[2022] KEHC 16147 (KLR)

NMM v KMM (Civil Appeal E080 of 2021) [2022] KEHC 16147 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16147 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal E080 of 2021

FN Muchemi, J

December 8, 2022

Between

NMM

Appellant

and

KMM

Respondent

(Being an Appeal from the Ruling of Hon E Angima RM delivered on December 2, 2021 in Nyeri Children’s Case No 11 of 2016)

Judgment

Brief Facts 1. The appellant instituted a suit against the respondent in the Children’s court seeking orders for custody and maintenance of two minors then aged 14 and ten (10) years. The matter proceeded to hearing and the court rendered its judgment on August 19, 2016 where physical and legal custody was awarded to the appellant and access to the respondent. The court further held that the respondent do pay the school fees and provide education accessories of the two minors and facilitate medical care through his employer’s medical cover. The appellant was ordered to cater for shelter and pay for the utility bills. The court stipulated that both parties share expenses equally for clothing at Kshs 7,500/- every four months or Kshs 1,875/- per month and food at Kshs 10,600/- equally between both parties when the children would be home during the school holidays.

2. The appellant thereafter filed a Notice to show cause against the respondent for failure to pay arrears of Kshs 286,300/= as per the judgement. The respondent filed an application for orders seeking to review and vary the amounts in the Notice to Show Cause. The court rendered its ruling on December 2, 2021 and held that the appellant cater for the shelter, clothing and food during school holidays of KMK as well as her academic accessories. The respondent was ordered to cater for the minor’s school fees at a school agreed on by both parties, for the minors health cover and to pay for the utility bills. The court extended parental responsibility over KNK beyond her 18th birthday and directed that the appellant pay for her daughter’s accommodation and other academic needs and the respondent pay the child’s school fees at the university. The court ordered the respondent to pay the arrears of Kshs. 286,300/- in equal instalments of Kshs 6,000/- per month within 4 years.

3. Being aggrieved with the decision of the trial court the appellant has lodged the instant appeal citing 5 grounds of appeal in her Memorandum of Appeal as follows:-a.The learned trial magistrate erred in both law and in fact in reviewing the judgment and decree of August 19, 2016, without sufficient and reasonable cause to the detriment of the appellant;b.The learned trial magistrate erred both in law and in fact by reapportioning parental responsibility disproportionately contrary to the law as the same is oppressive to the appellant and is not in the best interests of the subjects;c.The learned magistrate erred in both law and fact by allowing the respondent to liquidate the decretal sum of Kshs 286,300/- in equal monthly instalments of Kshs 6,000/- without basis and sufficient evidence;

4. Parties agreed to dispose of the appeal by way of written submissions.

Appellant’s Submissions 5. The appellant submits that due to the harsh economic times the cost of food, utilities, shelter and clothing has increased. The appellant contends that the increment has surpassed that of school fees and she urges the court to review the judgment of the trial court.

6. The appellant further urges the court to review the parental responsibility over the 18 year old minor and allocate equal shared responsibility to enable the child complete her studies. The appellant states that the child applied for a helb loan however she was unsuccessful. As such, the appellant submits that she needs school fees to the tune of Kshs 38,000/- 40,000/- for one year, accommodation at Kshs 46,000/- for the year, food at Kshs 9,000/- plus her educational needs.

7. The appellant submitted that the respondent did not produce any documentation to support his claim that he has another family. The appellant further contends that the birth certificates attached by the respondent belong to her children. She further submits that the birth certificate presented on January 3, 2022 of JA does not bear the defendant’s name and in any event, the child’s mother is a high school teacher and is able to cater for the child’s needs.

8. It was further argued that the children do not have access to the military health care as they do not have gate passes. As such, the appellant states that she has catered for the health needs of the children thus straining her.

