MTM v CNJ (Suing as mother and next friend of LM) (Civil Appeal E089 of 2024) [2026] KEHC 5057 (KLR) (Family) (23 April 2026) (Judgment)

MTM v CNJ (Suing as mother and next friend of LM) (Civil Appeal E089 of 2024) [2026] KEHC 5057 (KLR) (Family) (23 April 2026) (Judgment) Neutral citation: [2026] KEHC 5057 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E089 of 2024 HK Chemitei, J April 23, 2026 Between MTM Appellant and CNJ (Suing As Mother And Next Friend Of LM) Respondent Judgment 1.This judgment relates to the Memorandum of Appeal dated 12th August, 2024 filed by the Appellant, based on the grounds that:-1.The learned Magistrate erred in law and in fact in determining that the school fees and school related expenses in the minor’s current school should be fully borne by the Appellant despite reviewing both parties’ affidavits of means.2.The learned Magistrate erred in law and in fact by failing to evaluate the proper effect and weight of the evidence and in arriving at a decision which is not supported by or is against the weight of the evidence produced by the Appellant. 2.The Appellant therefore prays for orders that:a.This appeal be allowed and the judgment of the trial subordinate court be set aside with costs.b.The costs of this appeal be borne by the Respondent.c.Such further or other orders as this honourable court may deem just and expedient. 3.The Appellant has filed a record of appeal dated 12th September, 2025 whose summary is as follows. 4.The appeal as framed principally challenges the trial court’s allocation of full responsibility for school fees and related expenses to the Appellant, notwithstanding the existence of affidavits of means from both parties. 5.The Respondents’ pleadings and supporting affidavits on record contains the narrations of prolonged cohabitation, the birth of the minor and subsequent alleged abandonment by the Appellant, coupled with detailed monthly expenditure estimates amounting to Kshs. 50,000/=. 6.When the matter came up for directions the court directed the parties to file written submissions but It is only the Appellant who complied by filing his submissions dated 4th July 2025. 7.The Appellant’s written submissions are anchored on the constitutional and statutory principle of equal parental responsibility, invoking Article 53(1)(e) of the Constitution and Sections 31 and 32 of the Children Act, 2022 to argue that both parents bear joint obligations towards the child. Analysis And Determination 8.I have carefully considered the memorandum of appeal, the record of appeal and the submissions. 9.The trials court proceedings capture the viva voce evidence by the parties and were subjected to cross-examination. The Respondent (plaintiff in the lower court) reiterated that the Appellant is the biological father of the minor and asserted that he had failed to consistently meet his parental obligations, particularly in relation to school fees and general upkeep. 10.She maintained that the minor attends a private school and requires stable financial support to sustain her education and welfare. Her evidence emphasized the minor’s best interests, including continuity in schooling and maintenance of a reasonable standard of living. 11.Under cross-examination, the Respondent acknowledged certain financial contributions previously made by the Appellant but contended that such contributions were irregular and insufficient to meet the minor’s needs. She further defended the choice of school as appropriate for the child’s academic development and denied any exaggeration of expenses. The thrust of her testimony was that the Appellant possesses the financial capacity to contribute more substantially but had failed to do so voluntarily. 12.The Appellant in his testimony, confirmed paternity and acknowledged prior payment of school fees but asserted that he had consistently contributed within his means. He outlined his financial obligations, including support for another family and existing liabilities such as loans and rent. 13.He maintained that the Respondent unilaterally transferred the minor to a more expensive school without consultation, thereby imposing an unreasonable financial burden on him. He urged that parental responsibility should be shared equitably rather than imposed solely upon him. 14.During cross-examination, the Appellant conceded making some payments toward the minor’s education and upkeep but insisted that his financial position did not permit him to exclusively shoulder all expenses. He emphasized that both parents are legally obligated to contribute to the child’s maintenance and that the Respondent’s claims overstated his capacity while disregarding her own responsibility. 15.The proceedings, taken as a whole, reveal a contest primarily centred on the extent of each parent’s financial capacity and the propriety of placing full responsibility for school fees on the Appellant. 16.The trial court, upon evaluating the evidence and the parties’ respective affidavits of means, framed the central issue as whether the defendant had the financial capacity to meet the minor’s educational needs in her current school. 17.The court found that the circumstances surrounding the minor’s transfer to the new school were no longer material and, upon scrutinizing the defendant’s pay slip reflecting a gross income of Kshs. 285,000/= and a net income of approximately Kshs. 127,127/=, concluded that he had sufficient financial ability to meet school fees and related expenses. Consequently, the court held that the defendant should assume full responsibility for education costs, while also undertaking the minor’s medical cover, which he did not oppose. 18.In balancing responsibilities, the court declined to impose the full burden of upkeep on the Appellant, noting that having taken on the major obligations of education and medical care, he could not reasonably be required to cater for all other expenses. 19.In its final determination, the court structured parental responsibility guided by the best interests of the child. It ordered joint legal custody, with actual custody vested in the plaintiff and defined access rights for the defendant, including alternate weekends, shared holidays and regulated school access. Financial obligations were apportioned such that the plaintiff would provide shelter, utilities and part of the minor’s daily needs, while the defendant would cater for school fees, medical insurance and a limited monthly contribution of Kshs. 7,500/= towards upkeep. 20.The court thus adopted a balanced approach, ensuring both parents retained meaningful roles in the child’s life while prioritizing stability and continuity in the minor’s welfare, and ultimately made no order as to costs. 