of 2021) Judgment 1.The Respondent in an amended Plaint dated filed on 24/11/2022 sued the Appellant for payment of school fees and related expenses; payment of the child’s food, clothing, house help and general upkeep and maintenance of the child and costs of the suit. It was averred that she sired a child D.W with the Respondent and parental responsibility should be shared equally. 2.The Appellant herein who was the Defendant in the Trial Court in a statement of Defence dated 12/07/2022 denied knowing the child until late 2021. On his part, he asked the court to order equal meeting of the costs of the minor’s shelter, clothing, food and utilities; an order that the Plaintiff transfer the minor to a cheaper private school and thereafter school fees be shared equally, an order that the Defendant pays Kshs 5,000 as maintenance to the minor, an order that the Defendant shall have unrestricted access to the minor and costs of the suit. 3.Before the hearing began, the Appellant indicated that he did not deny paternity and there was no need for DNA to be conducted. The Trial Court heard two witnesses, one for the Respondent and one for the Appellant and considered their respective affidavits of means and in its judgment dated 19/01/2023 found as follows;a.That the Plaintiff and Defendant shall have joint legal custody of the minor and the plaintiff shall have physical custody of the minor.b.That the Defendant shall have unlimited access to the child on such terms and conditions as agreed by parties.c.That the Defendant shall pay the child's school fees and also settle the outstanding fees arrears.d.That the Defendant shall include the child in his employment medical cover and provide for the child's general medical needs.e.That the Plaintiff shall cater for the child's housing, Nanny, clothing, food and utility needs.f.That this being a children's matter, each party shall bear own costs. 4.Being dissatisfied by this decision, the Appellant filed a Memorandum of Appeal filed on 23/02/2023 seeking to have the judgment set aside and the entire suit be dismissed with costs; that costs of the Appeal and lower court be borne by the Respondent. This was premised on the following grounds of appeal;a.That the learned trial Magistrate erred in law and fact by failing to apportion responsibility based on the affidavit of means and the respective earnings of the parties herein. Notably school fees which is inordinately high was apportioned to the appellant yet he has a young family to support who are largely dependent on him and one of his children is school going.b.That the learned Magistrate erred in law and fact by failing to address herself on who should choose the minors schooling given that the Appellant has the sole responsibility of paying the school fees.c.That the learned Magistrate erred in law and fact by holding that the Respondent had proved her case on a balance of probability against the Appellant which finding was contrary to the evidence and material placed before her thereby occasioning serious miscarriage of justice to the Appellantd.That the learned Magistrate erred in law and fact by favoring the status quo where there was compelling evidence that the Appellant had produced the expenditure that he incurs through the affidavit of means whereas the Respondent whilst the not employed was allowed to rely on her affidavit of means which based on her past pay slips.e.That the learned Magistrate erred in law and fact by failing to take into account the inconsistencies of the Respondents financial means. Notably, she had pleaded that was unemployed and lives on by contributions from well-wishers. Notably she failed to produce her affidavit of means.f.That the learned Magistrate erred in law and fact and misdirected herself when she held that the Appellant was 100% liable for the school fees and school related expenses thereby occasioning serious miscarriage of justice.g.That the learned Magistrate erred in law and fact in failing to consider and address herself who shall have the reserve of selecting and choosing the school options for the minor.h.That the learned Magistrate erred in law and fact by failing to determine how much the Respondent should contribute to the school fees of the minor in the event she does not reconsider taking the minor to a cheaper or alternative school.i.That the learned Magistrate erred in law and fact by not allocating the Respondent any school fees related responsibility despite being an equal party in the life and wellbeing of the minor.j.The learned Magistrate erred in law and fact by considering extraneous matters in arriving at her judgment and disregarding grounds and submissions tendered by the Appellant’s counsel. 5.The Appeal was canvassed by way of written submissions and on its part, the Appellant filed submissions dated 20/10/2025 wherein he indicated that he takes responsibility for his son’s school fees and commits Kshs 40,000 per term as school fees for the minor. That the Judgment did not consider his other financial obligations to his creditor, wife, other two school going children and other dependents. In addition, he is unable to pay for his mortgage with Standard Chartered, his employer because 1/3 of his salary has been attached. It was submitted that the judgment was ambiguous as it did not disclose the amount of school fees to be paid and meant that he ought to pay whatever amount of school fees was demanded. 