[2022] KEHC 1217 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CIVIL APPEAL NO.E002 OF 2020

IN THE MATTER OF CM (CHILD)

BETWEEN

EKG.............................................................................................................APPELLANT

AND

BMG..........................................................................................................RESPONDENT

(Appeal against judgment and decree in Nkubu Children’s Case No. 12 of 2019

by Hon. E.M.Ayuka (SRM) on 27th August, 2019)

JUDGMENT

Background

1) PMM(Appellant)and LN(Respondent)both teachers,are parents of KK and JM(Children). Their marriage was dissolved by a court order issued on 16th May, 2018.

2) Respondent filed Nkubu Children’s Case No. 12 of 2019against the Appellant seeking orders that the Respondent pays:

a) Kshs. 22,200/- per term for provision of school fees and all school needs

b) Provision of school fees and other school needs as the minors progress to institutions of higher learning

c) Any other relief

3) The Defendant/Appellant appointed counsel but did not file any defence. On 31st October, 2019, the suit was fixed for hearing 19th December, 2019. On that day, Mr. Muthomi advocate for the Appellant sought an adjournment to allow the parties to pursue an out of court settlement. The court granted an adjournment until 22nd January, 2020 and ordered the Appellant to pay all school fees and other requirements for KK (Child) who was joining form 1.

4) Subsequently, the matter was mentioned several times and when no settlement was forthcoming, the matter was on 16th July, 2020 fixed for hearing on 30th July, 2020 with the consent of both parties.

5) On 30th July, 2019, only the Respondent attended court and the matter proceeded for hearing and was fixed for judgment on 27th August, 2020.

6) By a judgment dated 27th August, 2019, the court made the following orders:

1) The Plaintiff (Respondent) shall provide shelter, food and clothing for the minors

2) Both parents shall include the minors in their respective medical covers

3) The defendant’s (Appellant) salary is attached to the extent of Kshs. 7,000/- per month being her contribution to the educational needs and or maintenance of the minors

4) The Teacher’s Service Commission is hereby directed to ensure compliance of the orders of attachment of salary

The Appeal

7) The Appellant being dissatisfied with the lower court’s decision preferred this appeal and on 01st October, 2020 filed the Memorandum of Appeal dated 25th September, 2020 which raises 8 grounds which I have summarized into two that: -

1) The Appellant was condemned unheard

2) The judgment is irregular as there was no interlocutory judgment

3) That no prayer for attachment of salary was made in the plaint

8) When the order of attachment was effected in January, 2021, Appellant moved the court by an application dated 15th February, 2021 seeking stay of the order. This court however directed the parties to proceed with the main appeal so that the issues could be determined with finality.

The Appeal

9) The Appeal was argued by way of written submissions.

Appellant’s case

10) It was the Appellant’s case that the Respondent neither proved his claim nor produced documentary evidence in support of his claim and that the order for attachment of Appellant’s salary was made in error since no such order was sought.

Respondent’s case

11) It is the Respondent’s case that the orders sought are not in the best interest of the children for the reason that the minors require parental support.

ANALYSIS AND DETERMINATION

12) I have considered the evidence on record, the appeal and the submissions on behalf of both parties.

13) The issue for determination is whether the trial Magistrate erred in directing the Appellant to pay monthly maintenance in the sum of Kshs. 7,000/-.

14) The law relating to maintenance of a child is contained in the Constitution of Kenya, 2010 and the Children Act. Article 53 of the Constitution provides:

(1) 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;

15) Maintenance is an aspect of parental care and is the responsibility of both parents of a child. Section 94(1) of the Children Act (the Act) the considerations by which the Court shall be guided when making an order for financial provision for the maintenance of a child. These considerations include inter alia:

(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) …

16) In considering provision of maintenance of the parties ‘children, the trial Court was under a duty to take into account the income or earning capacity, property and financial resources of both parties both then and in the foreseeable future. The trial Court was also to consider the parties’ financial needs, obligations, or responsibilities. As regards the children the Court was required to bear in mind their financial needs and circumstances.

17) From the evidence on record, it is apparent that as at the time of making the order, neither of the parties had provided proof of their earnings.

18) Whereas the maintenance of children is an equally shared responsibility of both parents, shared responsibility presupposes ability.

19) Whereas there is no doubt that the parties herein are gainfully employed, the court record reveals that the Respondent did not provide any evidence to support the earnings of the parties on which the court could make an informed decision of each parent’s responsibility.

20) After taking into account all the foregoing factors, I am persuaded that there is sufficient reason for this Court to interfere with the finding of the trial Magistrate on the quantum of maintenance.

21) In arriving at this decision, I am alive to the well settled principle that an appellate Court should be slow to interfere with the exercise of the discretion of the Court below unless it is satisfied that the discretion of that Court was not exercised judiciously. (See Mbogo & Another versus Shah [1968] E.A. 93).

22) The provisions of Section 99 of the Actprovides THAT:

The court shall have power to impose such conditions as it thinks fit to an order made under this section and shall have power to vary, modify or discharge any order made under section 98 with respect to the making of any financial provision, by altering the times of payments or by increasing or diminishing the amount payable or may temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the court thinks fit.

23) Accordingly, and for the reasons set hereinabove, it is hereby ordered:

1) The judgment of the court and the order dated 27th August, 2019 are hereby set aside

2) This case is remitted to Nkubu Magistrate’s Court to be heard by another magistrate other than Hon. Ayuka

3) For the best interest of the children and pending the hearing and determination of the suit, the following orders as made by the trial magistrate are hereby retained with variation that:

i. The Plaintiff (Respondent) shall provide shelter, food and clothing for the minors

ii. Both parents shall include the minors in their respective medical covers

iii. Appellant shall pay the school fees and educational requirements ofKK (minor) until further orders of the court

4) Each party shall bear its own costs of the appeal.

DATED AT MERU THIS 17TH DAY OF MARCH 2022

T. W. CHERERE

JUDGE

COURT ASSISTANT - MORRIS KINOTI

FOR APPELLANT - N/A FOR GICHUNGE MUTHURI & COMPANY ADVOCATES

FOR RESPONDENT - PRESENT IN PERSON