[2022] KEHC 11302 (KLR)

KMN v EG (Family Appeal E003 of 2021) [2022] KEHC 11302 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11302 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal E003 of 2021

JN Onyiego, J

July 15, 2022

Between

KMN

Appellant

and

EG

Respondent

(Being an appeal from the Ruling of the Principal magistrate, V J Yator delivered on 16th December 2020 in the Chief Magistrate’sl Court at Tononoka Children case No 291 of 2014)

Judgment

1. Through a plaint dated 7th August 2014, EG (hereinafter the plaintiff/respondent) filed Tononoka children’s court case N0. 291 of 2014 against the respondent KMN (hereafter the defendant/appellant) seeking orders as hereunder.a.An order of custody, care and control of FKN to the plaintiffb.An order that the defendant has parental responsibility over the issue hereinc.A maintenance order of Ksh 85,000d.An order for limited, supervised access.e.Costs of the suitf.Any other relief as the court may deem just and fit.

2. In response, the appellant/ defendant entered appearance on 10th September, 2014 and subsequently filed defence and counter claim on 29th September 2012. In his counter claim, the defendant sought orders as follows;a.Custody, care and control to be vested in the defendant.b.Plaintiff be given reasonable access.c.An order compelling the plaintiff to refund a sum of Ksh 100,000 and jewellery taken away from the matrimonial home.d.Refund of Ksh 1,000,000 being traveling expense and costs of staying in Mombasa while visiting the plaintiffe.Costs of the suit.f.Any other relief the court may deem fit.

3. After considering the evidence by both parties, and having considered that the child the subject of the proceedings was a female born on 1st April 2014 and therefore a child of tender age, the court granted actual custody to the mother (plaintiff /respondent) with unlimited access to the father (appellant)whenever he was in Mombasa from Saturday 9. 00am to Sunday 5. 00pm. The court further directed for the defendant to be having the child for all the first half and the plaintiff the second half of all school holidays. Joint legal custody was awarded to both parents on account that they were biological children.

4. On the question of parental responsibility, the court found both parents to have equal responsibility; Aware of the fact that both of them were working, the court directed that; the defendant to pay school fees directly to the school and the plaintiff/ respondent to cater for school rated expenses; both parents to cater for the madrassa fees during the period they are in custody of the child; the defendant to continue catering for the medical needs of the child; the plaintiff to cater for shelter and utility bills; the defendant to continue providing for the monthly maintenance of Kshs 11,000 payable on or before 5th of every month; clothing needs of the child to be shared by both the plaintiff and the defendant; no orders as to costs and either party shall be at liberty to apply.

5. Subsequently, vide a notice of motion dated 3rd August, 2020, the defendant /appellant moved the trial court for orders that;a.This application be certified urgent and service of the same be dispensed with in the first instanceb.The applicant to be given physical custody of the minor until school re- open and the respondent be granted access to the minor through electronic means (whatsapp, zoom skype etc) pending the hearing and determination of this application interpartesc.In the event of non-compliance by the respondent with the orders in (b) above, the OCS Mombasa Central police station be directed to implement / execute the orders.d.Upon reopening of schools, custody of the minor be varied as follows; Applicant to have physical custody of the minor entirely during the holiday period; Respondent to have physical custody of the minor entirely during school days;e.Each party to bear the cost of picking and or collecting the minor at the time of assuming custody as stated in b and c above.f.The chairman or a representative of the Nasserpuria Memon Jamat in Nairobi or Mombasa be ordered to assist and or oversee the handing over of the minor by the applicant and respondent to either party respectivelyg.Each party to bear the costs of maintaining the minor whenever the minor is in their custodyh.In the event of non-compliance by the applicant or respondent with the orders above, the OCS of Langata police station or Mombasa Central police station, respectively, be at liberty to implement and execute the said orders.

6. The application was anchored on grounds that he had been denied access to the minor by the respondent contrary to the court order of 5th June 2018; the order granting him access to the minor while in Mombasa was discriminatory and unfair due to long distance yet he was staying and working in Nairobi; due to covid-19, his salary had been reduced hence unable to pay the kshs 11,000 monthly expenses as directed; the respondent /plaintiff had neglected the minor by not utilizing the maintenance fees paid to her ; the respondent /defendant was abusive and hostile to him whenever he requested to pick the minor and that he has been denied electronic access to the minor.

