https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10290

KSA v IGO (Civil Appeal E041 of 2025) [2026] KEHC 10290 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 10290 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E041 of 2025 AK Ithuku, J June 23, 2026 Between KSA Appellant and IGO Respondent (Being an Appeal from the Judgment and Decree of Hon. B. Ireri, Senior Principal Magistrate, delivered on 4th February 2025 in Kisumu Children's Case No. E016 of 2024) Judgment A. Introduction 1.This appeal arises from the Judgment and Decree of the Learned Magistrate, Hon. B. Ireri (SPM), delivered on 4th February 2025 in Kisumu Children's Case No. E016 of 2024. The Appellant, who was the Plaintiff in the lower court, being aggrieved by the said decision, lodged this appeal on 18th February 2025. 2.The dispute before the lower court concerned the welfare, custody, maintenance, and access to the two minor children of the parties. The Appellant sought orders for full and actual custody of the minors, an order compelling the Respondent to provide for their basic needs including house rent and school fees, and for the Respondent to be granted access as guided by the court. 3.The Learned Magistrate delivered judgment granting joint legal custody to both parents while actual physical custody vested with the Appellant. The Respondent was granted unlimited access every two alternating weekends and half of all school holidays, and was ordered to pay monthly maintenance of Kshs. 10,000/-. The Appellant was ordered to meet all other needs including shelter, school fees, and medical expenses. 4.The Appellant being dissatisfied, lodged this appeal challenging both the access and maintenance orders on grounds that they were excessive, disruptive to the minors' welfare, and not in their best interests, as well as being unsupported by evidence. B. Background 5.The parties were married on 13th February 2002 under the Marriage Act (Cap. 150, Laws of Kenya). Their union was blessed with two issues: A, aged 11 years, and JG, aged 6 years at the time of filing the suit. The marriage subsequently broke down irretrievably, and the parties separated in 2022 when the Appellant moved out of the matrimonial home with the children. 6.The Appellant filed suit on 28th February 2024, alleging that the Respondent had blatantly refused, neglected, and/or ignored his responsibility to provide for the minors' basic and essential needs both during and after the subsistence of the marriage. The Respondent filed a Defence and witness statement denying the allegations, asserting that he had always strived to provide for his family's basic needs to the best of his capabilities. He further alleged that the Appellant had become hostile after separation, denied him contact with the children, and on one occasion sent the children to Nairobi without his consent. The matter proceeded for hearing, and judgment was delivered on 4th February 2025 as set out above. C. The Appeal 7.The Appellant's Memorandum of Appeal dated 18th February 2025 raised four grounds which can be condensed into two main issues for determination:a)Whether the Learned Magistrate's access orders were excessive, disruptive to the minors' welfare, and not in their best interests.b)Whether the Learned Magistrate erred in setting the maintenance amount at Kshs. 10,000/- per month and failing to order the Respondent to contribute to specific needs such as school fees and medical expenses. D. Submissions Appellant's Submissions 8.The Appellant submitted that the access order granting the Respondent "unlimited access every two alternating weekends every month, and half of the holidays" is legally imprecise and practically unworkable, creating ambiguity that would foster conflict between the parties. Reliance was placed on the case of DMO v TKT & Another [2025] KEHC 3109 (KLR) which emphasized the need for clarity in access orders through prior arrangements. 9.The Appellant further submitted that the minors, being of school-going age at 6 and 11 years, require a consistent routine critical for their educational and emotional development. Spending every other weekend in addition to half of all school holidays, particularly the short April and August holidays, amounts to a significant and potentially disruptive amount of time away from their primary caregiver. It was also submitted that the Learned Magistrate failed to consider that the Respondent had not seen the children for two years and had not provided any financial support during that period, raising concerns about his commitment and the environment he would provide during extended access. 10.On maintenance, the Appellant submitted that the order of Kshs. 10,000/- per month was manifestly low, arbitrary, and not based on any evidence or reasonable assessment of the children's needs. The court, without any basis in evidence, arbitrarily doubled the Respondent's offer of Kshs. 5,000/- to Kshs. 10,000/- without inquiry into his actual earning potential as a musician, his assets, or his means. 