6.It was contended that the contents of the request note dated 14/10/2024 and the demand letter dated 16/10/2024 were inaccurate and grossly exaggerated and were meant to illicitly obtain monies from the Appellant. That the comprehensive statement dated 23/10/2024 indicated that the fee balance was Kshs 32,270 and not Kshs 131,000, an amount that was disowned by the headteacher and blamed on the accountant whom it is alleged conveniently disappeared. He was served with demand letter dated 31/10/2024 seeking to justify the fee balance of Kshs 131,000 on account of a purported refund of Kshs 217,650 he owed the Respondent. That thereafter the Respondent filed and application dated 22/11/2024 seeking a refund of Kshs 217,650 purporting to be the school fees she had already paid for the minor but the same as dismissed in a ruling delivered on 20/03/2025 7.The Appellant was of the opinion that he should be allowed to chose the school the minor attends if he is the one to pay the school fees and proposed Real Junior School and Benuru group of schools which he says are in the neigbourhood. In support of his submissions, reliance was placed on the following cases; Kenya Airports Authority vs Mitu -Bell welfare society and 2 other [2016] KECA 432 (KLR), TMM vs JMM [2019] e KLR, MKN vs JC & Children Court Kericho [2019] e KLR, AWM vs JWW [2022] e KLR and BRO vs EWJNWM [2022] e KLR. 8.On her part, the Respondent filed submissions dated 6/02/2026 wherein it was submitted that she paid Kshs 217,650 between 10/03/2022 and 23/10/2024 to the minors school to prevent the minor from being sent home from school and disruption of his education due to the Appellant’s persistent non compliance with the Trial court’s order. It was contended that the Trial Court properly evaluated the Appellant’s earning capacity based on the bank statements before the order was given. It was submitted that the Trial court properly exercised its judicial discretion in apportioning parental responsibility between the parties. 9.Secondly, it was submitted that disrupting the child’s settled educational environment would be contrary to his best interests as he was in that school from play group and is currently in grade 5 where he has demonstrated consistent exemplary academic performance. Further, the school’s proximity to her residence eliminates transport costs and allows quick access incase of emergencies. The school also offers a wide range of co-curricular activities in which the minor has excelled. She denied the allegations of having undue influence on the school administrators and termed them as unsubstantiated. The Respondent contends that a parent who persistently defaults in meeting educational obligations cannot reasonably seek to dictate school choice. 10.As regards the school fees cap, it was submitted that that would be impractical as the amount is based on prevailing and progressive fee structure depending on academic advancement. The court was urged not to cap the amount as it would penalize the parent who has consistently discharged her obligations while rewarding the Appellant who has persistently defaulted in payment of school fees. Lastly, since the Appellant had not demonstrated misdirection, errors or principle or misapprehension of evidence, the court was urged to dismiss the appeal and uphold the Trial Court judgment in its entirety. In support of its submissions, reliance was placed on the following cases; MNM v SNK (Civil Appeal E008 of 2022) [2023] КЕНС 3915 (KLR), EOO v LAB (Civil Appeal E050 of 2023) [2025] KЕНС 10332 (KLR), EMO v JMN (Civil Appeal 120 of 2019) [2021] КЕНС 7788 (KLR), MMG (Suing as the Mother and Next Friend of P.M.K, T.A, F.B, D.K & E.M v To (Children's Appeal Case 5 of 2021) [2023] КЕНС 506 (KLR) and Mbogo & Another v Shah [1968] EA 93. legal opinion 11.The court has considered the Trial Court record, the Memorandum of Appeal, the additional documents filed as well as the submissions of the parties and I note that it is not in contention that the minor D.W is the son of the parties to this case and he has been studying at Kitengela International School since he was in play group to date. It is also not disputed that the minor is currently living with The Respondent, that she has actual custody and that the parties have joint legal custody. From the record of Appeal, the finding of the Trial Court on access, medical cover and expenses are not disputed. The Respondent was ordered to take care of the child’s housing, nanny, clothing, food and utility needs and this has also not been disputed. What the Appellant takes issue with is the order directing him to pay the child school fees and also settle the outstanding fees arrears. All the grounds of appeal are raised around this issue and that is what is before this court for determination. 12.At the onset, I wish to address two issues, one; that this is an Appellate court that did not have the opportunity to see or hear the witnesses testify like the Trial court as was stated in the case of Francis Lokadongoy Lokogy v Reuben Kiplagat Kiptarus [2020] eKLR where the court rendered itself as follows:“As this is a first appeal, this court is under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching its own conclusions in the matter. In carrying out this duty this court has to remember that it has no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. The court has also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanor of witnesses. In a nutshell a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court but of course where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgement.” 13.Secondly, I wish to emphasize that the best interest of the child are of paramount importance. This has been provides for under Article 53 (2) of the Constitution of Kenya,2010 that provides that;“A child’s best interests are of paramount importance in every matter concerning the child.” 14.Section 8 (1) and (2) of the Children’s Act, Cap 41 Laws of Kenya provides as follows;“(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies;(a)the best interests of the child shall be the primary consideration;(b).the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.(2).All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a).safeguard and promote the rights and welfare of the child;(b).conserve and promote the welfare of the child; and (c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest. 15.This is emphasized under Article 4 of the African Charter on the Rights and Welfare of the child as well as Article 3 of the United Nation Convention on the Rights of the Child which form part of Kenyan law by virtue of Article 2 (5) and 2(6) of the Constitution of Kenya. 