https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11355

PNI v MW (Suing as Mother and Next Friend to GJW & JW) (Family Appeal E005 of 2026) [2026] KEHC 11355 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11355 (KLR) Republic of Kenya In the High Court at Nakuru Family Appeal E005 of 2026 JM Nang'ea, J July 17, 2026 Between PNI Appellant and MW (Suing as Mother and Next Friend to GJW & JW) Respondent (Being an appeal from the decree of the Chief Magistrate’s Court at Nakuru( Hon.. C. M. Muhoro (SRM) arising from Judgement delivere on 3rd February, 2026 in Nakuru MCCHCC No. E178 of 2025) Judgment 1.This Appeal arises from the said lower court's Judgment dated 3/2/2026, by which orders regarding the welfare of children subject of the case, (“the minors”) were issued as follows;1.Custody of the minors be and is hereby granted to the Plaintiff. The Defendant shall have access and/or visitation rights. The Plaintiff and the Defendant shall agree on the access and/or visitation arrangements.2.Maintenance orders:i.School fees and other school related expenses, to be borne by the Defendant.ii.Medical care – to be born by the Defendant, when need arises.iii.Food – to be shared between the Plaintiff and the Defendant, with the Defendant remitting a sum of Kshs. 10,000/= per month towards the same.iv.Clothing – to be borne by the Plaintiff, when need arises.v.Shelter – to be provided by the Plaintiff as the minors will be in her custody.3.Each party to bear its own costs of the suit. 2.The background to the Appeal is that the Respondent sued the Appellant in the lower court seeking joint custody of the minors; monthly maintenance of Kshs. 30,000/= per month to cover food and general upkeep expenses; medical care; school fees and school-related expenses. The Respondent also prayed for legal fees reimbursement in the sum of Kshs. 200,000/=. 3.The Appellant filed defence denying the claim of his marriage to the Respondent. He concedes being the father of one of the minors (G. J. W.) and contends that when she met the Respondent, she had another child (J. W.) who she was taking care of. 4.Inter alia, the Appellant traversed all the other material particulars of the suit, putting the Respondent to strict proof. The trial court was urged to dismiss the suit with costs. 5.The suit was fully heard with the parties giving oral evidence underscoring their pleadings. The Respondent told the court inter alia that she lived with the Appellant together with whom she got one of the minors (G.J.W). The latter voluntarily assumed parental responsibility over the two minors by paying their school fees, medical expenses as well as providing her and the children with shelter and general upkeep. The Appellant is said to have allowed his name to be put in J.W’s certificate of birth, which he is in possession of. 6.According to the Respondent, the Appellant started abdicating his parental responsibility sometime in 2024 and also became violent to her, and had to pay her Kshs 50,000/= for her treatment for the assault. It is further stated that the Appellant refused to pay the minors’ school fees and cater for their general welfare. The court was told that the Respondent is a casual worker and earned a commission. Her own earnings are between Kshs 10,000/= - 15,000/= per month. The Respondent claimed that the Appellant has better financial means, being a businessman earning over Kshs. 100,000/= per month. 7.While conceding that one of the minors (J.W) was not sired by the Appellant, the Respondent testified that the former had for over 3 years taken care of the child as his own and thus voluntarily assumed parental responsibility in relation to him. 8.The Respondent gave a breakdown of their monthly bills as follows:a.Utility Bills Electricity & Water Monthly Kshs. 2,000/=b.Nanny Fees/Day care @ 200 per day Kshs. 6,000/=c.Food Breakfast Kshs. 200 x 30 days = Kshs. 6,000/=d.Food Lunch Kshs. 300 x 30 days = Kshs. 9,000/=e.Monthly Shopping approximately Kshs. 10,000/= a list can similarly be provided so that the defendant can avail the same.f.Food supper Kshs. 300 x 30 days = Kshs. 9,000/=g.Shelter Kshs. 5,000/=h.School Fees Kshs. 9,000/= 9.In support of her evidence, the Respondent tendered her bundle of documents filed in the matter. 10.The Appellant on his part told the court that he worked in a cyber café. He was married to the Respondent for 4 years, but they separated in October 2024. On 22/12/2024, he gave his estranged wife Kshs. 50,000/= to pay for the needs of one child (G. J. W.) he sired with her. The Appellant denied that the money was to pay for her medical costs arising from his alleged assault of her.As at the time of bringing the suit, the child was three (3) years old and was yet to enroll in school, according to the Appellant. The Appellant continued to contend that the other subject child (J. W.) was not his biological child and that the Respondent ought to have filed suit against the child's biological father. Nevertheless, he was sharing the cost of her maintenance with the Respondent. 11.Contrary to the Respondent's claim, the Appellant testified that the former is the one in possession of the children's birth records and had confirmed the fact in her statement recorded with the police over another case. The Appellant asserts that his name does not appear in J.W's birth certificate and challenged the Respondent to present evidence of his paternity in relation to the child. 12.The Appellant further told the court that, in law, both parties have equal parental responsibility in respect of the child they got together and so the Respondent should contribute her share. 13.In her impugned Judgment, the learned trial Magistrate found that it is in the best interests of the minors to continue to be in the custody of the Respondent considering their tender ages. The Appellant was, however, granted access and/or visitation rights arrangements of which would be agreed between the parties. 