[2023] KEHC 24868 (KLR)

SBK v MK (Civil Appeal E052 of 2023) [2023] KEHC 24868 (KLR) (Civ) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24868 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E052 of 2023

PM Nyaundi, J

October 13, 2023

IN THE MATTER OF P.D.K, M.E.K N. K (MINOR)

Between

SBK

Appellant

and

MK

Respondent

(Being an appeal from the Judgement of Hon. M. W. Kibe (SRM) in Milimani Children’s Case no. 184 of 2020 delivered on 5th June, 2023)

Judgment

1. Vide Amended Memorandum of Appeal dated 18th July 2023, the Appellant seeks the following orders:1. That the Appeal be allowed2. That the Court be pleased to issue relevant and attendant declarations and orders on interpretation of the law and the import as pleaded herein for greater clarity and unavoidability on child right and parental responsibility on Kenya.3. That the appellant shall have joint legal and shared actual custody for the 3 minors.4. That the Appellant shall have shared school holidays and weekends over the 3 minors.5. That the Appellant shall have unrestricted and unlimited access to the 3 minors at any other time.6. That the Appellant shall have the right to participate and make inputs in all the major decisions concerning the 3 minors including but not limited to the educational, where to stay, religious and medical decisions.7. That the Appellant shall share the 3 minor’s educational, medical and clothing expenses within his means.8. That each parent to cater for the minor’s food, shelter, entertainment and other household expenses during their respective stay with the minors.9. That the respondent is ordered to fully comply in co- parenting with the Appellant for the sole ultimate welfare of the 3 minors in the long run.10. The Honourable Court be pleased to issue any other order that will further safeguard and guarantees the 3 minors and the appellant’s constitutional and legal rights in the circumstance.

2. This being a first Appeal the Court is obligated, as was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Limited [1958] to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its independent conclusion bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.

3. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) Hon. Mativo J (as he then was) further enunciated on the role of the Appellate Court as followsA first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.

Trial In The Lower Court 4. In Amended Plaint dated 29th July 2022, the Applicant sought the following orders;1. Custody of the minors be vested in the Plaintiff/ Mother with the limited day time access under supervision accorded to the Defendant’s father (sic)2. Apportionment of parental responsibility between the two parties.3. The Defendant be compelled to pay the school fees and school fees related expenses for the Children4. The defendant be ordered to contribute to the upkeep of the children.5. Any other relief this Honourable Court may deem fir too so grant for th4e best interests and welfare of the minors herein

5. In Defence and Counterclaim dated 11th August 2022, the Defendant sought the following orders-1. The Defendant be granted joint legal and shared actual custody of the minors;2. The defendant be granted full access to the minors on alternate weekends and school holidays and any other time necessary to attend to their needs;3. The Defendant and Plaintiff to equally share school fees and school related expenses for the three minors;4. That Both parents to equally share clothing, entertainment and medical expenses for the minors;5. The minors to continue living in the jointly owned matrimonial home at Komarock, Nairobi; and6. The cost of the suit be provided for.7. Any other and/ or further relief as this Honourable Court deems fit and just to grant

6. Before the matter proceeded to hearing of the main suit the record indicates that the Defendant/ Appellant sought review of the orders so as to enhance access to the minors and compel the Plaintiff/ Respondent to grant him access to the minors. At one point the Appellant raised issue and sought orders to compel the Respondent to disclose the whereabouts of the eldest minor. It would appear the respondent has failed to comply with these orders to date.

7. The matter was set down for hearing on 24th April 2023 the Plaintiff failed to attend Court, but the Defendant attended and was heard.

8. The Appellant testified as the sole witness. He stated that he is the biological father of the children and he is married the Respondent under customary law. At the time the matter was presented in Court they were leaving separately as the Respondent and obtained restraining orders against him. At page 61 of the record he made the following prayers.1. Joint legal and equal share actual custody on alternate weekends, he would collect the children on Friday at 5pm and return them on Sunday at 5pm2. He prayed that they share the time during school holidays each having access on alternate holidays3. On maintenance, each parent to provide housing. On food each party to bear its own costs in terms of food and living expenses. Clothing and recreation to be shared4. Education expenses to be shared5. He had provided medical but asserted that the Respondent was in a position to provide for this so she should contribute.