7. In her response, the respondent /plaintiff filed a replying affidavit sworn on 13th August, 2020 denying every allegation levelled against her. She claimed that she has never denied the defendant/appellant access to the minor save for the time corona was at the pick and there was a lock down. In respect to maintenance and neglect of the minor, she responded that it was the defendant who was in breach as he was not consistent in remitting the monthly maintenance expenses as directed.

8. Basically, the appellant/ defendant in submission urged the court to review the impugned orders pursuant to section 117 of the children Act by directing that; either parent has custody of the child the entire school term and school holidays with the other parent having unlimited access and that the defendant be allowed unlimited electronic access. He also raised concern over the respondent’s failure to supply school reports whenever requested and that she always released the baby without personal effect like clothes, tooth brush and panties.

9. Touching on maintenance, the defendant/appellant submitted that from the bank statements supplied to him, it was evident that the respondent was not utilizing the maintenance amount given by him hence saving the same for her own benefit. In his view, the amount saved should be utilized to pay school fees for the child now that he was unable to raise school fees due to Covid.

10. On her part, the plaintiff/respondent submitted that the reason adduced for review of the orders do not meet the threshold under Order 45 of the Civil Procedure Rules. That the grounds cited would only be argued on appeal and not review hence the court orders should be maintained.

11. After considering the application, the court delivered its ruling on 16th December 2020 thus holding that section 11 of the Children Act empowered her to review a court order from time to time. On the issue of custody, the court found that as a general rule, a child of tender age should stay with the mother unless there were exceptional circumstances hence declined to vary or review the orders. The court further observed that there was animosity between the two parties and urged them to maintain good communication in the interest of the minor so as to avoid acrimony on small issues like report forms, books and clothes for the child.

12. On access, the court acknowledged that covid had changed the style and manner in which things were being done. Accordingly, the court reviewed the order on access by directing that; for the short holidays; April and August holiday as per the new school calendar, the defendant gets three quarters of the same and the long holiday of November and December the same be shared equally; the defendant to have the child immediately school close and the child to go back to the mother the last quarter of the holiday for the two shot holidays; that during that period , the parent with custody to facilitate communication by electronic means including video calls which should be unlimited but reasonable.

13. On the aspect of the chairman or representative of the Nasserpuria Memon Jamat in Nairobi or Mombasa to assist or oversee the handing over of the baby to either party, the court declined as it found it unnecessary and not in the best interest of the child. On the issue of picking costs, the court directed each party to bear his or her own costs whenever his or her time came up for taking over custody.

14. Concerning review of the maintenance expenses, the court was of the view that due to inflation and ever rising costs of living, the amount awarded was sufficient. On utilization of maintenance funds lying in the child’s account, the trial court found that the mode and style of utilizing the money was the sole responsibility of the mother as long as the child was comfortable.

15. Aggrieved by the above orders, the defendant/appellant moved to this court vide a memorandum of appeal dated 31st March, 2021 and filed on 26th, 2021 citing 4 grounds as follows;a.That the trial magistrate erred in law and in fact by holding that the custody of the minor should remain with the respondent against the weight of the evidence presented by the appellant herein.b.That the trial magistrate erred in law and in fact by declining to review the terms of access to grant the appellant physical access to the minor on weekends during school days.c.That the trial magistrate erred in law and in fact by retaining the terms of maintenance contrary to the weight of evidence presented by the appellant herein.

16. When the matter came up for directions, parties agreed to file submissions in disposition of the appeal. Through the firm of Batala and Kakinga advocates the appellant filed his submissions on 8th June, 2021. Counsel urged the appeal on four grounds namely;a.Whether the learned magistrate applied the principles of law relating to custody.b.Whether the learned magistrate applied principles of law relating to accessc.Whether the learned magistrate applied principles of law relating to maintenanced.Whether the decision by the trial magistrate was unconstitutional and not in the best interests of the child.

17. On the issue of custody, counsel submitted that there were exceptional circumstances to warrant variation of custody orders as the respondent was not fit to have actual custody of the minor. That this was evident from the respondent’s maintenance funds remitted by the appellant but remains unutilized. Further, that the respondent has no quality time with the baby during holidays. It was further submitted that the court did not seek and consider the minor’s opinion before making a custody order.

18. On access, counsel submitted that the learned magistrate did not grant orders that have optimal effect hence the demand that the appellant does access the child whenever in Mombasa. Learned counsel contended that as per the review order, the appellant was stripped off entirely access rights during school days hence the need for review. Counsel urged the court to grant custody of the minor to the appellant throughout the holidays without sharing.

