[2023] KEHC 27386 (KLR)

MAO v GKI (Family Appeal E012 of 2023) [2023] KEHC 27386 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27386 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal E012 of 2023

G Mutai, J

December 1, 2023

Between

MAO

Appellant

and

GKI

Respondent

Judgment

1. In a judgment delivered on 16th September 2023, Hon Viola Yator, PM, declared that the Appellant and the Respondent have equal parental responsibility over the issues, the subject, of the proceedings. Both parties were given joint legal custody. However, the Appellant got actual physical custody, with the Respondent getting unlimited access on alternate weekends from Saturday morning to Sunday evening and half the period of all school holidays. The Respondent was ordered to pay Kes.15,000. 00 for the children's upkeep on or before the 5th day of each month.

2. The Appellant was aggrieved by the said decision. Consequently, she filed an application dated 27th October 2022 which sought to have the amount payable towards the upkeep of the said children reviewed upwards from Kes.15,000. 00 to Kes.30,000. 00 “or to an amount other than Kes.15,000. 00” and to have the amount so ordered deducted from the salary and allowances of the Respondent.

3. Upon considering the said application, the Court below found as follows:-“I have checked the Mpesa statements, and it shows that that Defendant has been sending some amounts to the Plaintiff on several occasions, because the defendant has been doing this voluntarily without being compelled by anybody, the Court calls upon the Defendant to be helping when called upon and to cushion the Plaintiff from the effects of inflation since she is the one with primary custody of the children, the Court orders the defendant to be buying dry stuff from time to time like maize flour, wheat flour, rice, beans, cooking oil and diapers. In the alternative, the defendant can increase the monthly maintenance amount to Kes.20,000. 00, whichever is convenient to him”

4. Being dissatisfied by the said decision, the Appellant filed the instant appeal. She raised 5 grounds of appeal to wit:-1. The trial Court erred in both law and fact by dismissing the application for review in view of the totality of the evidence presented before the trial Court;2. That the trial Court erred in law and fact in holding that an award of Kes.13,000. 00 per month was adequate for the maintenance of the two children who are the subjects of this litigation;3. The trial Court erred in the evaluation of the evidence, particularly in regard to the means and capacity of the Respondent to maintain the said two children;4. The trial Court further erred in that its decision is totally against the weight of the evidence; and5. The trial Court erred in that it failed to take into account the best interests of the said two children.

5. On 3rd August 2023, this Court directed that the appeal would be canvassed by way of Written Submissions. Parties filed their respective Written Submissions.

The Appellant’s Written Submission 6. The Appellant's submissions are dated 8th September 2023. The Appellant stated that she was previously married to the Respondent. Their marriage was blessed with two issues, then aged 6 and 4. The marriage broke down and was dissolved. The Appellant filed for maintenance vide a plaint dated 12th March 2021. The dispute before the Court below was dispensed with through affidavits and written submissions. The trial Court ordered the Respondent to pay Kes.15,000. 00 as maintenance for the two children. The appellant was dissatisfied with the said decision and applied for a review of the same. The Appellant was dissatisfied with the review decision and thus filed the appeal now before this Court.

7. The Appellant identified two issues as coming up for determination:-1. Whether the trial Court erred in that its decision is totally against the weight of evidence; and2. Whether it is in the best interest of the children for the Court to increase the maintenance money.

8. In support of the first ground the Appellant averred that the Respondent produced a two weeks pay slip with a view to misleading the trial Court. It was submitted that the Respondent earned Kes.283,240. 00 in January, Kes.300,981. 00 in February and Kes.165,780. 00 in March. When the parties lived together, the Respondent settled all the bills as the Appellant was a housewife. The children's monthly expenses were Kes.114,067. 00. Counsel submitted that the Respondent only paid school fees and provided a sum of Kes.15,000. 00 as maintenance. In respect of the former, payments were payable once every three months “compared to the Plaintiff who pays rent, electricity, and house shopping among others on a monthly basis.”

9. It was urged that the trial Court failed to give a justification for its decision. Counsel for the Appellant submitted that the Court ignored its duty and failed to consider the evidence before it. I was referred to the decision of the Court in the case of SLM versus DAM [2018]eKLR for the proposal that should interfere with the discretion of the trial Court.

