[2020] KEHC 6982 (KLR)
The court found that, notwithstanding the pending appeal and the breakdown of the relationship between the parties, the best interests of the children must be prioritized. Section 90 of the Children’s Act imposes a joint responsibility on both parents to maintain their children. The court determined that interim...
Source-derived case information.
- Citation
- [2020] KEHC 6982 (KLR)
- Parties
- Appellant: JA; Respondent: RNW (on behalf of CWO & VX, minors)
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Application for Maintenance Orders Pending Appeal
- Outcome
- Interim maintenance orders granted pending appeal; responsibilities for maintenance apportioned between the parties.
- Judges
- HK Chemitei
- Legal Topics
- Child Custody, Child Maintenance, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JA
Appellant
RNW (on behalf of CWO & VX, minors)
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Application for Maintenance Orders Pending Appeal
Legal Issues
- 1 Whether interim maintenance orders should be granted for the benefit of the minors pending determination of the appeal.
- 2 Whether both parents have a joint responsibility to maintain the children during the pendency of the appeal.
- 3 How the best interests of the children should be protected while litigation is ongoing.
Ratio Decidendi
The court found that, notwithstanding the pending appeal and the breakdown of the relationship between the parties, the best interests of the children must be prioritized. Section 90 of the Children’s Act imposes a joint responsibility on both parents to maintain their children. The court determined that interim arrangements should be made to ensure the welfare of the minors is not compromised during the litigation. Accordingly, the court apportioned specific responsibilities to each parent: the respondent to provide food, clothing, and shelter, and the appellant to provide school fees, related expenses, and medical care. This arrangement ensures the children’s needs are met without...
Court Disposition
Interim maintenance orders granted pending appeal; responsibilities for maintenance apportioned between the parties.
Orders
- The respondent RNW shall have custody of the minors with the appellant having unlimited access to them.
- The appellant shall provide school fees and related or incidental expenses for the minors.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL APPEAL NO.11 OF 2019
JA.............................................APPELLANT/RESPONDENT
VERSES
RNW (ON BEHALF OF
CWO & VX (MINORS).........APPLICANT/RESPONDENT
RULING
1. The Applicant and the Respondent are husband and wife respectively. They are blessed with two children CWO and VX both are minors. The Respondent filed suit at the lower court seeking inter alia care and custody of the children as well as maintenance from the Appellant /Respondent.
2. When the matter came up for hearing the Respondent raised a preliminary objection on a point of law which was disallowed and he preferred an appeal against the same.
3. The Applicant on the other hand filed the motion dated 22nd May 2019 in which it sought the maintenance orders against the Respondent which included school fees, clothing and general provisions including rent of kshs 8,000 per month. She also prayed that the appeal be heard on priority basis.
4. In her supporting affidavit she argued that there was no order stopping the respondent from carrying out his parental responsibility while awaiting the appeal.
5. The respondent in his replying affidavit has enumerated ills committed by the Applicant including running away from the matrimonial home and taking the children out of the school without his knowledge or consent. He further said that parental responsibility runs both ways and the court cannot condemn him to carry out the parental responsibility alone.
6. The court has perused the affidavits as well as the submissions by the applicant on record. The reality is that the relationship between the two seemed to have broken down and as usual the sufferers are the children.
7. It must be noted that the appeal is still pending and the issues raised therein are not for this court to discuss now. The rights of the minors nonetheless supersede any issues between the two protagonist. While the litigation is ongoing the interest of the children ought to be taken care of. Section 90 of the Children’s Act is very clear on this. It states;
“Unless the court otherwise directs, and subject to any financial contribution ordered to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child—
(a) Where the parents of a child were married to each other at the time of the birth of the child and are both living, the duty to maintain a child shall be their joint responsibility;
(d) where a residence order is made in favour of more than one person, it shall be the duty of those persons to jointly maintain the child;”
8. In the premises, and so as not to prejudice the appeal and to ensure that the children are generally maintained pending appeal, it is hereby ordered that;
(A) The Respondent RNW shall have the custody of the minors with the Appellant having unlimited access to them.
(B) The Appellant shall provide school fees and related or incidental expenses for the minors.
(C) The Appellant shall provide medical care for the children.
(D) The Respondent shall provide food, clothing and shelter for the minors.
(E) Costs shall be in the cause.
Dated, signed and delivered in open court at Kitale this 8th day of April 2020.
_________________
H. K. CHEMITEI
JUDGE
8/4/2020