[2022] KEHC 1085 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY APPEAL NO. 29 OF 2019

RULING

NK...........................................APPELLANT /RESPONDENT

AND

AL.............................................RESPONDENT/APPLICANT

JUDGEMENT

Factual background

1. The appellant and respondent who are now divorced got married on 26th January, 2002. They have been blessed with three children who by the time these proceedings commenced before the trial court were 11 years, 9 years and 5 years old. Owing to a strained marital relationship, a dispute over the custody and maintenance of their children arose.

2. Consequently, the respondent one AL father to the children moved to Tononoka children’s court vide a plaint dated 10th March,2014 and amended on 12th February, 2019 seeking custody of the children whom he claimed the appellant (mother) had deserted after travelling to Uganda (her home country). He also sought an order directing the respondent/appellant to make some financial contribution to meet children’s expenditures.

3. In her defence and counter claim filed on 28th July, 2017 and amended on 31st July, 2017, the appellant denied allegations of child neglect and desertion. Instead, she shifted blame to the respondent for cancelling her dependency visa following their divorce thus forcing her to retreat back to her home country in Uganda as she could not work in Kenya. She also prayed for custody of their children and an order for the respondent to make periodical financial support.

4. After hearing the case, the trial court pronounced itself through its judgment delivered on 10th July, 2019 thus directing that;

a. Both parents have joint legal custody.

b. During school days both parents shall have custody but subject to the defendant acquiring a place of her own in Mombasa as follows;

i. The plaintiff shall have the children from Monday evening to Friday morning.

ii. The defendant shall have the children from Friday evening and drop them on Monday morning.

iii. The defendant to pick the children from school on Friday evening and drop them on Monday morning.

iv. Should the defendant decide to relocate to Uganda she will enjoy unlimited access during school days over the weekends incase she is in Kenya from Saturday morning to Sunday evening

v. School holidays shall be shared equally at 50:50

vi. The plaintiff shall pay school fees and school related expenses for the children.

vii. The plaintiff shall cater for food and all other needs during his period of actual physical custody.

viii. The clothing needs of the children shall be between the parties at 50:50

ix. Each party shall cater for the entertainment needs of the children during their period of custody.

x. The defendant shall cater for the transport for the children should she want to travel with the children to Uganda (Sic) during her period over the school holidays. The father to hand over travel documents during the time of travel.

xi. The medical needs of the children to be catered for by the plaintiff as and when the need arises.

5. Aggrieved by the said judgment, the appellant moved to this court seeking the court to substitute the learned magistrate’s orders with appropriate and just orders as the court could deem fit. In particular, the applicant contended that as a mother she was best suited to have actual custody of the children who were of tender age and that she had no means of income to cater for the financial needs of the children as ordered by the court.

6. After considering the record of appeal, grounds of appeal and rival submissions, the court rendered its judgment on 10th July, 2020 thus directing as follows;

i. Joint legal custody of the children is granted to both the appellant and the respondent

ii. The appellant shall have actual physical custody of the children while the respondent shall have unlimited access every alternative weekend during the school terms and half the school holidays.

iii. Appellant shall not take the children out of the jurisdiction of the court without the consent of the respondent or leave of this court.

iv. The respondent shall continue to pay school fees and educational expenses for the children as well as cater for their medical needs.

v. The respondent shall continue to cater for food, clothing, entertainment and other needs of the children with effect from 1st July, 2021 hence the appellant shall take care of these needs during the period of actual physical custody of the children.

vi. This being a matter concern the children, each party shall bear own needs.

7. Subsequently, the respondent filed a notice of motion dated 11th August, 2020 seeking stay of execution of part of the judgment delivered on 10th July, 2020 pending hearing and determination of the intended appeal. The application was later placed before Justice Otieno on 13th August 2020, for directions. The hon. Judge sought clarification from the respondent as to which part of the judgment he wanted stayed. It was then clarified by counsel for the respondent that the purpose for stay orders was to forestall any possible arrest of the respondent in case he failed to pay school fees for the children who were schooling at Agakhan academy which school fees he was not able to pay due to lack of funds occasioned by loss of employment.

8. In the cause of that clarification, the appellant’s counsel indicated that the appellant was not keen in having the respondent arrested. Instead, counsel told the court that the appellant had approached the school where the children were schooling and that the school was ready to financially aid the children for purposes of paying school fees subject to the respondent applying for financial aid.

