[2023] KEHC 23671 (KLR)

Ocharo v Mong'are (Civil Appeal E019 of 2023) [2023] KEHC 23671 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23671 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E019 of 2023

WA Okwany, J

October 19, 2023

Between

Elijah Ondieki Ocharo

Appellant

and

Annah Nyakerario Mong'are

Respondent

(Being an Appeal from the Judgment and Order in Nyamira Chief Magistrates’ Children’s Case No. E030 of 2022 delivered by Hon. C.W. Waswa, Senior Resident Magistrate on 5th May 2023)

Judgment

1. The Appellant herein was the Defendant before the Lower Court where the Respondent sued him in respect to the upkeep of their child ZBO (particulars withheld). The Respondent sought the following orders in the Lower Court: -a.Upkeep at Kshs. 310,000/= per year.b.Entertainment – KSHS. 500,000/=c.Loan – Kshs. 36,000/=d.Costs and other reliefs as ordered by the Court.

2. The trial court referred the matter to Mediation and on 14th March 2023, parties entered into a partial settlement agreement as follows: -a.That the parties share school fees equally.b.That the Appellant (Defendant) will cater for medical expenses.c.That the Respondent (Plaintiff) will take up shelter expenses.

3. Parties were however unable to agree on the issue of the mobile loan That the Respondent obtained during her stay with the Appellant. An agreement was also not reached on the aspect of the said child’s clothing expenses. The matter was then referred back to the trial court for determination.

4. Through an Order issued on 5th May 2023, the trial court directed the Appellant (Defendant) to cater for the minor’s food expenses which was assessed at Kshs. 10,000/=. The said food expenses were to be paid on or before the 5th day of every month. The Respondent was ordered to cater for the minor’s clothing needs.

5. Dissatisfied with the decision of the trial court, the Appellant instituted the present Appeal through a Memorandum of Appeal dated 29th May 2023 wherein he listed the following grounds: -1. That the Learned Trial Magistrate erred in law by issuing orders without hearing the parties.

2. That the Learned Trial Magistrate erred in law by bestowing full parental responsibility on the Appellant with minimal contribution on the Respondent.

3. That the Learned Trial Magistrate erred in law in failing to take into account the fact That the Appellant and the Respondent have substantially agreed on most of the issues during mediation, save only on the issue of food and clothing.

4. That the Learned Trial Magistrate erred in law and in fact in failing to consider the circumstances of the case, particularly the age of the minor and the fact That the Appellant is unemployed by issuing orders for maintenance of Kshs. 10,000/= which amount is excessive and unsustainable.

5. That the Learned Trial Magistrate erred in law and fact in failing to consider the principles of granting maintenance enshrined in the provisions of the Children’s Act No. 8 of 2001.

6. That the Learned Trial Magistrate erred in law and in fact and misdirected himself by ordering the Appellant to provide for the minor beyond his financial capacity and against the weight of evidence.

7. That the Learned Trial Magistrate’s judgment was harsh, punitive and biased against the Appellant and was against the weight of evidence and law.

8. That the Learned Trial Magistrate erred in law and fact in failing to consider That parental responsibility was the obligation equally shared by both parents.

9. That the Learned Trial Magistrate erred in law and fact in arriving at the entire judgment on wrong principles of law.

6. The Appeal was canvassed by way of written submissions.

Appellant’s Submissions 7. The Appellant submitted That such the matter should have been determined in a manner That promotes the rights and the interests of the child as spelt out under Article 53 (2) of the Constitution and Sections 4(2) and (3) of the Children’s Act. It was submitted That maintenance was an aspect of parental care That ought to be shouldered by both parents and That maintenance should not be punitive or oppressive to either party. Reference was made to the decision in SKM vs MWI [2015] eKLR. It was further submitted That the trial court should have considered the provisions of Section 94 (1) of the Children’s Act in determining the assessment of the child’s monthly food expenses at Kshs. 10,000/=.

8. The Appellant observed That the trial court did not conduct a trial but instead relied solely on pleadings in arriving at its decision. He submitted That the needs of the minor should be balanced with the financial capabilities of her parents as was held in the cases of AAJ vs. AA suing through MM (2018) eKLR and Crispus Maghangha Mzae vs. Mary Mukhwana Kwanusu HCDC No. 58 of 2004.

9. The Appellant argued it is unjust to order for monthly maintenance That is exceeds a party’s financial ability as such an order would only increase the animosity between the parties, contrary to the best interests of the child. He urged the Court to reduce the amount for monthly food expense to Kshs. 3,000/=.

