[2022] KEHC 12065 (KLR)

LC v NC (Civil Appeal 14 of 2020) [2022] KEHC 12065 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12065 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 14 of 2020

RL Korir, J

July 13, 2022

Between

LC

Appellant

and

NC

Respondent

(Being an Appeal from the Judgment of Hon. Omwange J. Senior Resident Magistrate in Children’s Cause Number 22 of 2019 - Bomet delivered on 15th September 2020)

Judgment

1. The parties in this case are feuding over maintenance of their issue, one DC. Judgment in the trial court was delivered on 15th September 2020 where the Appellant was ordered to pay Kshs. 8,500/= per year for school fees, Kshs. 2,500/= per year for clothing, Kshs. 250/= per month for medical attention, Kshs. 750/= per month for electricity and Kshs. 2500/= per month for food.

2. The Appellant thereafter filed an Application dated 9th October 2020 where he sought a stay of execution of the aforementioned Judgment. On 3rd November 2020, the parties agreed to withdraw the Application by consent and to expeditiously proceed with the Appeal.

3. Being dissatisfied with the Judgment of the trial court, the Appellant vide a Memorandum of Appeal dated 9th October 2020 appealed to this Court on the following grounds:-I.That, the learned trial Magistrate erred in law by failing to make a valid Judgment.II.That, the learned trial Magistrate erred in law and in fact by failing to consider all the issues raised by the Appellant when arguing his application.III.That, the learned trial Magistrate erred in law and in fact by directing the Appellant to pay an additional Kshs. 8,500/= per month towards school fees, Kshs. 2,500/= per year towards clothes, Kshs. 250/= per month for medical attention, Kshs. 750/= per month for electricity and Kshs. 2,500/= per month for food.IV.That, the learned trial Magistrate erred in law and in fact in holding that the Appellant had not proved his case on the balance of probabilities.V.That the learned trial Magistrate erred in fact and law in failing to use the documents presented in support of the case.

4. The Appellant therefore prayed that the Judgment delivered on 15th September 2020 be quashed and/or set aside with costs to himself.

5. Being the first appellate court, this Court has a duty to re-evaluate the evidence on record. In the case of Selle & AnothervAssociated Motor Boat Co. Ltdandothers (1968) E.A 123, the Court of Appeal pronounced itself as follows: -“…..this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court . . . is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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. . . .”

The Appellant’s (defendant) Case. 6. The Appellant stated that they had cohabited with the Respondent and that after two weeks of their marriage, the Respondent and his mother had conflicts. That the matter was reported to the Assistant Chief who then informed the village elders to conduct a meeting regarding the conflict. It was the Appellant’s further case that the outcome of the meeting was that the Respondent was to be given Kshs. 30,000/= upon which she would leave the matrimonial home.

7. It was the Appellant’s case that upon leaving their matrimonial home, the Respondent informed him that she was pregnant. That he took care of her until she gave birth. The Appellant further stated that he promised to support her and the child if she came back and stayed peacefully in their matrimonial home.

8. The Appellant averred that the Respondent lied that she would come home after completing her ECDE course. That instead, she went ahead and reported to the Children’s office in Sotik that he had refused to maintain the child.

9. It was the Appellant’s contention that he took care of the child and the Respondent when they were at their matrimonial home and that the only problem was the conflict between his parents and the Respondent.

10. The Appellant stated that he was a farmer and the little he earned was not enough to maintain his family. That if the Respondent was ready to return home, they could struggle to assist each other because the responsibility was for both parents.

The Appellant’s Submissions. 11. The Appellant submitted that the trial court gave a one-sided verdict without considering that the issue of maintenance was the responsibility of both parents. That the Respondent did not produce any documents to show that she required Kshs. 8,500/= per year for school fees, Kshs. 2,500/= per year for clothing, Kshs. 250/= per month for medical care and Kshs. 750 per month for electricity. It was his further case that the court did not give visitation rights in its Judgment.

12. It was the Appellant’s submission that the responsibilities of the minor were not shared equally. That the court gave what the Respondent asked for in her prayers. He relied on the case of DKK v WK & GK (2020) eKLR.

The Respondent’s (plaintiff) Case 13. It was the Respondent’s case that she was married to the Appellant sometime in the year 2014 and they were blessed with one issue – DC. That after a while, the Appellant and his mother chased her out of their matrimonial home. Further, it was her case that after she was chased, the village elders held a reconciliatory meeting where the Appellant agreed to take care of the child.