9. In its final directions, the court declined to make any interim orders for stay of execution and instead it directed the respondent to submit to the school proof that he had lost his known source of income to enable the school consider making a considered opinion on financial aid to the school. The respondent was directed to do so within 14 days. The court further ordered the status quo be maintained until the hearing of the application on 7th October, 2020.

10. After hearing the application dated 11th August, 2020 the court dismissed the stay application on 26th November, 2020.

11. Subsequently, the applicant filed an application dated 20th January, 2021 seeking the respondent to show cause why he should not honour the court judgment by paying a sum of kshs 1,443,606 being the balance of school fees and other related school expenses plus kshs 2050 being collection fees.

12. Later, the respondent filed a notice of motion dated 3rd March, 2021 seeking the court to carry out an enquiry as to the financial position of the applicant. When the mater came up for directions, the court directed that the two applications be heard together.

13. According to the notice to show cause application dated 20th January, 2021, the applicant is urging the court to order the respondent to show cause why he should not meet his financial obligations in particular paying school fees and other financial related expenses.

14. In his application of 3rd March, 2021 the respondent /applicant through his supporting affidavit sworn on 3rd March, 2021 averred that, the notice to show cause was being carried out without the court having carried out an enquiry to the financial status of the applicant and the consequences he is likely to suffer. He stated that having lost his employment the year 2018, he was confident that he would meet his financial obligations from his savings and little earnings without straining. He further averred that due to the advent of corona virus, he was unable to pay school fees at their current school (Agakhan). That he is surviving on begging from friends and well-wishers.

15. As proof of his financial challenges, he attached a letter from his former employer Petro oil dated 1st September, 2020 confirming that his consultancy services had ceased by November, 2018 (See annexure AL-1). He also attached copies of bank statements to show that all his relevant accounts as known to the appellant had no funds (see annexure AL-3). He further attached KRA e-returns to show that he has not been earning income since 9th January, 2020 -31st December, 2020 and 1st January, 2019 and 31st December, 2019 (See annexure AL-2)

16. It was further stated that due to his poor financial position, his credit card had been overdrawn. To prove that claim, a copy of the credit card statement marked AL-4 was attached. He deposed that he was not able to pay Ksh 1, 443,606 at Agakhan academy. He denied operating any family business.

17. In reply to the notice to show cause, the respondent filed a replying affidavit sworn on 28th January, 2021 and filed on 29th January, 2021 stating that the application to show cause ought to have been dealt by the trial court hence the application before this court is an abuse of the court process. He expressed his pride of being a father to their children who were schooling at Agakhan academy in grades 12, 9 and 6 respectively.

18. That for several years he has been paying school fees for his children until he lost his consultancy job on November, 2018. He attached the letter confirming termination of consultancy services from Petro oil. He stated that he was completely unable to pay a balance of kshs 1, 443,606 including school fees and other school related expenses. He claimed that after realizing his financial challenges, he consulted the children and the appellant who allegedly agreed on transferring the children to Coast Academy Mombasa which is less costly but still a reputable school by all means.

19. The respondent stated that he paid school fees at Coast Academy for the 2nd and 3rd terms but the appellant barred children from transferring. As proof of school fees paid at Coast academy, school fees receipts were attached) (Annexure AL-2). He further averred that neither the lower court judgment nor high court judgment compelled him to pay school fees at Agakhan academy.

20. He denied having received any share of funds through inheritance in a succession case which is pending before the high court being appeal No XXX of 2019 arising from the Kadhi’s court judgment.

21. In her further affidavit sworn on 1st February, 2021, the appellant denied holding any consultation as a family regarding the change or transfer of their children from Agakhan Academy to Coast Academy a school which does not match the standard of Agakhan Academy. She stated that she was forcefully made a house wife by the respondent who always and whenever she did anything to earn an income engaged her in a fight or punishment

22. It was the appellant’s contention that the production of a termination of employment letter is superfluous as it was in existence even when the lower court and high court delivered their respective judgments. That no review application has been made hence the respondent cannot seek to alter the judgment through the back door. In her view, the application was meant to punish her.

23. In response to the application dated 3rd March, 2021, the appellant filed a replying affidavit sworn on 8th March, 21 stating that the respondent had failed to disclose all his sources of income and that the record discloses huge sources of income. She claimed that it had now come to her knowledge that the respondent is also a beneficiary of kshs 11,107,150 vide a family matter Firoz Sheik and 2 others Vs Hassan Ahmed and another ( 2016) e KLR.