11.The Appellant also contended that the Learned Magistrate erred in failing to make specific orders on school fees and medical expenses, unlawfully transferring the entire financial burden to the Appellant contrary to Article 53(1)(e) of the Constitution and Section 32 of the Children Act, 2022, which impose joint and equal parental responsibility on both parents. Respondent's Submissions 12.The Respondent, appearing in person, submitted that the Learned Magistrate properly exercised discretion in accordance with the best interests of the minors. He did not deny his responsibility to support his children but contended that he is a self-employed musician with irregular income, having already paid Kshs. 84,025/- in good faith toward upkeep with outstanding arrears of Kshs. 15,975/-. 13.On access, the Respondent submitted that he does not seek to vary the access orders but rather seeks their enforcement. He alleged that the Appellant has persistently failed to comply with the court order, denying him access on multiple occasions, including through a threatening letter to the school instructing them not to grant him access, and obstructing communication during allocated holiday periods. The Respondent drew the court's attention to the Children's Officer's report, which stated that this office was not able to provide a comprehensive report due to the inability to access the children who are under the custody and care of the Appellant, despite repeated attempts to engage her. The Respondent submitted that this conduct demonstrates a disregard for the authority of the court and suggests a fear of the truth. 14.On the attempted change of the child's name, the Respondent submitted that under the law, both parents share parental responsibility, and a child's name cannot be changed unilaterally without the written consent of both parents or leave of court. The Respondent proposed a structured access mechanism: picking the children up on Friday afternoon and returning them to school on Monday morning based on the ruling that he spends alternate weekends with the minors, to reduce confrontation and provide stability to the children. E. Analysis And Determination Duty of the First Appellate Court 15.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. The principles upon which an appellate court acts in a first appeal are well settled. As stated in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123, the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In Kiruga v Kiruga & Another (1988) KLR 348, the Court of Appeal observed that an appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. Issue One: Whether the Access Orders are Excessive and Not in the Minors' Best Interests 16.The paramount principle governing all matters concerning children is enshrined in Article 53(2) of the Constitution of Kenya, 2010, which provides that a child's best interests are of paramount importance in every matter concerning the child. This principle is given effect by Section 8(1) of the Children Act, 2022, which provides that in all actions concerning children, the best interests of the child shall be the primary consideration. The trial court granted the Respondent " unlimited access of the minors every two alternating weekends every month, and half of the holidays as the parties shall agree on modalities of access." 17.The Appellant challenges this order as being legally imprecise, practically unworkable, and disruptive to the minors' welfare. 18.I have carefully considered the evidence presented before the trial court. The Respondent, in his witness statement and testimony, alleged that the Appellant had become hostile after separation, denied him contact with the children, sent the children to Nairobi without his consent, and frustrated his efforts to maintain a relationship with them. He testified that he had only managed approximately 5 weekends of access and had been denied April, July, and December holiday access for the past four years. It is noteworthy that the Children's Officer's report, which was ordered by this court pursuant to directions, was not able to provide a comprehensive report due to the inability to access the children who are under the custody and care of the Appellant, despite repeated attempts to engage her. This conduct raises serious concerns about the Appellant's commitment to facilitating the children's relationship with their father and her respect for court processes. Section 11(6) of the Children Act, 2022 provides that every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with the parent or parents on a regular basis, unless it is shown to the satisfaction of the court that such contact is not in the best interest of the child. 19.As was held in GO v NKO [2025] KEHC 2972 (KLR), both parents have common responsibilities for the upbringing and development of the child. The stability of having a relationship with both parents can provide security and greater opportunities for children to find their own paths to success. A father involved in a child's life can provide significant social, psychological, and health benefits. 