16.In making a finding, the child in question will be the person to be considered and not the interests of the adults. It is clear that the parties herein have been unable to agree on the school that the minor herein should attend and thus the court must intervene. 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 as highlighted in Article 53 (1) (e) of the Constitution. Parental Responsibility has been defined under Section 31 (1) of the Children’s Act as follows;“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.” 17.As per section 31 (2) of the Act, the duties are;“(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;(b)the duty to protect the child from neglect, abuse, discrimination or other differential treatment;(c)the duty to—(i)provide parental guidance in religious, moral, social, cultural and other values that are not harmful to the child;(ii)determine the name of the child;(iii)procure registration of the birth of his or her child;(iv)appoint a legal guardian in respect of the child;(v)receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child;(vi)facilitate or restrict the migration of the child from or within Kenya;(vii)upon the death of the child, to arrange for the burial, cremation of the child or any other acceptable method of interment; and(d)the duty to ensure that, during the temporary absence of the parent or guardian, the child shall be committed to the care of a fit person. 18.Section 32 of the Act emphasizes on equal parental responsibility and espouses that both parents share equal parental responsibility on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility whether or not the child is born within or outside wedlock. In this case, the court shared responsibility as follows; the mother takes care of rent, food, toiletry, house, electricity, water and clothing while the father takes care of school fees and medical expenses. 19.In the case of in MNM v SNK (Civil Appeal E008 of 2022) [2023] KEHC 3915 (KLR) where the court while dealing with a similar issue rendered itself as follows;“Parental responsibility is shared and not equal based on the financial position of each parent. The mother as the resident parent has a nurturing role to the children and the father to provide maintenance and upkeep of the children.” Therefore, each parent is obliged to make provision for the maintenance of the child and such provisions will be dependent upon the financial capacity of said parent.” 20.Similarly, in JCK v EC [2025] KEHC 11964 (KLR) the court in finding that the order that was given by the trial court was fair, stated as follows;“From the case at hand, the Appellant contends that the learned trial magistrate unfairly imposed an upkeep burden of Kshs. 8,000/= per month without adequately assessing his financial capacity. It was argued that the Respondent also earns a stable income and should bear an equal share of the financial responsibility. According to pay slips and affidavit evidence, the Appellant earns a net monthly income of Kshs. 60,267, while the Respondent earns Kshs. 31,137. Based on this disparity, the trial court correctly found that the Appellant was in a better financial position to contribute towards the children’s monthly upkeep. Additionally, the trial court judgment shows a balanced distribution of responsibilities:a.The Appellant was directed to pay school-related expenses and Kshs. 8,000 monthly.b.The Respondent was tasked with providing food, shelter, and clothing.c.Medical needs were to be shared equally.d.Holiday custody and access arrangements were mutually structured. 21.In this case, the fees structure indicates that the fees shall be increasing depending on what grade the child is in so that suppose the Trial court had pegged school fees at a certain amount, the same would have already changed by the time this appeal was being determined. That will most definitely also change when the child goes to the next level of his education therefore it would be in the best interest of the child that the parents here are able to have a sit down and discuss their child’s education on need basis. However, the doors of the court remain open in case of any eventualities. 22.I have also noted with concern that the Appellant has failed to pay school fees for his child on a number of instances forcing the court to deduct a portion of his salary to satisfy the arrears. Court orders are not mere suggestions that should be followed at the pleasure of the parties. They must strictly be followed. 23.For this court to interfere with the award of the Trial Court, it must be shown that the Trial courtmisdirected itself or acted on matters it should not have acted upon or failed to take into consideration matters it should have taken into consideration. Having gone through the court record and the judgement, I note that the Trial Court gave reasons for why it arrived at the finding that it did and I see no reason to interfere with the said judgment. The same was fair and equitable. I agree with the Trial Court that to transfer the minor at this stage would not be in his best interest considering the strides he has made academically and even in football. There is no evidence that he will get the same level of education in the schools proposed neither is it clear how far the schools are from where the minor currently resides. The Appellant urges the court to find that the minor be transferred but that cannot be a decision made by this court. The distance, quality of learning, food, education and special needs inter alia must be taken into consideration while making such decisions. 24.In the end, the Appeal is dismissed. I wish to clarify that the Appellant will take care of school fees and school related expenses. In the event of default, 1/3 of the salary will be attached to cater for the minors needs. 25.This being a family matter, each party shall bear its own costs. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 25TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Ms Nakoye for RespondentMr. Nahone for AppellantCourt Assistant/Interpreter – Catherine