19. Concerning maintenance, counsel contended that the court did not consider Article 53 (1) of the Constitution and section 94 (1) of the children Act concerning parental responsibility when she refused to review the maintenance amount of Ksh 11,000 thus ignoring the appellant’s financial challenges yet the amount remitted was not being utilized for the benefit of the baby. In conclusion, counsel submitted that since both parents are salaried, each party should incur maintenance expenses for the period the minor is with him or her. In support of his submission, counsel placed reliance on the case of PKM v ANM [2020]eKLR

20. Through the firm of Khalid Salim Advocates, the respondent filed her submissions on 13th July, 2022. Learned counsel submitted on two issues namely;a.Whether the learned trial magistrate failed to satisfactorily vary and or review the terms of access and custody as spelt out in the judgmentb.Whether the learned magistrate erred in law and in fact by retaining the terms of maintenance

21. Regarding the issue of custody, counsel submitted that the grounds cited for review of custody orders does not meet the threshold set out in the case of HKM v DMA [2015] e KLR Githunguri v Githunguri and DK v JKN [2011] e KLR where both courts held that as a matter of general rule custody of a child of tender age should be awarded to the mother unless there exists exceptional circumstances.

22. Learned counsel submitted that it is not practically possible to grant custody of the baby to the appellant during school days considering that the baby is staying in Mombasa hence such order if granted will destabilize the baby’s studies. In conclusion, learned counsel submitted that the appellant had not met the conditions set out under Order 45 of the civil procedure Rules.

23. On the second issue, counsel submitted that the trial court properly analyzed the grounds for review and arrived at the correct conclusion after due exercise of its discretion under Section 99 of the Children Act which empowers a court to vary or modify terms of financial provision for a child’s upkeep. That the amount of kshs 11,000 maintenance granted the year 2011 when the child was six years old cannot adequately cater for her expenses currently owing to the rise of the cost of living. Lastly, counsel submitted that the appellant did not attach any proof that his salary was deducted or had reduced due to corona pandemic.

Determination 24. I have considered the record of appeal herein, grounds of appeal and oral submissions by both parties. Issues that arise for determination are;a.Whether the trial court properly declined to review actual custody orders granted in its judgment.b.Whether the reviewed access orders in respect to the baby by both parents is in the best interests of the minor.c.Whether the monthly maintenance expense of kshs 11,000 by the appellant ought to have been reviewed.

25. Vide its judgment delivered on 26th February, 2018 the trial court granted joint legal custody to both parents and actual custody to the mother/ respondent) owing to her gender (female) and tender age (then 6 years).

26. The court however granted unlimited access to the father (Appellant) during the school period from Saturday 9. 00 am to Sunday 5. 00pm. The father (appellant) was also to have the child the first half of all school holidays and the plaintiff 2nd half.

27. From the record, there was no appeal lodged against the judgment until 3rd August, 2020 when the review application was made almost 2 ½ years after delivery of judgment. The review application is expressed to have been brought under Sections 4(2), 24, 25 (1) (a) (2) ,81, 84(1) and 88 of the Children Act.

28. Applications for review in civil suits are ordinarily filed under order 45 of the civil procured rules. However, in children matters, further powers for review are donated to the children court under section 99 and 117 of the Children Act. Under order 45 of the Civil procedure rules, a party seeking review of a court order is duty bound to establish that; there is discovery of a new matter or evidence which was not within his knowledge when the order or decree sought to be reviewed was made after due diligence; existence of mistake or error apparent on the face of the record or for any other sufficient cause. These principles were succinctly applied in the case of Francis Njoroge v Stephen Maina Kamore [2018] e KLR

29. Section 99 of the Children Act does bestow powers upon a children court to impose conditions and vary orders imposed as it may deem fit. For avoidance of doubt that provision does provide as follows;“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 amountpayable 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.”

30. Section 117 of the Children Act also goes to provide that;“The court may from time to time review, vary, suspend or discharge any order made under this Part or revive an order after it has been suspended or discharged””.

31. From the wording of the two provisions, the court has wide discretionary powers to vary any order/orders made if the interest of justice demands. It is trite that unless found that the trial court applied a wrong legal principle or took into consideration irrelevant or extraneous matter in arriving at its conclusion or finding, an appellate court should exercise restraint not to interfere. See Mbogo and another V Shah(1968) EAP where the court stated that;“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been an injustice” .

32. In respect to the issue of custody, the court in its judgment expressed itself adequately on the reasons for awarding actual custody to the mother with unlimited access to the father subject to clearly spelt out conditions. What has changed to warrant review of actual custody orders? As correctly sated by the trial court, there was no proof of new evidence or discovery of new matter nor mistake or error apparent on the face of the record.

