[2023] KEHC 27522 (KLR)

PMN v ANG (Civil Appeal 137 of 2020) [2023] KEHC 27522 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27522 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 137 of 2020

DO Chepkwony, J

November 21, 2023

Between

PMN

Appellant

and

ANG

Respondent

(Being an appeal from Judgment and Decree of Honourable J. A. Agonda (Senior Resident Magistrate) in Ruiru Children’s Case No.20 of 2019)

Judgment

1. By way of background and in order to provide context, the parties herein are biological parents of IN born on 2nd May, 2015 and ZW born on 18th May, 2017. They filed a Divorce suit following their marital issues and a maintenance case before the Subordinate court herein.

2. In the Plaint, the Respondent herein as the mother of the two issues sought to have full sole custody, care and control of the two children; for the Defendant to be ordered to provide school fees and related expenses as well as monthly maintenance for the children.

3. The Appellant filed Statement of Defence and Counterclaim wherein he sought to have the suit dismissed with costs. He also sought for partial custody of the children during school holidays, visitation rights on alternating weekends and for the Respondent to be ordered to meet her parental obligation such as contribution to education, school and household expenses.

4. The parties testified in court and later filed their respective submissions in support of their positions. Having heard them and analysed their respective submissions, the trial court delivered its Judgment on the matter whereby it entered Judgment and made the following orders:-a.Both parties have joint custody of the children herein and the Plaintiff is granted actual and physical custody of the children of the union.b.The Defendant shall have reasonable right to access every alternate weekend from Saturday 10. 00 am to Sunday 5. 00 p.m and half of the school holidays picking and dropping point will be on a neutral place to be decided by Counsel for parties herein.c.The Defendant will pay school fees and school related expenses for the children herein and provide comprehensive medical cover for the children herein to be agreed by the parties herein with the assistance of their Counsel on record.d.The Plaintiff to cater for shelter, food, electricity, water, good grooming, entertainment and other miscellaneous expenses.e.The Defendant shall remit children monthly maintenance of Kshs 40,000/= per month payable to the Plaintiff on or before the 5th day of every month starting November, 2020. f.This being a matter brought on behalf of the child, each party shall bear their own costs and shall be at liberty to apply.

5. Aggrieved by the said Judgment and orders therefrom, the Appellant filed this appeal vide a Memorandum of Appeal dated 3rd November, 2020 wherein he seeks the following orders:-a.That the Appellant’s appeal on the maintenance be allowed.b.That the Orders that the Defendant does remit children monthly maintenance of Kshs 40,000/= payable to the Plaintiff on or before the 5th day of every month starting November 2020 be set aside and/or varied.c.That the Orders (c ) and (d) in the impugned Magistrate Court judgment amount to complete and sufficient provision of the needs of the minor.d.That the costs of this Appeal be awarded to the Appellant in any event.e.Such other and/or further relief as this Honourable court may deem to just to grant.

6. The Appeal was admitted for hearing on 5th October, 2021 and parties directed to dispose the same by way of written submissions which were duly filed. In the Appellant’s Submissions filed on 30th March, 2023, the main ground of Appeal is that the monthly maintenance amount of Kshs. 40,000/= is excessive given that the apportionment of parental contribution under the Constitution should be equal. According to the Appellant, he cannot be coerced to provide for his children as he would naturally take care of them physically, emotionally and financially. He confirms that he is ready and has undertaken to pay for their school fees until university level without any coercion from the court.

7. On the maintenance amount of Kshs. 40,000/= which the Appellant was ordered by the trial court to pay, he submits that the amount is excessive given that his net salary is only Kshs. 53,000/=. He further states that by ordering him to pay this amount is equivalent to shifting the Respondent’s contribution him and yet he has other needs such as his own new family, parents whom he takes care of, rent, food, electricity, water and clothing.

8. In her Submissions filed on 25th May, 2023, the Respondent on the other hand acknowledges that parental responsibility is meant to be shared between parents as they have an equal task to support their children. The Respondent submits that she provided her payslip to court which showed her net salary to be Kshs. 21,440/= and which she struggles with to maintain herself, the children and other responsibilities assigned to her by the court. She holds that the court ordered her to pay for shelter, food, electricity, water, good grooming, entertainment and other miscellaneous expenses which are of substantial amount.

9. It is the Respondent’s contention that the trial court pointed out that the Appellant did not disclose to the court his full earnings which was deliberate. On the second issue, the Respondent submits that the Appellant also failed to attach the Decree to the Record of Appeal which makes the Appeal fatally defective and should thus be struck out.

Analysis and Determination 10. This being a first appeal, it is the duty of this court to re-evaluate and reanalyse the evidence herein so as to establish whether the trial court erred either in law or fact in making its determination.