14. The Respondent stated that she no longer lived with the Appellant and that she had legal care and custody of the child. That she had struggled to maintain the child due to financial difficulties. It was her case that the Appellant treated her with contempt and disrespect whenever she tried to ask for support.

15. The Respondent opined that the Appellant had been summoned to the Children’s office in Sotik to discuss the welfare of the child but failed to make good the Respondent’s claim. It was her further case that she was a part time ECD teacher and her income was not sufficient to care for the child. That the Appellant was a dairy and horticultural farmer and he was capable of contributing towards the maintenance of the child.

16. The Respondent prayed for Kshs. 5000/= per month for food, Kshs. 16,500/= per year for school fees, Kshs. 500/= per month for medical, Kshs. 5,000/= per year for clothing and Kshs. 1,500/= per month for electricity.

The Respondent’s Submissions. 17. The Respondent submitted that the Judgment provided that the Appellant pays Kshs 8,500/= per year for the child and not per month as alleged in ground 3 of the Memorandum of Appeal. That the court was fair to the Appellant as the amount sought was half of the contribution. It was the Respondent’s further submission that the court revises the amount upwards bearing in mind that there were additional expenses of uniforms, books, stationary and transport for the child.

18. It was the Respondent’s submission that the court directed that the parties provide equally for the needs of the child. She relied on the provisions of Article 53 (1), (c), (e), (2) and Article 23 (2), (2) of the Constitution of Kenya 2010. It was her further submission that the Appellant could not purport to provide for the child only within their matrimonial home. That parental responsibility was mandatory and not discretionary. She relied on the cases of MAA v ABS (2018) eKLR and SM v JM & FM (2015) eKLR.

19. The Respondent submitted that the Appellant was a horticultural farmer and was in a position to provide for the child as ordered by the trial court. That the interests of the parents came secondary to the interests of the child.

Analysis and Determination. Issues 20. I have considered the Record of Appeal dated 2nd November 2020, the Appellant’s written Submissions dated 17th March 2021 and the Respondent’s written Submissions dated 3rd December 2020. The only issue for my determination is whether the parental responsibility apportioned by the trial court in its judgment dated 15th September 2020 was fair and just to both parties.

21. From the Record, the Appellant and the Respondent testified that they lived as husband and wife and both confirmed that they were blessed with an issue namely DC. The paternity of DC is therefore not in dispute.

22. Section 23 of the Children’s Act No. 8 of 2001 (Cap 141) defines what parental responsibility is. This provision is now clearly amplified in the Amendments to the Children’s Act of 2022 under section 31. It states:-1. In this Act, “parental responsibility” means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.2. The duties referred to in subsection (1) include, but are not limited to —a)the duty to maintain the child and, in particular to provide the child with—(i)basic nutrition;(ii)shelter;(iii)water and sanitation facilities(iv)clothing(v)medical care including immunisation; andvi)basic education; andvii)General guidance, social conduct and moral values.

23. Section 24 (now section 32 of the Children’s Act 2022) states as follows:Equal Parental Responsibility:1. “Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside of wedlock.2. A person who has parental responsibility over a child shall at all times have the duties, powers and responsibilities as are prescribed in this Act or any other written law.3. …….”

24. This therefore means that parents have shared responsibility towards maintaining their child irrespective of their marital status. Additionally, the wording of the Act is very clear that no parent shall exercise superior claim or right against the other. In the persuasive case of PKM v ANM (2020) eKLR Aroni J. stated that: -“In my view therefore one need not go further to look at what parents need to do for a child and to what extent. In this instance the parties have joint responsibility towards their son and no one is superior to the other.”

25. The above position is grounded in Article 53 (1) (e) of the Constitution which provides that every child has a right to parental care and protection, including equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

26. On the court’s power to make and/or issue maintenance orders, Section 98, now Section 118 of the Children’s Act 2022 states that: -“A court may make an order and to give directions regarding any aspect of the maintenance of a child, including matters relating to the provision of education, medical care, housing and clothing for the child; and in that behalf, make an order for financial provisions for the child”.