21.In Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) the court stated as follows: “…2. A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others{{^}} and in Peters v Sunday Post Limited...” 22.In Mohansons Food Distributors Ltd & another v Kenya Commercial Bank Limited & another [2021] eKLR the court stated as follows:“(8)Although the application is unopposed, it is the duty of the Court to nevertheless subject it to a merit evaluation in accord with the applicable laws and principles. Indeed, in Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR the Supreme Court of Kenya held that:“…as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter [Emphasis mine]. We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court…” 23.In NKG v SGB [2024] KEHC 5658 (KLR) the court pronounced itself as follows: “… 22. Since the two issues are intertwined, I will deal with them together. I must be guided at all times by the mantra that the best interest of a child principle is paramount when dealing with children matters. 23.Article 53 (2) of the Constitution provides: “A child’s best interests are of paramount importance in every matter concerning the child.” 24. Section 8(1) of the Children’s Act 2022 provides; a. 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. 25. The First Schedule of the Children’s Act 2022 lists down the considerations to be taken into account when ascertaining what is in the best interest of a child: - 1. The age, maturity, stage of development, gender, background and any other relevant characteristic of the child. 2. Distinct special needs (if any) arising from chronic ailment or disability. 3. The relationship of the child with the child's parent(s) and/or guardian(s) and any other persons who may significantly affect the child's welfare. 4. The preference of the child, if old enough to express a meaningful preference. 5. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity. 6. The stability of any proposed living arrangements for the child; 7. The motivation of the parties involved and their capacities to give the child love, affection and guidance. 8. The child's adjustment to the child's present home, school and community. 9. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access. 10. The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care. 11. Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent's/guardian’s willingness to use those methods. 12. The effect on the child if one parent/guardian has sole authority over the child's upbringing. 13. The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child. 14. The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child. 15. Where the child is under one year of age, whether the child is being breast-fed. 16. The existence of a parent's or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act. 17. Where there is a person residing with a parent or guardian, whether that person - a. been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code, or any other legislation. b. has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony. 18. Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child…” 24.In my considered view, the appeal, as framed, does not disclose sufficient grounds to warrant a complete setting aside of the trial court’s judgment. The Appellant’s primary complaint, that the learned Magistrate imposed full responsibility for school fees without properly evaluating the affidavits of means, must be assessed against the well-established principle that an appellate court will not lightly interfere with discretionary findings unless they are shown to be based on a misdirection of law or a manifest misapprehension of evidence. 25.Here, the record demonstrates that the trial court expressly considered the Appellant’s income and obligations before concluding that he had the financial capacity to meet the minor’s educational needs. In that regard, the Appellant’s grounds remain largely generalized and fail to pinpoint any specific evidentiary error or legal misdirection sufficient to displace that discretion. 26.That said, a critical interrogation reveals a limited but notable weakness in the trial court’s reasoning, particularly in its treatment of proportional parental responsibility. While the court correctly anchored its determination on the best interests of the child and the need for continuity in education, it did not undertake a structured comparative analysis of both parties’ financial capacities. The Respondent’s evidence on expenditure, though indicative of need, was not rigorously substantiated through itemized or verifiable documentation, while the Appellant’s financial disclosures, though more structured, did not conclusively demonstrate incapacity. 27.In such circumstances, the imposition of full educational liability on one parent, without explicit justification for excluding the other from contribution, suggests a degree of imbalance that may amount to a partial misdirection in the exercise of discretion. 28.Ultimately, however, the determinative consideration remains the paramountcy of the child’s best interests, particularly the need to secure uninterrupted education and welfare. The Appellant’s submissions, while emphasizing equality of parental responsibility, fail to sufficiently engage with this child-centric standard and instead focus predominantly on perceived financial unfairness. 29.The Appellant’s approximate net income of Kshs. 127,127/= is the only clearly demonstrated earning before the court, while the Respondent’s income remains largely unproven, though her assumption of shelter, utilities and day-to-day care implies some level of contribution. 30.It is of course expected that the educational needs of the minor will continue rising as she progresses and I do not think it is fair to apportion the entire educational needs upon the Appellant alone based on the reasons I have stated above. 31.In the premises and in the absence of precise income disclosure from the Respondent, a reasonable model would be to allocate 70% of school fees and school-related expenses to the Appellant and 30% to the Respondent, reflecting his proven income while still recognizing the Respondent’s shared legal obligation. 32.Under this model, educational expenses being essential and non-discretionary, should be shared proportionately but with a primary obligation on the Appellant, given his demonstrated earning capacity. 33.Consequently, the appeal is allowed as follows:-(a)The trial court’s judgement on educational needs of the minor is set aside and substituted with an order that the Appellant shall shoulder 70% and the Respondent 30% thereof.(b)The other orders in the judgement are undisturbed.(c)Each party to bear its costs. Dated Signed And Delivered At Nairobi Via Video Link This 23Rd Day Of April 2026.H K CHEMITEIJUDGE