14.With respect to the claim for maintenance, the trial court found it undisputed that the minor named J.W. is not the Appellant's biological child. Notwithstanding, the court observed that the Appellant accepted the child as his own and provided upkeep since “2020/2021” when the couple started living together. Citing the provisions of Section 25(2) of the Children Act, the learned trial Magistrate found that the parties had cohabited for a requisite period of over twelve months during which the Appellant maintained J. W. and he therefore acquired parental responsibility over the child. 15.The court then issued orders as to maintenance of the children as set out at paragraph 1 of this Judgement. 16.The Appellant was aggrieved by the lower court's order and preferred this Appeal vide Memorandum of Appeal dated 12/2/2026, predicated upon the following 5 grounds;1.Error In Law And Fact (deceit): The learned Trial Magistrate erred in law and fact by finding that the Appellant assumed parental responsibility for the minor J.W. while failing to consider that such assumption was induced by the fraudulent misrepresentation and deceit of the Respondent, who led the Appellant to belief the child was her sister’s daughter.2.Lack Of Informed Consent: The learned Magistrate failed to appreciate that the Appellant’s provision of support during cohabitation was based on a mistake of fact regarding the child’s identity. Therefore, there was no voluntary or informed intent to assume the legal status of a parent to J.W. as required by the Children Act.3.Misdirection On The 12-month Rule: The learned Magistrate misapplied Section 25 of the Children Act by holding that cohabitation alone creates irrevocable parental responsibility, even where that cohabitation was entered into under false pretenses regarding the child’s lineage.4.Failure To Consider Evidence: The learned Magistrate erred by ignoring the Appellant’s testimony and evidence (contained in the proceedings) that the minor J.W. was born out of the Respondent’s previous marriage and has a known biological father who is alive and capable of providing maintenance.5.Constitutional Error: The learned Magistrate’s orders violate Article 53(1) (e) of the Constitution by shifting the mandatory duty of maintenance from the biological father to the Appellant, who is a third party. 17.The Appellant wants the court to set aside the Judgment on maintenance of J.W and grant any other suitable relief. Cross-appeal 18.The Respondent filed a Cross-Appeal mainly centered on the 50% to 50% parental responsibility ratio. She argues that the Appellant should make equal contribution of the household bill of Kshs. 60,000/=and further pay Kshs. 30,000/= towards maintenance costs among other reliefs. 19.The parties filed written submissions on both the main and cross-appeals. The Appellant complains of injustice in assessment of maintenance and determination of parental responsibility. The trial court is said to have relied on the Respondent's fraudulent misrepresentation that J.W was her niece. Although the issue of paternity had not been pleaded in the claim before the lower court, the Appellant submits that Article 159(2) (d) of the Constitution which prohibits undue regard to procedural technicalities in administration of justice comes to his aid. 20.On the Cross-Appeal, the Appellant feels that increment in maintenance costs as sought by the Respondent is not justified and that the figure claimed is grossly exaggerated. According to him, maintenance costs are based on financial ability by dint of Section of the 94 Children Act. 21.The Appellant therefore wants this court to either uphold or reduce the maintenance award of the lower court. He further wants DNA profiling on J.W to determine his paternity so that his biological father takes responsibility for his upkeep. 22.The Respondent’s Advocates in reply take issue with the Appellant for raising new evidence in the Appeal regarding paternity and alleged fraudulent misrepresentation which was not adduced in the lower court. The Respondent further pleads for increment of maintenance costs to Kshs. 30,000/= per month as the household’s monthly bill is Kshs. 60,000/=. The court is told that the ratio of 50%:50% contribution to maintenance by the parties would be appropriate. 23.This being a first appeal I am required to reconsider the evidence adduced, evaluate it and draw my own conclusions bearing in mind that I did not hear and see the witnesses who testified{ (see Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] EA 123 }. The Court of Appeal for East Africa in Peters vs Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” Main Appeal 24.As pointed out by the Respondent to this Appeal, the Appellant adduces new evidence that is not based on pleadings before the lower court. New evidence is allowed on appeal but an Appellant ought to seek and obtain leave first. Leave may be granted by the court guided by certain legal principles. 25.Parental responsibility of the Appellant over J.W is not only based on ground of his long cohabitation with the Respondent, but also on account of he having maintained the child during the material period as per Section 25(2) of the Children Act. I find no grounds on which to fault the trial court on its Judgement on maintenance of the children. 26.For the stated reasons, the Main Appeal is dismissed with no orders as to costs. Cross Appeal 27.The Cross-Appellant argues that the trial court should have shared responsibility for maintenance equally between the parties based on the submitted bill of Kshs. 60,000/=. There is no proof that the Respondent earns Kshs. 100,000/= per month as claimed by the Cross-Appellant. No evidence was provided in proof of the claim yet the burden of proof is on her. The Cross-Appellant has not also shown the Respondent's actual earnings for the court to gauge if he could contribute more. The Cross-Appeal therefore lacks in merit as well. 28.The upshot is that the Cross-Appeal is also dismissed with no order as to costs. JUDGEMENT DELIVERED VIRTUALLY AT NAKURU THIS 17TH DAY OF JULY, 2026.J. M. NANG’EA, JUDGE.In the presence of:Appellant, Present in Person.Respondent’s Advocate, Mr. Koome.Court Assistant (Jeniffer).