10. On whether it would be in the best interest of the children of the Court to increase the maintenance money, counsel referred me to Article 53(2) of the Constitution of Kenya 2010 and Section 8(1) of the Children Act. It was urged that it would be in the best interest of the children to increase the maintenance amount as Kes.15,000. 00 was barely enough for one child, let alone two, as the cost of living had increased while children were growing “by the day and consuming more”.

Respondent’s Submissions 11. The Respondent opposed the application and filed written submissions dated 21st September 2023. Counsel for the Respondent submitted that the suit in the Court below was judiciously, meticulously and extensively canvassed before the trial Court and a judgment was delivered on 8th December 2021”

12. On the grounds of appeal, the Respondent denied that the application for review was denied. The Respondent referred to the finding of the Court that:-“the Court orders the defendant to be buying dry food stuffs from time to time like maize flour, wheat flour, rice beans cooking oil, and diapers. In the alternative, the defendant can increase the monthly amount to Kes.20,000. 00, whichever is convenient to him.”

13. On whether the amount of Kes.15,000. 00 was too low or that the trial Court did not evaluate evidence properly it was submitted that the Court discharged its duty well. It was further submitted that the financial capabilities of both parents were considered. It was urged that Article 53(1)(e) of the Constitution of Kenya, 2010 places the onus of taking care of the children on both parents; that is to say, children are the joint responsibilities of both parents.

14. The Respondent submitted that he earns an annual salary of Kes.1,789,888. 00, that is to say, Kes.149,157. 00 monthly. Whereas it was admitted that he earns overtime, it was argued that overtime payment wasn’t guaranteed as it is based on the availability of work.

15. On expenses, it was urged that the Respondent pays Kes.73,930. 00 per term to Nyali primary school and provides extra support to the Appellant “by sending extra money and by buying household shopping “. Further, he has two biological children, LAK and EDK, who he maintains. It was urged that the Appellant, on the other hand, earns Kes.80,000. 00 and only pays rent, house help, and electricity bills. It was thus denied that the Appellant had difficulty caring for the children.

16. The Respondent urged that the Appellant was motivated by ill motives and was bent on frustrating the Respondent.

17. It was submitted that this Court has no jurisdiction to vary the maintenance amount, and it was the duty of the trial Court to do so. I was referred to the decision of the Court in EAW versus WAN [2021]eKLR, where Muchelule, J, as he then was, stated as follows:-“The Children's Court has the jurisdiction to periodically review and adjust the maintenance and education orders which it has issued where the circumstance of the child and the parents change (JKW versus AWM[2018]eKLR). In order to review upwards or downwards, as the circumstances may, demand, the Court has to fully hear the parties and examine whatever evidence of means that will be availed. It is only then that the Court can reach a decision as to the appropriate maintenance and education amount”.

18. It was therefore submitted that this case is fatally detective, unmerited incompetent and outright abuse of this honourable Court’s process, and as such, the same should be dismissed.

The Applicable Law 19. This being a first appeal, this court must re-evaluate and assess the evidence adduced before the court below and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of witnesses and hearing their evidence first-hand.

20. This was aptly stated in the cases of Selle versus Associated Motor Boat Company Ltd[1968] EA 123, where the Court of Appeal rendered 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..."

21. I will, therefore, re-evaluate the evidence and come up with my own conclusions but also bear in mind that I should not interfere with the findings of the trial court unless the same was based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. This is in tandem with decision of the court in Peters versus Sunday Post Limited (1958) EA 424,where it was held as follows:-“It is a strong thing that for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: It is not enough that the appellate court might itself have come to a different conclusion."

22. This is an appeal arising out of the proceedings in the Children's Court. The subject children are 6 and 4 years old. The Constitution and the Children Act require that in any matter concerning children, their best interest must be considered. Did the impugned ruling consider the best interests of the children? Does the appeal have merit? To answer these questions, I will first have to set out below the constitutional and statutory underpinnings of the best interest principle.

23. Article 53(2) of the Constitution of Kenya, 2010 provides as follows:-“(A child’s best interests are of paramount importance in every matter concerning the child.”

24. The above constitutional provision is echoed and effected by section 8(1), (2) and (3) of the Children Act, 2022, which provides that:-(1)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; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.”