24. She further stated that the excuse that the respondent had lost his job is not true as no bank statements were attached to prove that assertion. She contended that the respondent had come to court with dirty hands and that he has deliberately refused to seek financial aid from the school where the children are schooling.

25. Having consolidated the two applications, counsel made oral submissions for their respective parties. Ms.Osino appearing for the appellant reiterated the averments contained in the notice to show cause, further affidavit and a replying affidavit in response to the respondent’s application of 3rd March, 2021.

26. Learned counsel opined that the issue before court is not whether the respondent should honour the decree but rather whether he is capable of honouring his financial obligations. Counsel contended that the respondent is a person of means being a beneficiary of 3. 4% out of kshs 200,000,000 in a bank account in respect of a succession case now finalised.

27. Learned counsel questioned some bank entry of kshs 100,000 made on 16th March, 2020 into the respondent’s account yet no explanation was offered to explain the source. Counsel also made reference to a bank entry made on 2nd January, 2021 to the respondent’s account for a sum of kshs100,000 yet no explanation was given. Counsel placed reliance of the holding in the case of Satpal Kaur Singh Rihal Vs Surinder Singh Rihal ( 2005)e KLR where the court found the respondent in that case guilty of disobeying a court order in a children case hence directed to honour the same within 14 days in default serve 6 months

28. On his part, Mr Siminyu for the respondent also adopted the content contained in the affidavit in support of their application and a replying affidavit to the application for notice to show cause. Learned counsel contended that it was the duty of the court to carry out an inquiry under Section 104 of the children Act to ascertain a party’s capability to meet his financial obligations as per the decree. According to counsel, no enquiry was carried out to determine that the applicant has a source of income to meet the contested obligation. Concerning the claim that the applicant is a beneficiary in a succession case, counsel contended that there is no proof that the respondent has received over 11 million as his share in the aforesaid succession case. That in any event, there is an appeal pending in respect of that succession case.

29. Regarding the notice to show cause, counsel contended that the applicant did not prove wilful disobedience to the court order. Counsel further submitted that there was a letter of termination of employment and that the author was willing to come to court to confirm that position.

30. Concerning the entry of kshs100,000 to his account from upcountry, it was contended that it was money from a well-wisher. As regards non-disclosure of sources of income in various accounts, counsel asserted that the applicant was a co-signatory to all accounts yet she did not produce any evidence to show the alleged sources of income if any.

31. Given the acrimonious issue as to whether the applicant was still in employment, the court summoned the officer in charge human resource petro Oil to confirm the status of the respondent’s employment. The legal officer of petro oil came to court and confirmed that the respondent ceased being a consultant to the company the year 2018.

32. Having considered the two applications herein, I am able to discern the following issues for determination;

a. Whether this court has jurisdiction to entertain the application for notice to show cause

b. Whether this court can carry out an inquiry over the respondent’s financial status.

c. Whether the respondent is guilty of disobedience of court order.

33. There is no dispute that there is a valid judgment which is still in force. The same has not been varied, set aside, reviewed, or stayed. The orders are still subsisting. The appellant has moved to this court seeking to execute the judgment of this court made on the 10th July, 2020. She is seeking over kshs 1,443,606 million being arrears of school fees and school related expenses. According to her, the respondent has disregarded the order hence the notice.

34. According to the judgment of 10th July, 2020 the honourable court substituted part of the lower court’s judgment. Ideally, the high court pronounced itself with finality and it cannot therefore reopen any further proceedings over the subject matter. In other words, it became functus officio. See Telcom Kenya Limited Vs John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telcom Kenya ltd. ( 2014) e KLR where the court of appeal held that;

“funtcus officio is an enduring principle of law that prevents the re -opening of a matter before a court that rendered the final decision. It is a doctrine that has been recognized in the common law tradition from as long as ago the later century …”

35. However, the appellate court went further to state that;

“The doctrine is not to be understood to bar any further engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is merit based decisional engagement with the case once final judgment has been entered and a decree thereon issued.”

36. Mr Siminyu argued that the high court has no jurisdiction to entertain any application for execution as that is the work of the lower court. Ms Osino was of the view that the orders disobeyed were made by the high court. Whereas both arguments are valid, nothing prohibits this court from seizing jurisdiction to enforce obedience to its orders.