9. The appellant further submitted that the respondent has not made any attempts to transfer the minor, KMK to a school that the respondent can afford. The appellant thus urges the court to protect the minor and disallow the respondent from disrupting his studies. Moreover, the appellant urges the court to review the ruling of the trial court and find that the respondent pay back the sum of Kshs 286,300/- within twelve months in equal instalments of Kshs 21,340/-.

10. The appellant argues that the respondent is only paying school fees for the two children whereas she caters for everything else. She further submits that the same is oppressive to her and she urges the court to consider the best interests of the children.

The Respondent’s Submissions 11. The respondent relies on Section 24 of the Children Act and submits that parental responsibility is an equal and joint responsibility of the parents to a child and thus no parent shall be treated specially as having a superior right. The respondent further submits that he has another family to maintain and he prays that the court take this into consideration as did the trial court when it found it reasonable for him to be remitting Kshs 6,000/- to the appellant and to pay school fees.

12. The respondent relied on the case of Crispus Maghanga Mzae vs Mary Mukhwana Kwanusu Mombasa HCCC No 58 of 2004 and submits that the amount for maintenance ought not to oppress a parent below the subsistence level. The respondent contends that he is currently settling the amount owed to the appellant and paying school fees and thus anything more shall put him in financial hardship.

13. The respondent contends that the appellant is guilty of non-disclosure of material facts and the learned magistrate realized that she is a nurse and therefore a person of means and thus modified the judgment.

14. The respondent relies on the case of Mbogo & Another v Shah [1968] EA 93 and submits that an appellate court may only interfere with the decision of a trial court if it is satisfied that the court exercised its discretion injudiciously.

Issue for determination 15. The main issue for determination is whether the appeal has merit.

The Law 16. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“…..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. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

17. The Court of Appeal inKiruga vs Kiruga & Another[1988] KLR 348, 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. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

18. Therefore this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.

19. The judgement of the court was delivered on August 19, 2016 by Hon Wambilyanga who gave the following orders:-i.That the parents shall have equal parental responsibility.ii.That the appellant shall have both physical custody of the two minors and unlimited access to the minors.iii.That the appellant shall provide shelter, cater for house rent and pay utility bills.iv.The appellant shall cater for education of the minors by payment of school fees and providing education accessories in their current school.v.Both parents were to share in giving the minors pocket money; agree on picking and dropping the minors to and from school to facilitate sharing of transport expenses.vi.The clothing expenses were to be shared by both parents equally.vii.The medical expenses were to be shared equally.

20. Five years after the judgement, the appellant filed Notice to Show Cause (NTSC) dated August 21, 2021 seeking for cause by the respondent as to why execution should not issue for failure to pay Kshs 286,300/= being the amount for school fees and other shared responsibilities in pursuance with the judgement delivered on August 19, 2016 plus interests and execution costs. The respondent filed an undated application for review of the judgement as follows:-i.That the Notice to show cost dated August 21, 2021 for Kshs 286,300/= be stayed.ii.That the respondent be granted access to the minors visitation rights and partial custody and also modify the orders of the court issued on August 31, 2016. iii.That the children’s officer be directed to visit the residence where the minors stayed with the mother and file his report in court.

21. The two applications were consolidated and heard together by Hon E N Angima who rendered her ruling on December 02, 2021 and ordered as follows:-a.That as for the Notice to Show Cause, the respondent who had defaulted payment of the minor’s school fees and other shared items to clear the arrears of Kshs 286,300/= in monthly instalments of Kshs 6,000/=.b.That the appellant do provide shelter, clothing and food during school holidays of the minor KMK as well as her academic accessories.c.The appellant’s parental responsibility be extended over KNK beyond her 18th birthday by paying for her accommodation and other academic needs.d.That the respondent do cater for the school fees of the minors in a school to be agreed on by both parties, provide health care and pay the utility bills.e.That the respondent do pay the minor’s school fees for University education.