20.However, I agree with the Appellant that the term "unlimited access" is legally imprecise and could create ambiguity. As held in DMO v TKT & Another (supra), prior arrangements as directed by the court are meant to safeguard the child's best interests, and access orders should be specific as to time, duration, and conditions to ensure predictability and stability for the children. 21.The Respondent himself has proposed a more structured mechanism: picking the children up on Friday afternoon and returning them to school on Monday morning. This proposal would provide clarity and reduce confrontation between the parties. However, I find that the Appellant's concern about the access being disruptive to the minors' welfare is not borne out by the evidence. The Respondent is the biological father of the children and has a right to maintain a meaningful relationship with them. The evidence suggests that it is the Appellant who has been frustrating access, not the Respondent who is seeking to exercise his parental rights. 22.On the issue of whether the access during April and August holidays should be limited, I note that the Respondent has had very limited access to his children over the past years. An order granting him half of all school holidays is not unreasonable and is consistent with the principle that both parents should participate in their children's upbringing. 23.Accordingly, while I uphold the trial court's finding on access, I find it appropriate to clarify the order to provide greater specificity and reduce potential for conflict. The order shall be varied as follows:a)The Respondent shall have access to the minors every two alternating weekends from Friday afternoon to Monday morning, with the Respondent to pick the children from school on Friday afternoon and return them to school on Monday morning.b)The Respondent shall have access to the minors for half of all school holidays, with the parties to agree on the specific dates at least 14 days before the commencement of each holiday.c)The Appellant shall facilitate and not obstruct the Respondent's access to the minors.d)If the parties are unable to agree on the specific dates for holiday access, either party is at liberty to apply to the trial court for directions. Issue Two: Whether the Maintenance Order is Excessive and Failure to Order Specific Contributions 24.The trial court ordered the Respondent to pay Kshs. 10,000/- per month for the maintenance of the minors, with the Appellant to meet all other needs including shelter, school fees, and medical expenses. Section 32(1) of the Children Act, 2022 provides that the parents of a child shall have equal parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right of claim against the other in exercise of parental responsibility. Section 31(1) of the Children Act defines parental responsibility as including the duty to maintain the child and in particular to provide basic nutrition, shelter, water and sanitation facilities, clothing, Medicare, and basic education. 25.In HA v LB [2024] KEHC 3933 (KLR), the court held that when making an order for financial provision for maintenance of a child, the court must look at the parameters provided for under Section 94(1) of the Children Act, including the income, earning capacity, property, and other financial resources of the parents and the financial needs, obligations, and responsibilities of each parent. The Respondent testified that he is a self-employed musician who does not earn a fixed monthly salary. However, he acknowledged having paid Kshs. 84,025/- in good faith toward upkeep, with outstanding arrears of Kshs. 15,975/-. He also paid Kshs. 5,000/- directly to the school canteen for the children's benefit, which the Appellant allegedly reversed Kshs. 4,000/- to herself. 26.The Appellant submitted that the maintenance order of Kshs. 10,000/- per month is manifestly low and arbitrary. However, I note that the Appellant is a medical practitioner working at Kisumu County Government, and she sought orders that the Respondent provide for the minors' basic needs including house rent and school fees. The trial court's order that the Appellant shall meet "all other needs of the minors, shelter, school fees and all related expenses plus medical" effectively placed the entire financial burden on the Appellant, contrary to the principle of shared parental responsibility. 27.As was held in AOO v BOO (Civil Appeal E077 of 2023) [2025] KEHC 6209 (KLR), "Children matters or needs should not be used to punish one parent at the comfort of another parent... To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty bound to contribute towards a child's welfare." 28.It is a fundamental principle of children's law that both parents have a duty to support their children according to their respective means. Neither parent should be allowed to abdicate this responsibility. The trial court's order that the Respondent contributes only Kshs. 10,000/- per month for the maintenance of two children, while the Appellant bears all other expenses including school fees and medical costs, is not consistent with the principle of shared parental responsibility and does not adequately reflect the financial needs of the children. 