Respondent’s Submissions 10. The Respondent, who acted in person, submitted That parental responsibility was a joint parental obligation as was held in the case of PKM v ANM. She submitted That the trial court’s findings were based on sound legal principles. She added That the award of Kshs. 10,000/= for monthly food expenses was not excessive considering That she spends Kshs. 15,000/= per the child’s food on account of his poor health and need for special diet.

11. It was submitted That it was not tenable for the child to await the conclusion of the court cases before the child can get upkeep when his needs kept accruing on a monthly basis. The Respondent further submitted That even though the Appellant had agreed to the terms of the Partial Mediation Settlement Agreement, he had so far not fulfilled any of his obligations under the said agreement. She noted That the parties entered into a further Mediation Settlement Agreement dated 30th May 2023 where she agreed to withdraw an assault case That she had against the Appellant and his family on condition That he would take her back and provide a home for her and their child. According to the Respondent, the Appellant had not honoured the terms of the second Mediation Agreement.

12. The Respondent submitted That the Appellant is a man of means who is capable of providing for the needs of the child. She added That the refusal to heed the terms of the Mediation Agreement left her with the all the responsibility of taking care of the child. She noted That reducing the monthly maintenance for food to Kshs. 3,000/= would be untenable bearing in mind the high cost of living. She urged the Court to make the following orders: -i.Monthly Food upkeep at Kshs. 10,000/=.ii.Accrued Medical bills at Kshs. 77,500/=.iii.The Appellant to enrol the child onto his medical cover.iv.Kshs. 5,000/= per month for shelter (presently accrued to Kshs. 60,000/=).v.The Appellant to pay Kshs. 36,000/= for the mobile loan.vi.That the Appellant will have access to the minor.vii.That the Appellant will cater for school fees and other school items.viii.That the Appellant will avoid violence when approached for the needs of the minor.ix.That the Court will adapt the mediation settlement agreement dated 30th May 2023 as a judgment of the Court.x.Costs of the cause.

Analysis and Determination 13. I have considered the Record of Appeal and the parties’ rival submissions. I find That the main issue for my determination is whether the Appeal is merited.

14. It is trite That the duty of a first appellate court is to consider the evidence tendered before the trial court, subject it to a fresh analysis in order to arrive at its own independent findings. In Selle and Another vs. Associated Motor Boat Company Ltd & Others [1968] 1EA 123 it was held thus: -“…. 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.”

15. It was not disputed That the child in question is the child of the Appellant and the Respondent as shown in the child’s birth certificate Serial No (particulars withheld). It was also not in dispute That the parties participated in a mediation process where several issues regarding the maintenance of the child were discussed and agreed upon. I have perused the Partial Settlement Agreement dated 14th March 2023 and I note That the parties agreed to jointly cater for the Child’s school fees when he attains school-going age. The Appellant also agreed to cater for the child’s medical expenses while the Respondent was to take up shelter expenses.

16. Mediation (Pilot Project) Rules, 2015, Section 16 provides as follows: -16. No appeal against settlement.“No appeal shall lie against a judgment or order of the Court arising from mediation.”

17. My finding is That having participated in the mediation process and having agreed on the terms of the partial settlement agreement of 14th March 2023, this Court cannot interfere with the trial court’s order of 5th May 2023 adopting the said agreement unless it is demonstrated That there are grounds justifying its setting aside. This is because a Mediation Agreement takes the form of a contractual agreement where parties enter into a mutual arrangement That is then adopted in court as a consent order. This was the finding in the English case of Purcel V. F. C. Trigell Ltd, (trading as Southern Window and General Cleaning Co. and Another), [1970] 3 ALL ER671, where Winn, LJ, stated thus: -“It seems to me That, if a consent order is to be set aside, it can only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here That any matter That occurred would justify the setting aside or rectification of this order looked at as a contract.”

18. In Kiruga vs. Kiruga & Another [1988] KLR 348, the Court of Appeal 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.”

19. Having found That the Appellant did not lay any basis for setting aside the Mediation Settlement Agreement, I uphold the trial court’s order dated 5th May 2023 and find That the Appellant and the Respondent were bound by the terms of the said Agreement. Parties did not agree on the issue of the mobile app loan and provision of the child’s food and clothing which were then referred to the trial court for determination. This judgment will therefore deal only with the issues That were referred to the trial court for determination.