33. It is trite law that as a general rule, actual custody of a child of tender age should be awarded to the mother unless there exists exceptional circumstances to warrant orders to the contrary. See Githunguri v Githunguri (supra) and KMM v JIL (2016) and Sospeter Ojaamong v Lynette Omondi Otieno Civil Appeal No. 176/2006 and the case of HGG v YP [2017] e KLR where the court held that;“Therefore, for a court of law to depart from the general rule on custody of children of tender years, there must be exceptional circumstances which warrant the mother to be denied custody of the children of tender age. Such factors should be ones which affect the welfare and best interests of the child and may include but not limited to the mother’s mental instability or insanity; disgraceful conduct say; her immoral behavior, drunkenness habit; abandoning the children; cruelty to children and the company she keeps”

34. In the instant case, the reasons advanced for variation of the actual custody order is neglect of the child by the respondent who has no time for the baby during holiday and also failure to utilize maintenance funds remitted to her by the appellant.

35. It was admitted that both parties are working. Should the respondent stop working to stay at home during holidays to stay with the baby? I do not think so. If anything, the appellant was the one ordered to stay longer with the baby during holidays hence the baby is in safe hands. I do not think this is a good ground to infer neglect.

36. As to the second ground on non-utilization of funds deposited in the child’s account for maintenance, that is not an act of neglect. As long as the baby is taken care of through other sources thus substituting the maintenance funds which is still intact in the minor’s account, the appellant should not be bothered. I agree with the trial court that as long as the minor is comfortable, utilization of the maintenance fund is a matter of personal organization and finance management by the respondent hence not an exceptional circumstance to warrant review of custody orders.

37. In my view, the appellant is attempting to use the review provision to sneak in an appeal challenging the original judgment which is too late. See Pancras T. Swai v Kenya Breweries Ltd (2014) e KLAR where the court stated that;“...a dangerous precedent would be set in lower court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus officio and have no appellate jurisdiction”

38. As to the question of the respondent not giving the minor a tooth brush, panties and clothing when going to stay with the father, those are trivial matters. Parents should sort out such issues without exposing their nakedness.

39. In view of the wisdom drawn from the above decisions, it is my finding that the prayer for review of the actual custody order was properly rejected as no good grounds were advanced to warrant such variation hence the trial court cannot be faulted for upholding the law

40. Concerning the issue of access, the court in its judgment was clear that the appellant was to have unlimited access during school days from Saturday at 9. 00am to 5. 00pm and half holiday period for each. My understanding of the trial court’s direction and orders of the impugned ruling delivered on 16th December 2020 is that, the court only reviewed access during holidays as per the new school calendar dictated by corona. The trial court did not review access of the minor during school days which in my view remains and correctly so as per the judgment.

41. For the appellant to access the child for the entire school days’ period is not practically possible as the child is based in Mombasa and the appellant in Nairobi. I do find the review orders regarding access during school holidays until the school calendar stabilizes tenable. However, I must emphasize that the access rights over the weekends on Saturday from 9. 00am to 5. 00pm on Sunday whenever the appellant is in Mombasa still remains and the respondent should not impede such access rights. As to review of custody of the baby during holidays, that is a substantive ground warranting an appeal hence not a ground for review.

42. Touching on review of maintenance expenses from kshs11,000 downwards on grounds of financial challenges and reduction on salary due to covid, no evidence was tendered by way of affidavit of means or pay slip to substantiate such reduced income. Further, the cost of living has since increased hence the intended purpose for maintenance cannot be achieved due to inflation. Regarding non utilization of funds which according to the appellant is lying in the minor’s account, the same is anchored on quick sand. As long as the baby is comfortable, the source of funds for maintenance after sparing use of the child’s maintenance amount is inconsequential. In the circumstances, the court did properly hold that review of the maintenance orders is not in the best interests of the child.

43. If the appellant’s contention is that maintenance should be equal or each parent spends on the baby for the period the baby is with either parent, then that is a ground for appeal against the judgment and not an issue for review.

44. Having held as above, it is my finding that the appeal herein is unmeritorious and not sustainable in the best interest of the child and therefore dismissed. I would however urge both parties not to use the baby as a tool to settle personal scores. The respondent is also urged to let the father access the baby as directed by the court for full bonding and enhancement of fatherly love which the mother cannot offer by nature. Regarding costs, each party shall bear own costs. Original file to be returned to the trial court for further implementation of its orders.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF JULY 2022. ..........................................J N ONYIEGOJUDGE