[2022] KEHC 11798 (KLR)

In re TO (Minor) (Civil Appeal 45 of 2019) [2022] KEHC 11798 (KLR) (Family) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11798 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal 45 of 2019

AO Muchelule, J

May 12, 2022

IN THE MATTER OF TO (MINOR)

Between

EIM

Appellant

and

ZMO

Respondent

(An appeal from the ruling and or order of the Honourable Teresia Nyangena (SPM) delivered on 21st July 2017 in Nairobi Children’s Court Case No. 614 of 2012)

Judgment

1. The appellant EIM and the respondent ZMO were married between 2003 and 2010. Their child TO was born between them on June 10, 2003. On May 16, 2012 the appellant filed a plaint at the Children Court at Milimani complaining that the respondent had failed to maintain and educate the child. She sought an order that the respondent be ordered to pay Kshs 40,000/= monthly towards the upkeep and education of the child.

2. With the suit was a chamber summons seeking an interim order for payment of fees and upkeep. She obtained interim orders. The application came up forinter-partehearing on July 27, 2012. The respondent had been served but had not defended the application. The order for the payment of Kshs 30,000/= was extended. The respondent eventually opposed the application. On August 4, 2012 a consent order was recorded that the respondent would continue to pay the monthly upkeep. On April 18, 2014 a consent was recorded that there was arrears of Kshs 480,000/= owed by the respondent; the respondent would liquidate the arrears by paying Kshs 100,000/= on or before March 24, 2014; the balance of Kshs 380,000/= would be paid in monthly instalments of Kshs 15,000/= beginning April 15, 2014 and on every 15th of succeeding month until completion; the ordered Kshs 30,000/= per month would continue to be paid on the 15th of each month starting April 2014 alongside with the arrears; and, in case of any default, execution would issue for the total arrears. The respondent failed to pay as agreed which led to several notices to show cause at the children court.

3. The respondent in Civil Appeal No 13 of 2013 before this court appealed and was directed to pay Kshs 70,000/= within 30 days and obtained stay for one month. He filed another appeal in Civil Appeal No 33 of 2013. On May 30, 2013 the orders above were discharged. The appeals were subsequently dismissed.

4. The dispute before the children court was eventually heard and a judgment delivered on April 30, 2015. The court considered the financial means of the parties. It ordered contribution towards maintenance of the child. The respondent was to pay the child’s fees and related expenses; he was ordered to pay Kshs 10,000/= monthly towards the child’s food expenses and Kshs 5,000/= monthly towards clothing and entertainment; and lastly, he was to clear the arrears arising from the orders of July 27, 2012.

5. In an application dated May 4, 2016, the respondent sought the stay of the orders dated July 27, 2012, their review and setting aside. He claimed that the orders were based on concealment of material facts; that the appellant had remarried and her new husband should take care of her; and that the Kshs 30,000/= maintenance was excessive as the respondent had other children to take care of.

6. On July 21, 2017 the learned magistrate (Senior Principal Magistrate), having considered the notice to show cause dated August 5, 2016 (because the respondent had failed to comply with the previous orders including the judgment and the arrears having risen to Kshs 608,651/=) and the respondent’s application for review, allowed the respondent’s application for review and ordered the arrears to be dispensed with, thereby dismissing the notice to show cause. She stated as follows:-““I have carefully considered the notice to show cause and the application for review. The issue is whether this court has powers to review the maintenance orders according to the defendant he cannot afford to pay the arrears and that since the minor is in school (boarding) then the expenses concerning school would be little and not very necessary and that the orders were made ex parte.I have read the court record and have noted that the defendant has consistently argued that he cannot afford to raise the Kshs 30,000/- as maintenance.He has stated and plaintiff concurred that he is paying school fees and related expenses consistently and the minor is now in boarding.Considering the above, I allow the application by the defendant and order that he pays school fees and all such related expenses, clothes and provides medical cover. The arrears are therefore dispensed with.”

7. Earlier in the ruling, the court had observed as follows:-“The applicant has argued that interim orders were granted exparte without considering that the plaintiff had moved out of the matrimonial home and remarried and now had other children from the new relationship. He further asserted that the minor was in boarding school and therefore not all expenses were necessary.In reply, the respondent stated that she had not concealed any material facts from the court and that even though she was married the defendant should still play his role as a father. He urged the court not to vary the orders since even High Court had upheld the decision. The defendant urged the court to order that he pays school fees and set aside the arrears.”