20. Article 53 of the Constitution outlines the overarching principle when dealing with children matters. It posits That the best interests of the child shall be of paramount importance in any determination made by a court of law. Article 53 provides as follows: -53. Children1. .........2. A child’s best interests are of paramount importance in every matter concerning the child.

21. This Article is further entrenched in Section 8 of the Children’s Act as follows: -8. Best interests of the child.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; andc.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.

4. The Cabinet Secretary shall issue guidelines to give effect to this section.

22. In MAA v ABS [2018] eKLR, the Court observed thus: -“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 paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein.”

23. It is therefore incumbent upon this Court to arrive at a decision That will promote the child’s best interests. The main contention in this appeal is the amount awarded in respect to the monthly food expenses which the Appellant claims to be on the higher side. It was the Appellant’s case That the Respondent did not prove That he is capable of catering for the same.

24. It is trite That That parental responsibility is a shared responsibility of both parents. Section 31 of the Children’s Act No. 29 of 2022 defines parental responsibility as follows: -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 immunization;vi.basic education; andvii.general guidance, social conduct and moral values;

25. Section 32 of the said Act provides That: -32. Equal Parental Responsibility1. 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 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. A person with parental responsibility over a child shall not act in any way That contravenes any order of a court of competent jurisdiction made with respect to the child under this Act or any other written law.

4. A person who has parental responsibility over a child may not relinquish or assign such responsibilities to another person.

5. Nothing in subsection (4) prevents a person from making temporary arrangements, during his or her absence, to allow a fit person to exercise his or her parental responsibilities over a child for and on his or her behalf.

6. The making of the temporary arrangements referred to in subsection (4) by a person shall not affect or limit That person’s liability arising from his or her failure to exercise his or her responsibility under this section.

26. The Act also stipulates That the duty of maintaining a child is a joint responsibility for both parents whether or not they are married. Section 110 of the Act states thus: -110. Unless the Court otherwise directs, and subject to any financial contribution ordered by the Court to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child—a.it shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other;

27. A maintenance agreement should therefore place equal and joint responsibility on both parents. Certain considerations must however be taken into account in determining parental responsibility. One such consideration is the financial capability of each parent. Section 114 outlines the considerations to be made as follows: -(2)Without prejudice to the generality of subsection (1), the Court shall consider all the circumstances of the case and be guided by the following considerations—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 immediate future;b.the financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future;c.the financial needs of the child and the child’s current circumstances;d.the income, if any, derived from the property of the child;e.any physical or mental disabilities, illness or medical condition of the child;f.the manner in which the child is being or was expected to be educated or trained;g.whether the respondent has assumed responsibility for the maintenance of the child and, if so, the extent to which, and the basis on which, he or she has assumed That responsibility, and the length of the period during which he has met That responsibility;h.whether the respondent assumed responsibility for the maintenance of the child knowing That the child was not his child;i.the liability of any other person to maintain the child;j.the liability of That person to maintain other children.

28. I have perused the trial court Record and noted That one of the documents filed alongside the Plaint was a tenancy agreement and pictures of residential property allegedly belonging to the Appellant. From the tenancy agreement, I note That the rent charged for each unit was Kshs. 5,000/= per month. It was the Respondent’s case That they also reared chickens during her stay with the Appellant and That they earned income from the said chickens. She filed photographs That depicted her tending to the chickens.

29. The said documents were however not produced in court as exhibits but formed part of the Record of Appeal. The photographs were also not authenticated or produced in court and cannot therefore be relied upon by this Court in arriving at a determination on the amount payable for the child’s food.

30. It is instructive to note That one of the grounds of appeal is the claim That the trial court did not conduct a hearing but instead went straight into delivering a judgment based on the pleadings. A perusal of the lower court record reveals That when the matter came up for hearing before the trial court on 20th April 2023, the Respondent moved the court to make a decision on the issue of food and clothing. On his part the Appellant consented to the Respondent’s proposal after which the court listed the matter for judgment on 5th May 2023.

31. My finding is That having agreed to the Respondent’s proposal That the issue of food and clothing be decided by the court, the Appellant cannot turn around and claim That the matter should have been subjected to a full hearing. My further finding is That considering That this is a child maintenance case in which the interest of the child is not only paramount but also immediate, the court made the right decision in determining the matter as it did. Furthermore, considering the fact That parties had agreed on almost all the substantive issues during the mediation process, I find That it was not necessary to conduct a full trial over the issue of food expenses.

