[2009] KEHC 782 (KLR)
The court determined that, despite the respondent's lack of salaried employment, he could not abdicate his parental responsibility to maintain his children. The best interests of the children required that both parents contribute to their maintenance. However, the court found that the applicant had not provided...
Source-derived case information.
- Citation
- [2009] KEHC 782 (KLR)
- Parties
- Appellant: Frank Omwange Omare; Appellant: Shalome Joy Omare (Suing through the next Friend Dubine Nyaboke Siro); Respondent: Kennedy James Omare Okore
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2008
- Procedural Posture
- Civil Appeal / Interlocutory Application for Interim Maintenance Pending Appeal
- Outcome
- interim maintenance granted in part; costs to applicant
- Legal Topics
- Child Maintenance, Custody Disputes, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Frank Omwange Omare
Appellant
Shalome Joy Omare (Suing through the next Friend Dubine Nyaboke Siro)
Appellant
Kennedy James Omare Okore
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Interim Maintenance Pending Appeal
Legal Issues
- 1 Whether the respondent should be ordered to pay interim maintenance for the children pending appeal.
- 2 What amount, if any, is appropriate for interim maintenance given the respondent's employment status.
- 3 Whether the maintenance of the children is a joint responsibility of both parents.
Ratio Decidendi
The court determined that, despite the respondent's lack of salaried employment, he could not abdicate his parental responsibility to maintain his children. The best interests of the children required that both parents contribute to their maintenance. However, the court found that the applicant had not provided evidence of the children's financial needs or justification for the amount claimed. Considering the respondent's current employment status and earning capacity, the court ordered a reduced interim maintenance sum of Kshs. 5,000 per month to be paid by the respondent, ensuring that the order was realistic and enforceable. The respondent was also ordered to pay the costs of the...
Court Disposition
interim maintenance granted in part; costs to applicant
Orders
- The respondent shall pay Kshs. 5,000 per month as interim maintenance for the applicants.
- The respondent shall pay the costs of the application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
Civil Appeal 33 of 2008
FRANK OMWANGE OMARE ....................APPELLANTS/APPLICANTS
SHALOME JOY OMARE
(Suing through the next Friend DUBINE NYABOKE SIRO)
-VERSUS-
KENNEDY JAMES OMARE OKORE……………………RESPONDENT
R U L I N G
The applicants are children of tender years. They are children of the next friend and the respondent who are married but estranged since about November, 2007. The applicants through the next friend filed Kisii CMCC Children’s Case no. 38 of 2009 in which an application for injunction was made. The trial magistrate heard the application which was dismissed and custody of the applicants granted to the respondent. It is that decision that is being challenged on appeal in this court. This court granted stay of that order pending the appeal, which means the children are with the next friend (their mother).
The present application has been brought under sections 82,83,88 91 and 97 of the Children Act, 2001 and sections 3A and 63(e) of the Civil Procedure Act for an order that an interim maintenance of a sum of Kshs. 8000/= per month be provided to cater for the applicants’ shelter, education, accommodation, medical care, clothing and subsistence. It was on the ground that since the couple separated the respondent has failed to assist the next friend in the support and maintenance of the applicants. The prayer is for 1/3 of the monthly income of the respondent (Kshs. 8000/= a month) which was indicated as Kshs. 32,252/65. The respondent was said to be employed by Roto Moulders Ltd and earning that amount.
The respondent swore a replying affidavit in which he stated that he was employed by Roto Moulders Ltd up to June, 2008 when the employment was terminated. He joined Polytanks Ltd in July 2008 on contract which was terminated on 30/9/2008. He exhibited the letter of termination, which is marked ‘KOO1’. Since then, he says, he does not have a stable job and therefore cannot afford Kshs. 8000/= a month. He stated that he was willing to provide school fees and medical care for the children when due and asks that the responsibility to take care of the children be shared between the parents. He swore that the children do stay with his parents during school holidays and some weekends and that he has provided for them during those occasions.
There was no further affidavit by the next friend, which means that the fact that the respondent is no longer employed and therefore does not have a steady (monthly) salary is not in dispute.
I listened carefully to Mr. Oguttu for the applicants and Mr. Ombachi for the respondent as they submitted on this application.
Under section 4(2) of the Children Act the primary consideration in determining this application shall be the best interests of the applicants. The children are at Green Hill Academy in Kisii and stay with the mother (next friend). The court is enjoined by section 90(a) of the Act to consider that the maintenance of these children is the joint responsibility of the respondent and the next friend. The next friend in her supporting affidavit did not indicate the financial needs of the applicants, or on what basis it was considered that Kshs. 8000/= per month would suffice. Under section 94(1) (a) of the Act, the court has to consider the income or earning capacity of the respondent. The court should not make an order that would be in vain.
I agree with Mr. Oguttu that the respondent cannot abdicate his responsibility to the children just because he is not in salaried employment.
After consideration of the law and the facts that the application has revealed, it is determined that a sum of Kshs. 5000/= per month should be paid by the respondent every month towards the maintenance of the applicants. It is so ordered. The respondent shall pay costs of the application.
Dated, signed and delivered at Kisii this.11th Day of November, 2009
A.O.MUCHELULE
JUDGE
11/11/2009
11/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr. Ombachi for Respondent
Mr. masese for Mr. Oguttu for appellant
Court: Ruling in open court.
A.O.MUCHELULE
JUDGE
11/11/2009