11. From the two sets of Submissions , the issues that arise for determination is whether the Appeal has merit to warrant the orders sought are as follows;a.Whether a Decree ought to have been filed in the Record of Appeal.b.Whether the amount of Kshs 40,000/= is excessive given the circumstances of the case.

Whether Decree ought to have been filed in the Record of Appeal 12. In this case, in its submissions, the Respondent stated that the failure to include the Decree to the Record of Appeal and contrary to the provisions of Order 42 Rule 2 of the Civil Procedure Rules which provides as follows:-“Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such a time the court may order, and the court need not consider whether to reject appeal summarily under section 79B of Act until copy is filed”

13. In this court’s view, the Respondent ought to have raised this issue immediately the appeal was lodged by filing an application seeking to strike out the Appeal for want of Decree in the Record of Appeal. It is therefore too late in time to raise this at hearing. The court is guided on this by the decision in the Court of Appeal decision in the case of Richard Ncharpi Leiyagu –vs- Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR, Civil Appeal No.18 of 2013, where it has stated as follows:-“Whereas we underscore the importance of a party filling a complete Record of Appeal, we are of the view that the respondents too could have filed the documents that were left out; but more importantly the respondents could have applied to strike out the appeal. Raising the issue at the hearing cannot aid the respondents because nowadays pendulums have swung and the courts have shifted towards addressing substantive justice and no longer worship at the altar of technicalities. “

14. For this reason, the issue of the failure to include the Decree in the Record of Appeal being fatal as raised by the Respondent has been overtaken by events and therefore fails on account of it being a technical effect that would not affect the substantive justice of this case.

Whether the amount of kshs 40000 is excessive given the circumstances of the case 15. In children matters, it is crucial for courts to ensure that the best interests of the child are safeguarded in accordance to Article 53(2) of the Constitution of Kenya, 2010 which provides that:-“A child’s best interests are of paramount importance in every matter concerning the child”.

16. And under Section 4(2) and (3) of the Children Act (the Act) which provide that:-(2)In 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.(3)All 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.

17. The law on maintenance of a child is contained in the Constitution of Kenya, 2010 and the Children Act. Article 53 of the Constitution provides that:-53. (1)Every child has the right–(e)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;

18. Section 94 of the Children’s Act stipulates the consideration by what the court shall be guided when making an order for financial problem for maintenance of a child. They include interalia:-a.The income or earning capacity, property and other personal resources which the parties or any other person in where favour the court proposes to make an order , have, or are likely to have in the foreseeable future.b.The personal 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 he child’s current circumstances.

19. From these provisions, the parent who is granted legal custody of a child is liable to pay child maintenance. This is the reason why courts in matters involving children first grant joint legal custody before proceeding to deal with actual custody of a child and maintenance.

20. Upon considering all these factors, it is legally expected that parents of a child bear equal responsibility in taking care of the child(ren). Where one or both parents neglect their parental responsibilities, the court then comes in to issue maintenance orders so as to afford the child(ren) care and protection and ensure the best interest of the child(ren) have been realized. It must however be noted that such maintenance orders are not meant to punish or oppress any one parent but are meant to ensure that the needs of the child (ren) are met. In the case of SKM –vs- MWI [2015] eKLR, Musyoka, J. expressed himself thus:“Maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the child or children in question, while at the same time respecting the financial status of the parent. A child can only be maintained within the means of the parent in question”.

21. In this case, the Appellant argues that the maintenance amount of Kshs. 40,000/= which the trial court ordered him to pay was excessive given that he had indicated his income to be Kshs. 53,000/= after his loan deductions. However, upon perusal of the record it is quite clear that the Appellant has always been adamant to provide his payslip or documents. It is also clear that the Affidavit of means and the payslip he attached were contradictory which meant that he was concealing information about his income which is known to the Respondent as they had been husband and wife.

22. On her part, the Respondent has proved to be honest and provided her payslips which indicate she is a teacher earning Kshs. 21,440/= per month after loan deductions. It is not enough for the Appellant to state that he gets Kshs. 53,000/= as income. He must prove this amount through the production of his payslips or any other document, which he has not done to date.

23. Be that as it may, it is trite law that he who alleges must prove. Section 107 of the Evidence Act provides:-[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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.Section 108 goes on to provide as follows:-[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. “

24. The Appellant has not proved that he is not able to raise the maintenance amount of Kshs.53,000. 00 as set out by the trial court. All he has stated is that he has other needs including his new family, his parents and other home expenses. Therefore, the court finds that the trial court did not make any error either in law or principle to warrant any interference of this court.

25. In the upshot, this Appeal is hereby dismissed. Costs to be in the cause.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS …21ST… DAY OF …NOVEMBER…, 2023. D.O CHEPKWONYJUDGEIn the presence of:Mr. Chengecha counsel for the AppellantMr. Mulinge counsel for RespondentCourt Assistant - Martin