25. It must be noted that the “best interest” in the said provisions is that of the child/children and not of the parents. The court in the case of MAA v ABS [2018] eKLR stated as follows: -“What is stated in Section 4 (3)(b) of the Act is the paramountcy principle which is vital in all matters concerning children and must be given prominence. While considering this matter, this Court was alert to the welfare of the child herein who is of tender years. The matter is not about the Appellant and the Respondent and their interests are secondary to those of the child. The foregoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein...”Issues

26. In my view, the following issues fall for determination by the court: -1. Whether the Court made an appropriate assessment of evaluation or maintenance; and2. Whether the maintenance amount ordered by the Court was in the best interest of the children.

Analysis and Determination 27. I shall analyse each of the issues below.Did the Children's Court make an appropriate assessment of the evidence?

28. The Appellant submitted that the court failed to consider the evidence adduced that showed that the Respondent had a good income. Further, the trial court did not give reasons for its decision.

29. I note that the court observed that the Respondent provided a two-week pay slip instead of a month's. His monthly income was in excess of Kes.280,000. 00. Although in the submissions, a great part of that income was attributed to overtime, it would appear to me that overtime in the employment the Respondent is engaged in is regular. The quantum of pay the Respondent gets was not taken into account in the ruling. The court also failed to take into account the curious actions on the part of the Respondent, which the court observed in the ruling, of resigning from a directorship in a company and seeking to change the school the first child was attending.

30. In the circumstances, I find and hold that the trial court did not make an appropriate assessment of the evidence.Was the maintenance amount ordered by the court in the best interest of the children?

31. The Court in SLM versus DAM [2018]eKLR stated as follows:-“Ougo, J in PMA versus GML [2016] eKLR stated that in seeking to ascertain maintenance, the court should have regard to existing and potential means of the parties, their respective earning capacities, financial needs and obligation; the duration of the marriage the conduct of the parties prior to divorce, their conduct that led to the breakdown of the marriage remembering that both parties have equal rights under Article 45(3) of the Constitution.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 the assessment of upkeep expenses.

32. I agree with the above holding.

33. Given the income of the Respondent, it is the view of this Court that the amount he was ordered to pay is too low. Kes.15,000. 00 is too modest an amount. He can afford to pay more so that his children can continue enjoying the standards of living they were used to. Although he has two other children, a higher maintenance amount would not affect his ability to care for those other children, nor would there be a material change in his circumstances.

34. The Children's Court had the obligation of protecting the best interest of the children. In the ruling, however, the learned magistrate appears to have abdicated her duty. Rather than order the Respondent to pay more, she resorted to moral exhortations that couldn't possibly be enforced.

35. The Respondent was requested to consider making purchases of dry foods or increasing the amount he was paying to Kes.20,000. 00, “whichever is convenient to him”. By making maintenance dependent on the convenience of the Respondent rather than the best interest of the children, the learned magistrate, in my view, erred.

36. As the caregiver, the Appellant has the greater burden of bringing up the children. The contribution of the Respondent, on the other hand, is more circumscribed; apart from paying school fees and maintenance, everything else is at his pleasure. In my view, when reckoning equal responsibility of the mother and father under Article 53(1)(e) of the Constitution, both monetary and non-monetary contributions of each parent must be reckoned and given due weight.

37. Given the errors I have identified; this honourable court has an obligation to vary the judgment of the court below in the interest of justice.

38. Whereas this court has the option of remitting the file to the Children's Court for assessment of suitable maintenance amount, I am of the opinion that allowing the application is a more prudent use of the scarce judicial time.

Disposition 39. The upshot of the foregoing is that the appeal has merit. The quantum of maintenance ordered by the Court below is too low and not in the best interest of the two children. In the circumstances, I vary the same and hereby order that the Respondent pays Kes.25,000. 00 per month with effect from 5th January 2024. Such payment is to be made on or before the 5th day of each subsequent calendar month.

40. Each party shall bear own costs.

Orders accordingly.

DATED AND SIGNED THIS 1ST DAY OF DECEMBER 2023 AT MOMBASA VIA MICROSOFT TEAMS.………………………………….GREGORY MUTAIJUDGEIn the presence of: -Ms. Murage for the AppellantMs. Sewe for the Respondent