37. Before me is an interlocutory application seeking enforcement of a high court order. This court has the discretion to hear the notice to show cause application or refer it to the trial court. In the best interests of the child principle pursuant to Article 53 (2) of the Constitution, this court is properly seized of the matter as either court has jurisdiction. Therefore, I cannot dismiss the application on that ground.

38. Regarding the issue whether this court can carry out an inquiry on the respondent’s financial status, it is the position of the law that such enquiry be carried out during the trial or if necessary at the stage of hearing the appeal by way of additional evidence.

39. However, where there is notice to show cause why a court order should not be honoured thus attracting a quasi-criminal sanction for contempt, the court may request clarification of the financial ability of the person accused of disobedience. To that extent, a party can seek such clarification without re -opening the entire suit.

40. The reason for seeking confirmation of employment status of the respondent was because that is the main ground upon which the notice to show cause is anchored. Accordingly, the financial obligations of the respondent shall remain whether employed or not until the judgment of 10th July 2020 is set aside or reviewed.

41. As regards notice to show cause, it is incumbent upon the appellant to prove that the respondent is aware of the existence of the clear terms of the order; that he has disobeyed the order and that the disobedience was deliberate. See Republic Vs Attorney General and another exparte Mike maina kamau (2020) e KLR

42. Indeed, court orders are not issued in vain hence must be obeyed. See Econet wireless Ltd Vs Minder for information& communication of Kenya and another ( 2005)e KLR.

43. However, there is no dispute that the respondent is aware of the court orders. Has he honoured the subject order? the respondent claimed that he has honoured the order according to his ability by paying school fees for the children in a school he can afford that is Coast Academy at least for the two younger children. He claimed that this was after holding a family consultation. In his response, the appellant contended that there was no family consultation done and if proved that the respondent has no money, then she will have no problem.

44. From the judgment of 10th July, 2020, the respondent was ordered to carry the entire financial obligations for the children including payment of school fees. He however opted to pay for the first child who was a candidate and then sought to move the other two to a lesser expensive but equally good school. The appellant is insisting that the children have to go through Agakhan Academy which is superior to coast academy.

45. From the judgment of the lower court and that of the high court, the status of the school that children were to go was not specified. From the pleadings and parties’ admission, school fees for one child at Agakhan per year is extremely high as compared to Coast Academy which is equally a reputable school

46. Whereas children are entitled to their rights, the same should be enjoyed within the means of their parents otherwise parents may end up with blood pressure and other related ailments at the altar of the right of a child. I am a live to the fact that basic Education to a child is mandatory. The respondent has been paying school fee for his children at Agakhan academy. The position has since deteriorated due to a bad economy associated with corona and loss of employment.

47. I take judicial notice of the fact that corona has surely affected most businesses. To claim that the respondent is expecting money from a succession case as a beneficiary is being speculative as there is no proof that such money has been received or credited to the respondent’s account. Equally, the respondent is not in employment as disclosed from the former employer.

48. In the circumstances, one cannot demand for the adverse party to meet school fees and other related expenses in a high cost school even without a specific court order. Since the respondent is ready to honour the court order in paying school fees as directed by taking the two younger children to a lesser costly school which he can afford, I do not see any harm hence no disobedience to the court order. By so doing it does not at all review nor set aside the court order that the respondent pays school fees and other related expenses. In any event, there is no proof that the respondent has sufficient sources of income to sustain the children at a high cost school.

49. Since the respondent is carrying the entire family financial obligations alone, he cannot be pushed too hard to educate all the children at a high cost school beyond his means. At least there was no court order to the effect that the children must school at Agakhan Academy. The issue here should be, does the transfer of the children to a lesser expensive school but equally good prejudicial to the child? I do not think so. If the appellant insists on the two Children going through Agakhan academy which is a high cost school, she should meet the difference of the school fees between Agakhan and Coast Academy. To that extent, I do not find any sufficient ground to punish the respondent for contempt simply because he cannot afford to educate his children at a high cost school.

50. However, should the respondent’s financial position improve, he shall be at liberty to retain the children at Agakhan academy. Considering payment of the outstanding school fees, the respondent must clear the same in consultation with the school.

51. For avoidance of doubt, the judgment of 10th July, 2020 is still in force in its entirety regardless whether the children are in Agakhan academy or Coast Academy. As concerns costs, this is a family issue hence each party shall bear own costs.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 18TH DAY OF MARCH 2022

J. N. ONYIEGO

JUDGE