22. In her ruling regarding the NTSC, the learned magistrate said that in the event that the respondent’s default on the payment of the arrears, the appellant was at liberty to execute which legal remedy is a right of the appellant. However, the appellant’s grievance in this appeal is that the orders were oppressive on her part because it will take five (5) years to clear the arrears while she has already spent the said sum in paying school fees for the minors for the last several years.

23. The respondent had said he has been remitting to the appellant the sums required for school fees but the court found that this was not correct since no evidence of such payments was adduced. The court found that the respondent had failed to comply with the orders of the court for a period of five (5) years. Having so defaulted without good cause, and made the appellant meet her own share of parental responsibility plus that of the respondent, I am of the considered view that the court treated the respondent too leniently and placed the burden on the appellant. Once a court of law has made an order the said order must be obeyed and failure to obey may lead to the respondent being punished for contempt of court. If the respondent was going through hardships or if the appellant had taken the minors to an expensive school as he alleged (not agreed on by the parties), the respondent ought to have approached the court at the earliest time possible and represented his grievances. It was wrong for him to abdicate his part of the parental responsibility contrary to the judgement of the court. This is the more reason why the honourable magistrate ought to have given a shorter period for clearing the arrears. The prolonged delay of clearing the arrears does not only cause financial hardship on the appellant but it is not in consonance with the best interests of the child.

24. On perusal of the record, it is noted that the respondent in his attempt to convince the court that he could not afford to meet his part of the shared parental responsibility as ordered in the judgement, the respondent said that he had another family which he was taking care of. I have perused the attachments and noted that the annexed birth certificates are for the minors in this appeal which the magistrate considered in her ruling for the two applications before her. In my view, the said documents were meant to mislead the court in its determination to the effect that the respondent had another family at that time and as such had a heavy responsibility and could not afford to clear the arrears at once or within a shorter period. This act of dishonesty does not help the respondent to avoid his legal responsibility over the minors. Whether the respondent has another family or not, he has a duty to meet his legal obligations.

25. In my considered view that the magistrate failed to consider some important factors leading to issue of orders which had negative effects on the principle of the best interests of the child

26. In matters concerning a child, it is a constitutional imperative that of paramount importance is the best interests of the child. To that extent, Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. This position has been enshrined in the Children’s Act in section 4 which provides for the welfare of the child. Section 4(2) and (3) of theChildren’s Act provides:-2In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.3All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act 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;c.Secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

27. Section 94(1) of the Children’s Act stipulates the considerations by which the court shall be guided when making an order for financial provision for maintenance of a child. These considerations include inter alia:a.The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future;b.The financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;c.The financial needs of the child and the child’s current circumstances;

28. As regards review of the issue of shared parental responsibility, the court took into account the fact that the cost of living had gone up over the years since the judgement was delivered five (5) years earlier. The fact that the children lived with their mother in a jointly owned residence of the parties is a factor that is supposed to serve the purpose of easing the burden of parental responsibility for both parents and not for one as against the other. The court appropriately applied Article 53 (1) of the Constitution and Section 94 (1) of the Children’s Act in reviewing the orders on shared parental responsibility.

29. The appellant in her application for review did not convince the court that removal of the responsibility of providing accommodation and academic accessories for the child at the University known as KNK or any other responsibility was justified. The magistrate orders for review were based on the law and the evidence of the parties.

30. I find no reason to interfere with the orders made by the court below on 02/12/2021 in regard to shared parental responsibility.

31. In conclusion, this court partly allows the appeal and makes the following orders:-a.That the orders made on December 2, 2021 in regard to the Notice to Show Cause dated August 21, 2021 are hereby set aside.b.That the respondent shall clear the arrears of Kshs 286,300/= from the date of the ruling of the court below at the rate of Kshs 20,000/= per month starting from December 2, 2021 until full payment is made , and in default execution to issue.c.That the order for shared responsibility made on December 02, 2021 are hereby upheld.d.That each party shall meet their own costs.

32. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 8THDAY OF DECEMBER, 2022. F MUCHEMIJUDGEJudgement delivered through video link this 8thday of December, 2022