[2022] KEHC 13739 (KLR)

In re ABK (Minor) (Civil Appeal E035 of 2022) [2022] KEHC 13739 (KLR) (Family) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13739 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E035 of 2022

AO Muchelule, J

October 13, 2022

IN THE MATTER OF ABK (MINOR)

Between

FKM

Appellant

and

RAJ

Respondent

(An appeal from the judgment and/or decree of the Honourable F. Terer (RM) delivered on 18th March 2022 in Nairobi Children’s Court Case No. E601 of 2021)

Judgment

1. This is a first appeal from the judgment of the learned Resident Magistrate in Nairobi Children Court Cause No. E601 of 2021 that was delivered on 18th March 2022. In the decision the trial court granted legal custody of the minor ABK to both the father FKM (the appellant) and the mother RAJ (the respondent). Actual custody, care and control were given to the respondent. The appellant was asked to provide for the child’s school fees, school-related expenses and a comprehensive medical cover, and to provide Kshs.30,000/= every month towards the child’s upkeep. The respondent was to provide for the child’s clothing and partly provide for its shelter and food. The appellant was allowed access the child.

2. It was the order that the appellant provides Kshs.30,000/= monthly towards the child’s upkeep that aggrieved the appellant. In the Memorandum of Appeal dated 29th March 2022 he complained that the lower court had erred in law and in fact by asking him to pay Kshs.30,000/= monthly towards the child’s upkeep over and above the payment of school fees, school related expenses and a comprehensive medical cover that he was always ready and willing to undertake. His case was that, given the statutory and constitutional provisions that parental responsibility was shared, the order for him to pay the money monthly was excessive, discriminative and unjustified, given the evidence tendered as to the financial means of the parties and his other family obligations.

3. This court is required to subject all the evidence tendered before the trial court to a fresh and exhaustive review and reach its own conclusions thereon, bearing in mind that the trial court had the benefit of seeking and hearing the parties as they testified and therefore had the feel of the case (Selle & Another –v- Associated Motor Boat Co. Ltd & Others [1968]EA 123). Further, it was reiterated in Richard Kaitany Chemogong –v- R[1984]eKLR that a Court of Appeal will not normally interfere with a finding of fact by the trial court whether in civil or criminal cases unless it is based on no evidence, or on a misapprehension of the evidence, or the court is shown demonstrably to have acted on wrong principles in reaching the findings it did.

4. The background of the case was that the appellant and the respondent had a relationship that led to the birth of the child on 20th May 2016. This is a boy child. The appellant is a building contractor and the respondent is employed as an office administrator at [Particulars Withhed] Housing Coop. Society. The appellant has his own children that he educates and takes care of. The respondent has no other child. The respondent sued the appellant in the Children Court seeking orders of custody, upkeep, education and medical over the child. The orders granted were the subject of the appeal.

5. The trial court considered the financial means of the parties. It observed that the appellant was a man of means and that was why he was asked to be remitting Kshs.30,000/= monthly. The court noted that the appellant ran a building company which owned rental houses in Nairobi and elsewhere, and that the respondent’s salary was not enough to meet the needs of the minor. The appellant complained to the court that coCvid-19 pandemic had adversely affected his business. This was not considered in the judgment. It was not considered that the appellant had other children to fend for. It was important for the court to appreciate that, all the time, the appellant was taking care of the child’s school fees, school-related expenses and comprehensive medical cover. If he had better means compared to the respondent, it ought to have been considered that school fees, school-related expenses and medical cover, taken together, form the greater part of the upbringing of a child. This responsibility increases in money terms as the child grows.

6. Section 94(1)(c) of the Children Act obligated the trial court to consider the financial needs of the child, among other things, before deciding that Kshs.30,000/= per month was required from the appellant. The judgment did not show what these needs were, and whether or not they could not be met by the respondent. It is now accepted that the trial court has, in determining the responsibility that each parent has to bear, to ascertain the specific needs of the child in question and critically examine the financial and other ability of each parent to be able to decide what will be borne by either of them (E.K.T.M. –v- E.C.C., Civil Appeal No. 062 of 2020 ([2021]eKLR)). The needs of the child must be reasonable and moderate, and should relate to the standards of the parents.

7. Article 53(1)(e) of the Constitution enjoins the parents to provide for the child on equal basis. The lower court had this in mind.

8. I have considered the appeal and the facts of the case. I have reached the conclusion that the order that the appellant pays Kshs.30,000/= monthly towards the child’s upkeep was onerous, erroneous and not borne by the evidence on record. The order is hereby set aside, but the appellant shall continue to take care of the child’s school fees, school related expenses and the medical expenses of the child as ordered by the trial court.

9. To that extent, the appeal is allowed. Each side shall bear own costs on appeal.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE