[2024] KEHC 1830 (KLR)

PMF v OK (Civil Appeal E008 of 2021) [2024] KEHC 1830 (KLR) (26 February 2024) (Judgment)

Neutral citation: [2024] KEHC 1830 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E008 of 2021

MW Muigai, J

February 26, 2024

IN THE MATTER OF SMM, QSM, AK AND TMM(MINORS)

Between

PMF

Appellant

and

OK

Respondent

(An appeal against the Ruling of Hon. Martha Opanga (Senior Resident Magistrate) at Kangundo SPM’s Court Children Case No. 6 of 2020 delivered on 24th November, 2020)

Judgment

Background Proceedings at the Trial Court Notice of Motion 1. Vide a Notice of Motion under certificate of urgency dated 8th June,2020 and filed in the Trial Court on 9th June,2020, brought under Section 4, 6, 9, 23, 24 (1) (4) (5) and (8), 25 (2), 90 (1), 91, 92, 93, 97 and 98 of the Children’s Act No. 8 of 2001 Laws of Kenya wherein, the Respondent sought orders that:1. The application be certified urgent and heard ex-parte in the first instance.2. Pending the hearing and determination of this Application interpartes this Court to grant a temporary order of injunction restraining the Defendant/Respo-ndent by himself, his servants, agents and/or whomsoever in any means howsoever from visiting, invading, selling, alienating, sub-dividing, disposing off, leasing, transferring, charging, demolishing the structures thereof and/or in any other way interfering with the parcels of land being Title No. Donyo Sabuk/Koma Rock Block 1/3531x and Title No. Donyo Sabuk/Koma Rock Block 1/3531x and further from harassing, abusing, harming, threatening and or evicting the Plaintiff/Applicant and the children of the marriage therefrom.3. Pending the hearing and determination of this Application inter-partes, this Court to compel the Defendant/Respondent to contribute towards the monthly maintenance expenses, upkeep and education of the children, SMM, QSM, AKM and TMM.4. Pending the hearing and determination of the main suit, this Court to restrain the Defendant/Respondent by himself, his servants, agents and/or whomsoever in any means howsoever from visiting, invading, selling, alienating, sub-dividing, disposing off, leasing, transferring, charging, demolishing the structures thereof and/or in any other way interfering with the parcels of land being Title No. Donyo Sabuk/Koma Rock Block 1/3531x and Title No. Donyo Sabuk/Koma Rock Block 1/3531x and further from harassing, abusing, harming, threatening and or evicting the Plaintiff/Applicant and the Children of the marriage therefrom.5. Pending the hearing and determination of the main suit, this Court to compel the Defendant/Respondent to contribute towards the monthly maintenance expenses upkeep and education of the children, SMM, QSM, AKM and TMM.6. The O.C.S KBC Police Station do oversee the enforcement of Court orders issued.

2. The grounds for application were in the face of the said Application.

Supporting Affidavit 3. Vide a Supporting Affidavit Sworn by Olive Kagendo Peter Muriithi wherein she deposed that the Defendant/Respondent and herself contracted a marital union under Meru traditions and customs sometimes on or about 4th November,2005 (annexed and marked copy of an affidavit sworn by the Defendant/Respondent and herself).

4. It was her position that in the course of her marriage to the Defendant/Respondent, they were blessed with four (4) children, Namely SMM born on 16th February,2003 and currently aged 17 years old, QSM born on 10th November,2008 and currently aged 12 years, AKM born on 11th April,2014 aged 6 years old and TMM born on 3rd March,2020 and currently three (3) months old (annexed and marked copies of certificates of birth for the 1st to 3rd child and a notification of Birth for the 4th child)

5. She deponed that prior to her marriage to the Defendant/Respondent, she had been blessed with a child namely SMM whom the Defendant/Respondent accepted to be his father as illustrated in his Certificate of birth and assumed parental responsibility to him.

6. Deposing that the Defendant/Respondent, the children and herself resided in various places before acquiring and developing their matrimonial home in the properties being Title No. Donyo Sabuk/Koma Rock Block 1/3531x and Title No. Donyo Sabuk/Koma Rock Block 1/3531x (annexed and marked copies of the title Deeds for their matrimonial properties).

7. She lamented that though the Matrimonial properties are registered in the name of the Defendant/Respondent, she contributed substantially towards their acquisitions, development into her Matrimonial home. Further, that the children of the marriage and herself lived in the matrimonial home until sometimes in the year 2016 when the Defendant/Respondent deserted their matrimonial home leaving her with the children of the marriage abdicating his parental responsibilities towards their children leaving her to struggle single handedly to meet all the maintenance needs of the children.

8. It was her case that school fees for child in their respective schools are as follows: -i.SMM is in form 3 at [Particulars withheld] Secondary School with the school fees being Kshs. 25,000/= per term.ii.QSM is in Class 6 at [Pariculars withheld] Primary School with the school fees being Kshs. 25,000/- per term.iii.AK is in PP2 at [Pariculars withhheld] Academy with the school fees being Kshs. 28,000/= per term.

9. She deponed further that she was genuinely apprehensive of her children being denied access to the school when school opens in the event that the school fees will not have been paid and hence suffer having their education prematurely terminated.

10. Consequently, it was her position that further, the children needed basic needs, medical care, upkeep and general expenses which amount to at the very least 70,000/= per month tabulated as hereunder: Food – Kshs. 20,000/= per Month

House help - Kshs. 5,000/= per Month

Home clothing- Kshs. 5,000/= per Month

School fees- Kshs. 26,000/= per Month

School Stationary- Kshs. 1,000/= Per Month

Miscellaneous- Kshs. 3,000/= Per Month

Medical care- Kshs. 10,000/= Per Month

Total Kshs. 70,000/=

11. She deponed that on 6th June, 2020, the Defendant/Respondent invaded the matrimonial home and violently attempted to evict her and the children of the marriage and that the Defendant/Respondent occasioned violence while attempting to evict them from the matrimonial home and her first child SMM who tried to protect her from the Defendant/Respondent’s assault and herself sustained severe bodily injuries. They had sought medical attention (annexed and marked copy of their medical reports).

12. Deposing that her advocate on record advised her that properties though registered in the sole name of the Defendant/Respondent were acquired in the course of her marriage and she has beneficial interest thereof.

13. She was justifiably apprehensive and the children are psychologically traumatized in the unfortunate event that the Defendant/Respondent returns to the matrimonial home as he has sworn and see through with his threat of evicting them from the matrimonial properties.

Replying Affidavit 14. The Appellant in his replying affidavit opposed the application and deposed that SM was not his child with 2 different birth certificates [annexed and marked copies of birth certificate [Moffat] respectively].

15. He deposed that the last child is not his because he was born in 2020 while they got to know each other in 2008 and they were separated in 2010 and they have never been into any relationship again and that the child was born in 2020 actually it was offence for giving his name to the said child born with another man known to him (annexed and marked copy of the birth notification).

16. Deposing that they got married under customary marriage in 2008, which marriage lasted for 2 years and were separated in 2010 (annexed and marked copy of marriage affidavit).

17. He deposed that he did not agree to be father of SM and he still want the applicant charged she went on her own to falsify his signature to include him as the father of her son born out of wed lock giving him his name without his consent is actually an offence. Further that applicant did not contribute a single coin to develop the house she has put into task to prove her contribution in the acquisition and development of the property as she claimed.

18. He deponed that he had been in another marriage since 2010 to date he had other responsibilities of his children of the new marriage (Annexed and marked copies of birth certificates) as follows:i.Birth certificate of KM.ii.Birth certificate of SWiii.Birth certificate of PS

19. He claimed that he paid school fees as required but the child called SM under the Mother’s care has not been going to school since January, 2020 when he was found with illegal psychotropic substance in school (annexed and marked copy of letter from school).

20. He deposed that children responsibilities are for both parents and the Appellant must tell court what she will provide in life of her children against current situation where she is expecting the Respondent to literally take her responsibilities including those of children he did not sire.

21. It was his position that his kids shall get all basic needs since the mother has been sleeping with many men from the time they started staying together in 2008 until 2010 when he ran away for fear of contracting diseases. He therefore needed a DNA done to establish who are his biological kids and he was willing to take responsibilities as provided by the Children’s Act.

22. Lamenting, further that the Applicant cannot talk about matrimonial home when she is a new relationship with another man siring babies, the new husband must come and take care of his son. Opining that he sold the property even before orders were issued and informed the Applicant verbally of his willingness share the needs of the children as the Applicant is in a new relationship. He moved out of the life of the Applicant in the year 2009 after he realized that she was having intimate relationship with her former husband and other men and the property was not acquired then.

23. It was his case that he acquired this property in the year 2013 when he was not staying with the Applicant, so she has no beneficial right as she did not contribute anything in both buying and building this property. He deposed further that the Applicant and the children cannot be traumatized by his presence but instead they are traumatized by the number of men their mother brings in his home where he temporarily gave her. That now she is married he prayed that she should go and live in her new matrimonial home.

24. The matter was canvassed vide written submissions.

The Trial Court’s Ruling 25. The trial court vide its Ruling dated 24th November,2020 directed both parties to mediate the joint parental responsibility agreement in good faith and further that failure by either to do so will result in adverse orders being made against intransigent party. Both parties will be at liberty to apply for further orders to better effectuate the agreement.

26. Trial court further found that the plaintiff seemingly had lived on the two parcels of land mentioned in the course of the proceedings for at least 12 months prior to filing the suit therefore it was not proper for defendant to hastily sell the said parcels of land during the pendency of this suit and purport to transfer the same to a third party to the detriment of the plaintiff and her children thereby going against Section 23 (2) (a) (ii) of the Children Act to make matters worse he attempted to forcefully evict the plaintiff and her children therefrom without providing an alternative shelter. Court found that the plaintiff shall continue living on what she calls their matrimonial home.

Orders of the Trial Court 27. The Trial Court went ahead and issued the following orders that:1. The Applicant/ plaintiff and the Respondent/Defendant do appear before Kangundo sub-County Children’s Officer or her designate within two weeks from the date of this ruling, to work out through mediation, the details of shared parental responsibility. The agreement should cover the full areas of potential conflict including but not limited to what each party is to contribute, duties of each party is to perform, child care arrangements, education and extracurricular activities, religious issues and health issues.2. Both parties do mediate the joint parental responsibility agreement in good faith and further that failure by either to do so will result in adverse orders being made against intransigent party.3. Both parties will be at liberty to apply for further orders to better effectuate the agreement.4. Until the matter is fully determined the plaintiff shall continue living in what she calls their matrimonial home5. The costs of the application shall be in the cause.

The Appeal 28. Dissatisfied with the ruling, the Appellant vide Memorandum of Appeal dated 21st January,2021 and filed in court on 9th February,2021 wherein the Appellant sought the grounds that:a.The appeal be allowed and the ruling of the Senior Resident Magistrate’s Court Delivered on 24th November,2020 be set aside and the Application dated 7th August,2020 be allowed.b.The cost to abide the outcome of the appeal.

29. The appeal is premised on the following grounds namely that:a.The Learned Hon. Magistrate erred in law and in fact by failing to put into consideration the Application by the Appellant dated the 7th August,2020 despite giving directions that the same shall be heard simultaneously with that dated 8th June,2020. b.The learned Hon. Magistrate erred in law and fact by not considering the submissions of the applicant to the application.c.The Learned Hon. Magistrate erred in law and in fact by failing to realize that the Respondent did not rely to the application dated 7th August,2020 neither put submissions to the same as directed by court.d.The Learned Hon. Magistrate erred in law and in fact by giving an order in respect to the property Land Parcel Number Donyo Sabuk/Koma Rock Block 1/35318 and Donyo Sabuk/Koma Rock Block 1/35319 despite the same not being registered in the name of the Appellant but third party.e.The Learned Hon. Magistrate erred in law by violating the rights of a third party not before the court as a party or otherwise as enshrined under Article 40 of the Constitution of Kenya 2010.

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

Submissions Appellant’s submissions 31. The Appellant in his submission dated 3rd August,2012 and filed in Court on 13th October,2021 wherein Counsel for the Appellant raised an issue whether:a.The orders issued on 9th day of June,2020 and confirmed vide the Ruling of 24th November,2020 contravenes the rights of another person who is not a party to the dispute before this Honorable Court.

32. On the above issue, Counsel submitted that had the learned magistrate considered the replying affidavit of the appellant dated 18th June,2020 and his submissions to the application dated 7th June,2020 thereto dated 31st August,2020. As well as the Appellant’s Application dated 7th August,2020 and the Appellant’s submissions to the said application thereto 31st August,2020, the court would have arrived at a different conclusion.

33. Counsel placed credence on Article 40 (1) of the Constitution of Kenya 2010 and submitted that it spells out the protection of right to property.

34. Further, reliance was placed on Section 26 of the Land Registration Act, 2012 which provides:(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

35. It was submitted that all that piece of land known as Donyo Sabuk/Koma Rock Block 1/35318 and Donyo Sabuk/Koma Rock Block 1/35319 are not properties of the Appellant and that they are not registered in his name but in the name of other third parties who were not before Court.

36. He contended that courts are mandated by statute to consider a title document as prima facie evidence of ownership to land and as conclusive evidence of proprietorship to land that can only be challenged on grounds stipulated in the Act.

37. Counsel submitted that the appeal be allowed and the ruling of Senior Resident Magistrates Court delivered on the 24th November,2020 be set aside and the application dated 7th August,2020 be allowed and the cost abide the outcome of the appeal.

Respondents Submissions 38. The Respondent in her submissions dated 17th September,2021 and filed in court on 21st September,2021, wherein, counsel for the Respondent in his combination of the 1st to 3rd ground of Appeal submitted that in reference to page 136- 139 Record of Appeal at no juncture did the trial court direct that the Appellant’s Application dated 7th August,2020 be heard simultaneously with the Respondent’s application dated 8th June,2020.

39. It was submitted that the proceedings of the Honorable Trial Court Confirm that directions were given for the Appellant to serve the Respondent with the Application dated 7th August,2020 and parties to file their Affidavit of means. Contending that the Application was to be canvassed by way of filing submissions. He opined that the Appellant was represented at the Trial Court on all the days the suit was scheduled in Court and at no juncture did the Appellant’s Counsel bring to the Honorable Trial Court’s attention that the Appellant’s Application dated 7th August,2020 had not been canvassed nor response filed thereto.

40. It was the counsel submissions that a look at the documentary evidence confirms that the subject properties were registered in the name of the Appellant. Reference was made on Page 15 & 16 of the Record of Appeal and that the Appellant and the Respondent together with their children resided there at.

41. It was submitted that after the marital squabbles between the Appellant and the Respondent, the Appellant left the matrimonial home then forcefully attempted to evict the Respondent and their children therefrom. The Appellant to push his agenda of forcefully evicting the Respondent and the minors from their matrimonial home had the subject properties been transferred to one Alice Njoki Ndungu and title issued on 9th June,2020 in contravention to the trial court order.

42. It was the counsel’s contention that no sale Agreement has ever been produced to confirm that Alice Njoki Ndungu lawfully purchased the subject properties nor has the said Alice Njoki Ndungu ever been in possession of the subject properties.

43. Counsel opined that for the Respondent to protect her matrimonial properties among them the subject properties herein from being unlawfully disposed of by the Appellant, the Respondent filed a matrimonial property suit being HCCC No. 19 of 2020- Nairobi, OKPM Vs PMM and ANN where according to the counsel court granted temporary orders of injunction restraining the Respondents therein from dealing in any manner with the subject properties and further from evicting the Respondent herein therefrom reference was made to page 98 of the record of Appeal.

44. It was submitted further that the Respondent’s aim at the trial court is not on determination of ownership of the subject properties, which the trial Court has not made but on protection of the Children’s right to shelter. Reliance was made on Article 53 of the Constitution of Kenya 2010, Section 23 (2), 127 (2) of the Children’s Act No. 8 of 2001, Article 27 of the UN Convention on Rights of the Child and Article 25 (1) of the Universal Declaration of Human Rights on the child’s right to shelter.

45. Counsel quoted the cases of HCCC No. 8 of 2014 (OS)- Mombasa, HCCC No. 7 OF 2018- Meru, and Matrimonial Cause No. 3 of 2015- Nakuru and submitted that trial court did not determine ownership of the subject properties but proclaimed itself on rights of children to shelter which is within the subject properties.

46. It was submitted that the third party having not lodged any dissatisfaction on the Orders of the trial court, this Appeal should not engage in a fishing expedition to frame non-existent complaints. Averring that the law is clear that orders of the court binds parties thereto and any other person. Counsel relied on the cases of ELC Civil Suit No. 639 of 2015- Nairobi, the Registered Trustees of Sheikh Zayed Bin Sultan Al Nahyan Vs Pelican Engineering & Construction Company Ltd and ELC No. 251 of 2012- Nakuru, Skov Estate Limited & 5 Others Vs Agricultural Development Corporation & Another.

47. In the effect of allowing the Appellant’s Appeal, counsel submitted that the trial court acted justly in arriving at the Ruling delivered on 24th November,2020, the ruling did not determine the ownership of the subject properties but ensured that the Respondent and the Minors right to shelter is protected. Contending that the Appellant has not filed any Application for review and/or setting aside of the Orders of the Trial court.

48. It was the Respondent’s argument that the Appellant has in his Appeal and Submissions failed to reveal to this honorable Appeal Court that there are two (2) other suit dealing with ownership of the subject properties being High Court Civil Case No. 19 of 2020- Nairobi OKPM Vs PMM and ANN and SPMC ELC CASE No. 86 of 2020- KANNd Vs OKM which is inter alia in respect to ownership and cancellation of title to the properties in the name of ANN.

Determination/analysis 49. The Court considered the pleadings memorandum of appeal and Trial Court proceedings and Ruling with written submissions of parties filed through respective Counsel.A number of issues have been raised for determination and are subject of the appeal but are condensed as follows;a.Custody safety and well being of the children of the union between the Plaintiff & Defendantb.The application dated 7th August,2020 was not considered By Trial Courtc.The contested matrimonial home on the said property, its ownership, sale, transfer and occupation Donyo Sabuk/Koma Rock Block 1/3531x and Donyo Sabuk/Koma Rock Block 1/3531x.

50. The Plaintiff & Respondent were in a union under customary law evidenced by an affidavit sworn by both parties. During the subsistence of the union, they had 4 children 3 of whom through DNA testing are confirmed to be the Appellant’s biological children. The impugned Ruling of 24/11/2020 rightly sent both parties for mediation with/before the Children Officer as the Affidavit of Means filed were inconclusive. Clearly, the parties failed /did not attend mediation nor did either of the parties move the Trial Court to consider the issue of maintenance and upkeep of the children.

51. Although the matrimonial properties are registered in the name of the Defendant/Appellant, the Respondent stated that she contributed substantially towards their acquisition, development into her Matrimonial home. Further, that the children of the marriage and herself lived in the matrimonial home until sometimes in the year 2016 when the Defendant/Respondent deserted their matrimonial home leaving her with the children of the marriage abdicating his parental responsibilities towards their children leaving her to struggle single handedly to meet all the maintenance needs of the children.

52. Secondly, the Appellant resulted to selling the Land parcel where the matrimonial home is settled, then proceeded to evict the Respondent and children from their home and occasioned violence.

53. Thirdly, the appellant sought eviction of the Respondent and children to pave way for possession and acquisition by a 3rd Party Purchaser.

54. Fourthly, the Appellant seems to have abdicated his parental duty to ensure safety wellbeing of the children at least 3 biological children on food school fees and expenses transport clothing etc and quiet possession of the residence/matrimonial home.The law spells out vide Article 53 1 (e) & 2 of the Constitution as follows;to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not;A child’s best interests are of paramount importance in every matter concerning the child.Article 53 of the Constitution is amplified by the Children Act 2022 as follows;8. (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; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.11. (1)Every child has the right to parental care and Protection

55. Clearly, the law upholds matters regarding the welfare and well-being of children of utmost priority and importance above all other considerations. Therefore, in compliance with the law, the Trial Court prioritized the custody maintenance and protection of the children before other considerations of the Plaintiff and Defendant’s differences and/or fallout; division of matrimonial property and/or sale of land/ eviction.

56. The Trial Court was/is within the law in granting the orders in the Ruling of 24/11/2020. The matter regarding welfare of the children is still ending to date as Co -parent the Appellant who has sold the property to 3rd Party and tried evict the children did not make alternative arrangements to provide the children with shelter. The Appellant intimated that he paid school fees and one of the children was sent away from school after being found with substance abuse. Surely, the appellant and Respondent ought to seek medical help for the said child, counselling rehabilitation etc and not abandon the child.

57. With regard to the application dated 7th August,2020 it was not considered by Trial Court this Court finds from the Trial court record, the Court was moved to hear and determine Application Notice of Motion dated 8/6/2020 that culminated with the ruling of 24/11/2020. According to the proceedings the application of 7/8/2020 was to be served and response filed then to be canvassed through written submissions and affidavit of means filed by each party.

58. The contested matrimonial home on the said property, its ownership, sale, transfer and occupation Donyo Sabuk/Koma Rock Block 1/3531x and Donyo Sabuk/Koma Rock Block 1/3531x this is a matter that ought to be canvassed in the appropriate forum depending on the orders sought file for division of matrimonial property, file for use ,ownership and sale and transfer of land in ELC or await the determination of matter regarding welfare of children and thereafter pursue first shelter for the children, and the rest of the prayers sought follow thereafter. DispositionThe totality of the Trial Court record, submissions by parties, I find the Trial Court orders in line with the law on children protection welfare and well-being of paramount consideration.The Orders by the Trial Court are upheld save for the following amendments;a.Since the order for both parties/parents to pursue mediation on the joint parental responsibility Agreement was not effected; let parties through respective Counsel within reasonable timeline present Updated Affidavit of Means and/or proof of maintenance of the children to the Trial Court.b.Pending the hearing and determination of the custody maintenance and welfare of the children, temporary order of injunction is granted/extended restraining the Defendant/Respondent by himself, his servants, agents and/or whomsoever in any means howsoever from visiting, invading, selling, alienating, sub-dividing, disposing off, leasing, transferring, charging, demolishing the structures thereof and/or in any other way interfering with the parcels of land being Title No. Donyo Sabuk/Koma Rock Block 1/3531x and Title No. Donyo Sabuk/Koma Rock Block 1/3531x.c.A restraining order issues against the Appellant restraining him his agents and servants or representatives from harassing, abusing, harming, threatening and or evicting the Plaintiff/Applicant and the children of the marriage the said properties until determination of children welfare first.d.The Children Officer-Kangundo Sub County to interview and visit the Plaintiff, Defendant, children, visit school (s) matrimonial home etc. and compile comprehensive Report to aid the Trial Court in informed decision-making regarding best interests of the children.e.The Appellant and/or 3rd Party may pursue redress in ELC and Respondent may pursue division of matrimonial property.f.The Appeal is dismissed and Court file/matter remitted back to Chief Magistrate Kangundo Law Courts for further hearing and determination.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 26TH FEBRUARY, 2024 (VIRTUAL/PHY-SICAL CONFERENCE).M.W.MUIGAIJUDGEIn the Presence of:Mr. Munywoki - for the AppellantNo Appearance - for the RespondentGeoffrey/patrick - Court Assistant(s)