27. The Respondent stated that she was struggling to maintain her child and approached the trial court for maintenance from the Appellant. She sought Kshs. 5,000 per month for food, Kshs. 16,500/= per year for school fees, Kshs. 500/= per month for medical care, Kshs. 5,000/= per year for clothing and Kshs. 1,500/= per month for electricity. The Respondent produced receipts that indicated that she had paid school fees for DC on diverse dated for the year 2019. The same were marked as P.Exh 3. She also produced the fee structure for the year 2019 and the same was marked as P.Exh. 4. Upon cross examination, the Respondent confirmed that DC was in PP1 and that the school fees for one term was Kshs. 5,500/=.

28. Both the Appellant and the Respondent have not stated their financial capacities neither have they filed affidavits of means. They have only stated that they do not have sufficient income. It was the Respondent’s testimony during cross-examination in trial court that she used to teach ECD but her services were terminated. The Appellant in his statement dated 24th June 2019 stated that whatever he was earning was too little to even support his own family and therefore he would only manage to provide for the child if the Respondent moved back home with him so that they could assist each other.

29. The above notwithstanding, it is the duty of the trial court to assess what each parent ought to contribute. I associate myself with the sentiments of Riechi J in the case of SLM v DAM (2018) eKLR where he held that: -“The assessment of the award of contributions by each parent to the upkeep of the children is at the discretion of the trial court who had the opportunity of hearing the evidence and considered the relevant material placed before her. An appellate court can only interfere with the amount awarded if it is demonstrated that the trial magistrate failed to consider relevant factors or considered irrelevant factors or that the assessment is so low as to show an erroneous approach to assessment of upkeep expenses”.

30. The joint responsibility of the parents was clearly expressed in the case of CIN v JNN (2014) eKLR, where Kimaru J stated thus: -“It will not do (for a party) to say that she has an uncertain source of income and therefore the responsibly of maintaining the children should be borne by the adverse party. The (said) party must establish to the satisfaction of the court that she has also made an effort to provide for the upkeep of the children”.

31. The Appellant stated that he gave the Respondent Kshs. 30,000/= so that she could leave the matrimonial home. The inference that this Court makes was that the Kshs. 30,000/= was paid to the Respondent so that she could stop being troublesome. There is no evidence on record to indicate that the said money was meant for upkeep and maintenance of an unborn baby, or for the pre-natal care of the Respondent. In fact, the Appellant stated in his witness statement that at the time the Respondent was being paid the aforementioned amount, they did not know that she was pregnant. The money therefore cannot be computed as maintenance for the child.

32. There was willingness from the Appellant to provide for his child. During cross examination, he stated that he had been sending Kshs. 500/= several times and even bought clothes for DC and the Respondent between 2015 to 2018. It was his estimation that his support averaged Kshs. 2,000/= monthly. He even testified that he was willing to provide for the child as long as they moved back to the matrimonial home.

33. In this Appeal, the Appellant submitted that he was willing to cater for the minor on condition that the Respondent and the minor moved back to the matrimonial home. However, the position in law is that parental responsibility is neither dependent on the marital relationship of the parents nor on the whims of a parent but on consideration of the best interests of the child. This overarching principle is founded on Article 53 (2) of the Constitution.

34. Section 4 (3) [now section 8 (1)] of the Children’s Act also provides thus: -“Best interests of the child1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies: -a.The best interests of the child shall be the primary consideration;b.The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.”2. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—a.safeguard and promote the rights and welfare of the child;b.conserve and promote the welfare of the child; andc.secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest”.

35. Parental responsibility is therefore not a favour or a carrot to be dangled. It is provided for in Statute and in this case the Appellant is required to maintain the child whether or not the child was living with him or with the mother.

36. The Respondent in her submissions offered to cater for half of the maintenance costs so that each party would contribute 50/50 towards the needs of the child. This was the final determination of the trial court which ordered that the parties provide equally for the subject’s needs.

37. In the final analysis, I have found no fault with the Judgment of the trial court. The amounts awarded by the trial court were half the amounts that the Respondent sought. This is in line with the statutory provision of joint parental responsibility. It is in the best interest of DC that she is provided for by both parents. I therefore find the awards by the trial court to be just and fair to both parties.

38. The Appeal dated 9th October 2020 is dismissed. Each party shall meet their costs in this Appeal.

39. Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 13TH DAY OF JULY, 2022. ...............................R. LAGAT-KORIRJUDGEJudgement delivered in open court in the absence of the parties.