8. This is the ruling that led to the present appeal whose grounds were as follows:-“1. The honourable learned magistrate erred in law and in fact by allowing an application for review of an order that was issued pursuant to a consent previously recorded in the matter for which two similar applications for review and an appeal filed thereof had been dismissed.2. That the honourable learned magistrate erred in law and in fact by entertaining and allowing an application made by a party who had persistently been in contempt of court orders and who was not deserving of any audience and or equitable remedy before it.3. That the honourable learned magistrate erred in law and in fact by conferring non-existent jurisdiction upon itself over a matter for which similar applications for review together with appeals filed had been dismissed and no further litigation of a similar nature could be entertained.4. That the honourable learned magistrate erred in law and in fact by allowing an application for review over orders the respondent had persistently breached since March 18, 2014. The same could not be subject to a review under the alleged prevailing new circumstances as the arrears became due when the child had not even joined a boarding school and could not be subject to review due to alleged new status and or circumstances of the appellant.5. That the honourable learned magistrate erred in law and in fact by delivering a ruling that was questionable in itself and had no reasoning behind it.6. That the honourable learned magistrate erred in law and in fact by delivering a ruling not supported by any law, was vague and an abuse and embarrassment to the respectable judicial process in the country;7. That the honourable learned magistrate erred in law and in fact by refusing to consider and or allow the notice to show cause application dated August 15, 2016 even when the respondent had not endeavoured to show any cause; and8. That the honourable learned magistrate erred in law and in fact by reviewing payment of money that was already due in terms of arrears and could not be reviewed backwards.”

9. The appellant asked that the ruling be set aside, the notice of motion dated March 4, 2016 be dismissed with costs and the notice to show cause dated August 15, 2016 be allowed, the respondent be ordered to pay Kshs 713,651/= arrears outstanding as of May 2017 and in default he be committed to civil jail.

10. Mr Sumba appeared for the appellant and Mr Oonge appeared for the respondent. They agreed, and filed written submissions on the appeal. I have considered what each had to say.

11. This being a first appeal, this court is called upon to subject the whole evidence before the trial court to a fresh and exhaustive review and reach its own conclusions thereon, while remembering that it did not have the opportunity to see and hear the parties as they testified (Selle & Another v Associated Motor Boat Co Ltd & Others [1968]EA 123).

12. On the onset, it should be considered that, even if the respondent was coming to court for review on the application dated March 4, 2016 to review the orders of July 27, 2012, the entire suit had proceeded to conclusion and a judgment delivered on April 30, 2015 following the hearing of the appellant and the respondent. The trial court had, among other things, considered the order of July 27, 2012 and reviewed the parties’ respective evidence as to their means. The parties had the opportunity to say everything about themselves and the child. They had the opportunity to testify as to any changed circumstances, including the tendering of any new and material facts. The orders of July 27, 2012 had been considered, and the payment of Kshs 30,000/= per month reduced considerably. The court had, however, affirmed that any arrears that had accrued following the order of July 27, 2012 be fully paid by the respondent. The respondent had, mischievously, not attached the judgment of April 30, 2015 whose effect was to confirm the order of July 27, 2012. The judgment was not appealed against, and it was the decree of the judgment that the appellant sought to execute by the notice to show cause dated August 15, 2016.

13. It should be recalled that, following the order of July 27, 2012, the parties had consented to the satisfaction of the decree therein. There was the consent of October 8, 2012 and the consent of March 18, 2014. In the consent of March 18, 2014 the respondent had acknowledged that the arrears had grown to Kshs 480,000/= and had committed himself to paying the same. In the application for review subject of this appeal, the respondent did not inform the court about this undertaking to pay the arrears and which undertaking he had not honoured. It is trite that an order made with the consent of the parties becomes a contract to be honoured by the parties, and cannot be varied and/or discharged unless it can be shown that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court, or if the consent was obtained without sufficient material facts, or in general for a reason which would enable a court set aside an agreement (Flora N Wasike v Destimo Wamboko [1988]eKLR).

14. It is material that none of the vitiating factors was pleaded or proved in the children court to warrant the setting aside of the orders of July 27, 2012 which had been confirmed by the consents entered into on October 8, 2012 and March 18, 2014.

15. Even assuming, for instance, that the child had since gone to boarding school, it was evident that the respondent’s previous obligation to it had not been met.

16. On the question whether the appellant had since remarried, she categorically denied this in her replying affidavit. The honorable court stated as follows:-“I reply, the respondent stated that she had no concealed any material facts from the court and that even though she was married the defendant should still play his role as a father.”She never admitted that she was married. In any case, the respondent who had claimed that she had remarried had the duty to prove it. He had not.

17. Lastly, it is on record that the respondent had unsuccessfully challenged the orders of July 27, 2012 on appeal.

18. I hope I have said enough to show that the ruling of July 21, 2017 was wholly erroneous and is hereby set aside. Specifically, the application dated March 4, 2016 is dismissed with costs. The order dismissing the notice to show cause dated August 15, 2016 is set aside. The application is reinstated and shall be heard by the trial court on a priority basis as this is a children matter.

19. In those terms, the appeal is allowed with costs.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2022. A.O. MUCHELULEJUDGE