29.However, this court must also take into account the Respondent's earning capacity. The Respondent is a self-employed musician with irregular income. The court cannot impose a maintenance order that the Respondent is unable to fulfill, as this would ultimately be detrimental to the children's welfare. In SHM v HMD [2025] KEHC 12370 (KLR), the court emphasized that maintenance orders must take into account the financial capabilities of the paying parent and should not render them financially destitute. 30.In the circumstances, I find that the trial court erred in failing to make specific orders on school fees and medical expenses, and in placing the entire financial burden on the Appellant. The order shall be varied as follows:a)The Respondent shall pay monthly maintenance of Kshs. 10,000/- per month for the upkeep of the minors, payable on or before the 5th day of each month.b)The Respondent shall contribute 30% of the school fees and school-related expenses for the minors.c)The Respondent shall contribute 30% of the medical expenses for the minors, provided that he is given prior notice of any medical expenses and the opportunity to pay his share directly.d)The Appellant shall continue to provide shelter for the minors.48.On the issue of the Respondent's arrears, I note that he has acknowledged paying Kshs. 84,025/- in good faith toward upkeep, with outstanding arrears of Kshs. 15,975/-. He also paid Kshs. 5,000/- directly to the school canteen, of which the Appellant allegedly reversed Kshs. 4,000/- to herself. The Respondent is given credit for the Kshs. 5,000/- paid to the school canteen. The issue of reversal shall be addressed by the trial court in enforcement proceedings. 31.I note the disturbing conduct of the Appellant in frustrating the Children's Officer's investigation. The failure to allow the Children's Officer access to the children undermines the court's ability to determine the best interests of the children and amounts to a disregard for the authority of this court. 32.I take notice of the Appellant's refusal to cooperate with the Children's Officer and draw an adverse inference that the blocked investigation would not have supported the Appellant's case, and that her actions are consistent with a desire to hide the truth from the court. F. Conclusion And Orders 33.In conclusion, this appeal partially succeeds. The trial court's judgment is upheld in principle but varied in certain respects to ensure clarity and to properly balance the rights and responsibilities of both parents in accordance with the best interests of the children. 34.Accordingly, I make the following orders:a)The appeal is partially allowed.b)The Judgment and Decree of the Honourable B. Ireri delivered on 4th February 2025 is hereby varied as follows:i)Legal custody of the minors is granted to both parents, while actual physical custody shall vest with the Appellant.ii)The Respondent shall have access to the minors every two alternating weekends from Friday afternoon to Monday morning, with the Respondent to pick the children from school on Friday afternoon and return them to school on Monday morning.iii)The Respondent shall have access to the minors for half of all school holidays, with the parties to agree on the specific dates at least 14 days before the commencement of each holiday. For further clarity the respondent to have access the first half of the holiday.iv)The Appellant shall facilitate and shall not obstruct the Respondent's access to the minors.v)The Respondent shall pay monthly maintenance of Kshs. 10,000/- per month for the upkeep of the minors, payable on or before the 5th day of each month.vi)The Respondent shall contribute 30% of the school fees and school-related expenses for the minors.vii)The Respondent shall contribute 30% of the medical expenses for the minors, provided that he is given prior notice of any medical expenses and the opportunity to pay his share directly.viii)The Appellant shall continue to provide shelter for the minors.ix)The parties are granted leave to apply to the trial court for variation of the maintenance order upon demonstration of a significant change in their respective financial circumstances.x)The Appellant is restrained from changing the name of any of the minor children without the written consent of the Respondent or leave of the trial court.c)If the parties are unable to agree on the specific dates for holiday access, either party is at liberty to apply to the trial court for directions.d)The trial court is hereby directed to monitor compliance with these orders and to take appropriate enforcement measures in accordance with the law.e)Each party shall bear their own costs of this appeal.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 23RD DAY OF JUNE 2026..................................................HON. ALEX K. ITHUKUJUDGEIn the presence of:Ms. Awow for the Appellant.Annastacia - Court Assistant