32. It is also noteworthy That in a subsequent Mediation Settlement Agreement dated 30th May 2023, the Appellant agreed to take the Respondent and the child back and to provide a house for them as his family. This second agreement was made on condition That the Respondent would withdraw the criminal case That she had lodged against the Appellant. To my mind, the second mediation agreement is a testament That the Appellant is man of means who cannot turn around and state That he is not able to provide for his child’s upkeep to the tune of Kshs. 10,000 per month.

33. I have also compared the responsibilities apportioned to the Appellant with those of the Respondent in the Partial Mediation Settlement Agreement and the trial court’s impugned orders. It is my view That shelter which translates to monthly rental expenses together with clothing which arise from time to time, coupled with the fact That the Respondent lives with and cares for the child on a daily basis, all place a heavier responsibility on the Respondent when compared to the food and medical expenses allocated to the Appellant. My take is That the non-monetary responsibilities That are to be shouldered by the Respondent must also be considered in the distribution of parental responsibilities. I am guided by the decision in E.M.M vs M.O.O(2016) eKLR, where the court held thus: -“However equal responsibility does not mean equal and similar contribution as the income of each parent, and other non-monetary contribution must be borne in mind.”

34. Similarly, in M.K. vs C.K.K HCA. 51/2015 the court held: -“Parental responsibility is shared and not equal based on the financial position of each parent. The mother as the resident parent has a nurturing role to the children and the father to provide maintenance and upkeep of the children.”

35. It did not escape the attention of this court That the Appellant has not fulfilled any of the parental obligations apportioned to him in the Partial Mediation Settlement Agreement and by the trial court. In essence, the Appellant seeks this Court’s to review or set aside the assessment of the monthly food expense when he has not honoured any part of his obligations. In other words, the Appellant has not come to this court with clean hands. It was established That the child’s medical bills which formed part of the Appellant’s responsibilities have accrued as shown in the numerous complaints That the Respondent raised before this court every time the appeal came up for mention.

36. My finding is That the conduct of the Appellant portrays him as a ‘dead-beat’ father who is unwilling to support his own child and is hell-bent on frustrating the Respondent in every way possible including filing this appeal to challenge issues That had been agreed upon at mediation. The Appellant has not demonstrated any good will or willingness to provide for the child as required by the law, even after entering into the Partial Mediation Settlement Agreement. The Court is alive to the fact That the child’s best interests entail equal and joint responsibility. In M.O.A v H.A.O [2021] eKLR the court held That: -“Although parents may not have equal financial ability for the court to demand equal contribution, one must at least exhibit some sense of seriousness in making some contribution as a sign of good will That he or she is not geared towards overburdening the other parent for the sole purpose of punishing him or her using the best interest of a child principle or as a ground to settle scores out of marital differences.”

37. In the circumstances of this case I find That the trial court’s assessment of food expenses at Kshs. 10,000/= was fair and just and was made in consideration of the best interests of the child. I therefore find no reason to reduce the amount awarded as proposed by the Appellant.

38. Turning to the issue of the mobile app loan, I note That even though the Respondent was aggrieved by the trial court’s decision not to award her the amount she claimed in respect to the said loan, she did not file a Cross-Appeal challenging the said decision. I also note That her claim for payment of the mobile loan was not substantiated or proved as envisaged under Sections 107 – 109 of the Evidence Act which stipulate That: -107. Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove That those facts exist.

108. Incidence of burden.The burden of proof in a suit or proceeding lies on That person who would fail if no evidence at all were given on either side.

109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law That the proof of That fact shall lie on any particular person.

39. For the above reasons I am unable to make a determination in respect to the mobile app loan.

40. In sum, I find That the Appeal lacks merit and I therefore dismiss. I make the following final orders: -i.The terms of the Mediation Settlement Agreement dated 14th March 2023 from which the Court Order of 5th May 2023 emanated are hereby upheld.ii.The Appellant shall cater for the child’s monthly expenses for food at Kshs. 10,000/= to be remitted before the 5th day of every month as determined by the trial court.iii.The Appellant shall immediately include the minor into his medical cover and provide proof of having done so within 14 days from the date of this judgment.iv.The parties shall agree on visitation schedule and shall both create a conducive environment for the child’s upbringing That is devoid of violence.v.Mention on 2nd November 2023 to confirm compliance.

41. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 19TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE