https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/336

PA v GIO (Children's Case E002 of 2023) [2026] KEMC 336 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEMC 336 (KLR) Republic of Kenya In the Malaba Law Courts Children's Case E002 of 2023 AZ Ogange, RM July 22, 2026 Between PA Plaintiff and GIO Defendant Ruling 1.What is before me for determination is the Plaintiff’s application dated 18th May 2026 in which the Applicant seeks the following orders: -a.That the Respondent be cited for contempt of court for willful disobedience of court orders issued on 27th March 2024.b.That the Respondent be compelled to comply with maintenance orders of Kshs. 6,000/= per month, school fees and medical cover.c.That the Respondent be compelled to clear all accrued maintenance arrears.d.That the Respondent be restrained from visiting the minors outside structured access arrangements without supervision and notice.e.That the Respondent be directed to cease any disclosure of minor’s identities in pleadings.f.Costs of the application be provided for. 2.The Application is supported by the supporting affidavit of Phidelis Atte wherein it is deponed that the Honorable Court delivered judgment directing the Respondent to pay Kshs. 6,000/= monthly maintenance, cater for school fees, provide a medical cover and have supervised access of the minors. That the Respondent has failed to comply with the said orders and made toke payments totaling to Kshs. 1,000/=. That the Respondent makes selective and irregular payments to the minor’s school in violation of the court order. That the defendant further makes impromptu visits to the minors in school which the Plaintiff learns of upon the minors reporting to her and in violation of the supervised access orders. That the Respondent must thus be cited for contempt of court and compelled to comply with orders of the court. 3.The application is opposed vide a replying affidavit sworn on 19th June 2026 wherein it is deponed that the Respondent has no source of income at all thus hampering his ability to pay for the education and maintenance of his children and it is not his intention to disobey court orders and he makes an effort to cater for the minor despite his meagre earnings. That the Plaintiff is employed, a civil servant and Assistant Chief with a steady salary and allowances. That the Plaintiff has remarried and lives with her husband who equally has a steady income and compared to him the Plaintiff is better placed to take care of the needs of the minors. That the Plaintiff’s actions in transferring one minor from one school to another is a calculated move to make the Respondent appear as if he is in contempt of court. That incarceration will serve no purpose and will only deny the children access to their father. 4.The Plaintiff has filed a further affidavit sworn on the 22nd day of June 2026 wherein it is deponed that the Respondent does not dispute existence of the judgment and subsisting court orders and admits that he has not complied fully with these orders. That the averments that the Respondent lacks steady income does not suspend the court orders. That if the Respondent considered himself unable to comply with the court orders he ought to have applied for variation before accumulating arrears. That no receipt for payment of school fees has been filed. That the Respondent’s allegations regarding her income and marriage do not relieve the Respondent of his independent legal obligation to maintain his children. That she has not denied the Respondent access only that the same ought to be supervised as per the court order. 5.This matter came up for directions on 3rd June 2026 when parties agreed that the application be canvassed by way of written submissions. The matter was mentioned on 17th June 2026 when both parties had filed and exchanged submissions and the court reserved the matter for ruling on 22nd July 2026. I have read and considered those submissions. 6.To this court there is only one issue for determination and that is whether the respondent is in contempt of the judgment and orders of this court delivered on 27th March 2024. 7.The law on civil contempt is well settled. An applicant must demonstrate that first there existed a valid court order which was clear, certain and unambiguous; secondly the Respondent had knowledge of the order; thirdly, the Respondent acted in breach of the order and lastly that such breach was willful and deliberate. 8.There is no dispute that this court delivered its judgment on 27th March 2024 in the presence of both parties. Consequently, the Respondent had actual knowledge of the judgment and the consequential orders issued therein. The terms of those orders were clear and unequivocal leaving no room for misunderstanding or differing interpretation. 9.The Respondent does not deny the existence of the judgment and the orders made by the court. Equally he does not deny that he has failed to comply with them. His principal explanation is that he lacks a source of income and that the applicant is financially better placed, being a civil servant and married to a husband with a steady income, to cater for the children’s needs. He further urges the court to consider that his incarceration would deprive the children of their father. 10.These explanations do not constitute a defence for contempt proceedings. A court order remains binding unless it is set aside, varied or stayed by a court of competent jurisdiction. A party cannot unilaterally decide whether or not to comply with a valid court order on the basis of personal opinion, financial circumstances or perceived ability of the other party to shoulder the obligations. If indeed the Respondent was unable to comply with the orders, the proper course would have been to move the court for appropriate variation or review. He did neither. 11.The Respondent alleges that he paid the children’s school fees and avers that he annexed relevant receipts. However, no such receipts appear on the Court record and the allegation therefore remains unsubstantiated. 12.It is also not in dispute that the Respondent has only remitted Kshs. 1,000/= to the Plaintiff for the upkeep of the minors since the year 2024. 13.The Respondent further contends that the applicant transferred the children to different schools with the calculated intention of preventing him from paying their school fees. The applicant has however rebutted that allegation by explaining that the transfer was necessitated by medical considerations and has annexed supporting medical documentation. The Respondent has not placed any evidence before the court to discredit that explanation. 14.It is equally uncontroverted that the Respondent acted in breach of the terms governing supervised access as set out in the court’s orders. 15.On the material before court. The Respondent’s non-compliance is apparent and undisputed. His continued failure to obey the orders, despite having full knowledge of them demonstrates a conscious and deliberate disregard of the authority of this Court. The court is therefore satisfied that the breach was not inadvertent or accident but it was willful. 16.In CM v DN [2021] KEHC 2991 (KLR) the High Court when faced with circumstances akin to this one held as follows:-16.However, before a court could find one guilty of contempt, it is incumbent upon the applicant to prove certain salient elements expressed in the case of Katsuri Ltd vs Kapurchand Depar Shah (2016) e KLR as follows;(1)Terms of the order alleged to have been disobeyed must be clear, unambiguous and binding on the defendant.(2)The defendant had knowledge or proper notice of the terms of the order(3)The defendant has acted in breach of the terms of the order(4)The defendant’s conduct was deliberate17.In the instant case, the respondent was aware of the orders of 24th August, 2020 which he acknowledged in his affidavit; Further, the order to pay school fees and other related expenses as per the ruling f 17th May, 2020 were clear and unambiguous a fact admitted in the replying affidavit and his counsel’s submission that he was aware of his obligation but he had been hindered by the death of his father.18.It is an admitted fact that the defendant acted in breach of the orders. He admitted that he has not honored fully the court order due to financial constraints. Is he in genuine financial constraints or deliberate refusal?19.In the case of RepublicVs City Council Nairobi and 2 Others Exparte Kaka Travelers Cooperative Savings and Credit ltd (2012) e KLR the court held that to commit a party for contempt, there must be deliberate and willful disobedience of a court order. Also, in the case of Republic Vs Cabinet Secretary, Ministry of Education and Another exparte Thadayo Obando (2018) e KLAR the court stated that, to sustain an order for contempt of court, an order must be clear and unambiguous. Similarly, the Supreme Court in Republic Vs Ahmed Abolfathi Mohamed and Another Cr Application No 2 /2018 held that to commit for contempt of court, it must be proved that a person has willfully and deliberately violated a court order. See also Michael Sistu Mwaura Kamau Vs Director of Public Prosecution and 2 others (2018) e KLR where the court emphasized that a party cited for contempt must be made aware of the order alleged to have been disobeyed.20.The last element which is very crucial is whether the failure to pay school fees and other related expenses was deliberate. According to the applicant, the respondent/ appellant is earning over kshs 450,000 per month, he is a contractor and farmer. However, no evidence was tendered to prove such sources of income and the amount earned. On the other hand, the respondent did not dispute earning kshs450,000 nor engaging in contracts nor farming. It was incumbent upon the respondent to show how much he is earning and the commitments if any. He ought to have filed an affidavit of means indicating his worthiness. From the lower court proceedings and the judgment of the high court, both parties are engaged in gainful employment through which they generate monthly income which is not denied.21.It is upon a party claiming inability to prove that his sources of income are genuinely depleted but not stage managed by say overcommitting one’s whole salary to avoid parental responsibility. Failure to disclose his sources of income more especially his monthly income will leave this court to believe that the respondent is deliberately refusing to honor the court order.22.Court orders are sacrosanct and are not issued in vain. They are meant to confer and spur confidence in the judicial and legal system. Parties cannot loosely be left to choose what to obey and when to obey a court order. Courts must act firmly against any acts of disobedience to court orders. I do not think the unfortunate death of the respondent’s father could make the respondent abdicate parental responsibility over his children. The best interests of a child surpass any other interest. The respondent was aware of his obligation but he chose to ignore. This is not the first time he is deliberately ignoring a court order in this proceeding.23.Accordingly, for the reasons above stated, the respondent is hereby found guilty of contempt of court. He is given 30 days within which to clear the outstanding school fees and related expenses plus maintenance if any in default he shall pay a fine of kshs100,000 or serve 30 days. Mention on 28th October 2021 to confirm compliance. 17.The Court therefore finds the respondent in contempt of the court. With regard to prayer 2 to 5 of the application, the court notes that the same are consequential reliefs aimed at enforcing this court’s judgment through the contempt jurisdiction of the court and on that basis the prayers are disallowed. 18.With regard to prayer 6, the court has considered the issue raised regarding disclosure of the names of the minors. The court finds nothing improper or prejudicial in the circumstances of this case. The children are the subject of proceedings, and reference to their names serves only to identify the beneficiaries of the court’s orders. There is no evidence that the disclosure was made for an improper purpose or in a manner calculated to expose the children to harm of prejudice. Accordingly, the court finds no basis for faulting the Respondent on that account. 19.The upshot of my findings therefore is that:-a.The Respondent is found guilty of contempt of court. He is given forty five (45) days within which to clear the outstanding school fees and related expenses plus maintenance and in default he shall pay of a fine of Kshs. 70,000/= or serve sixty days imprisonment.b.Prayers 2 to 7 of the application are disallowed.c.This being a family matter each party shall bear its own costs of the applicationd.The matter shall be mentioned on 9th September2026 to confirm compliance. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATE’S COURT THIS 22ND DAY OF JULY, 2026.In the Presence ofthe PlaintiffMr. Ashioya for the DefendantCourt Assistant: Paul OtienoA.Z. OGANGERESIDENT MAGISTRATE22.07.2026