9. He countered the Children report stating that the children officer was biased.

10. The Defendant then filed written submissions dated 1st May 2023. I will summarise the Defendants framing of the final orders he sought from the court. While urging the Court to dismiss the plaintiff’s suit and enter judgment on his counter claim as follows:1. Both parents shall have joint legal and shared actual custody of the 3 minors2. For avoidance of any doubta.The defendant shall access the minors on alternative weekends from 5pm Friday to 5 pm Sunday.b.Both the defendant shall share the 3 minors’ access during school holidays.c.The defendant shall have unrestricted access to the 3 minors at any other time.d.Both parents have a right to participate and make inputs in all the major decisions concerning the children including but not limited to the educational; where to stay, religious, and medical decisions.3. The defendant shall share with the plaintiff the 3 minors’ educational, medical and clothing expenses within his means.4. Each parent to cater for the minors’ food shelter, entertainment and of the household expenses during their respective stay with the minors.5. The plaintiff is ordered to fully comply in co- parenting with the defendant for the sole ultimate welfares of the 3 minors in the long run.

11. The Court rendered its decision on 5th June 2023, dismissing the Plaint and entering judgment on the Counterclaim, which was undefended, and ordered that:a.Both parties granted joint legal custody and shall consult on all major decisions regarding the minors;b.Mother granted actual custody, care and control of the minors;c.The father granted access in school within school regulations, alternate weekends starting Friday after school to Sunday 5. 00 p.m and the first half of school holidays;d.Both parties to cater for the minor’s maintenance: shelter, food, entertainment, household expenses when in actual custody of the minors and/or during their respective stay with the minors; ande.The Defendant to cater for the minor’s medical cover and school fees, the Plaintiff to cater for school related expenses.f.The Court made no orders as to costs.

12. It is against this judgment that the Appellant appeals.

Analysis And Determination 13. As I embark on determining this matter I remind myself of the directive in Mbogo & Another v Shah (1968) EA 93 at 96, where the Court of Appeal stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

14. From the record I glean that, the Appellant and Respondent are husband and wife. They currently are leaving separately, the Respondent had at the time of the suit restraining orders against the Appellant. The Couple has 3 children. Currently the Respondent has custody of the Children.

15. The Respondent moved Court but on the day the matter proceeded to hearing she did not attend Court, consequently the Court proceeded to close the case and proceeded to hearing of the Defence and Counterclaim.

16. Having considered the record of the Trial Court, the Amended Memorandum filed herein, submissions filed along with the authorities cited I discern the following as the issues for determination1. Whether the Learned Magistrate in the impugned judgment had regard to the best interests of the minors.2. Who should pay costs of the suit

17. The Appellant has succinctly captured the international, regional and national norms and judicial precedents as relates to the best interests of the child principle and parental responsibility, I need not recant them as the submissions form part of the record. Suffice it to state that at the heart or core of this matter is the wellbeing and welfare of the Children of the Appellant and Respondent.

18. Article 45 (2) of the Constitution of Kenya 2010 provides as follows: -“A child’s best interests are of paramount importance in every matter concerning the child.”

19. Likewise Children Act at Section 4(2) provides as follows:-“(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”. (own emphasis)

20. It is now well settled that the best interests of the child is the guiding criterion that determines all decisions relating to custody of children where as in the instant case the relationship between the parents has soured and a decision has to be arrived at as to which parent has custody. The children herein require stability in their lives.

21. The South African decision of McCall v McCall 1994 3 SA 201 (C) provides useful guidelines on the factors that should be considered in arriving at a custody decision these area.The love, affection and other emotional ties between parent and child.b.The parent’s compatibility with the childc.The Parents abilities, character and temperament and the impact thereof on the child’s needs and desiresd.The parent’s ability to communicate with the child.e.The parent’s insight into, understanding of, and sensitivity to the child feelingsf.The parent’s capacity and disposition to give the child the guidance he or she needsg.The parent’s ability to provide the child with economic security, that is, the parent’s ability to provide the child with creature comforts, like food, clothing and housingh.The parent’s ability to provide for the child’s religious and secular educational well- being and securityi.The parent’s ability to provide for the child’s emotional, psychological, cultural and environmental developmentj.The parent’s mental and physical health and moral fitnessk.The stability or instability of the child’s existing environment having regard to the desirability of maintaining the status quo (that is the existing state of affairs).l.The desirability or otherwise of keeping siblings together.m.The child’s preference, if the Court is satisfied that the child has the necessary intellectual and emotional maturity to make a well- informed judgmentn.The desirability or otherwise of applying the doctrine of same- sex matching that is placing sons with fathers and daughters with motherso.Any other relevant factor

22. These are mirrored in Section 103 of the Children Act, 2022 which outlines Principles to be applied in making custody order as follows:In determining whether or not a custody order should be made in favour of an applicant, the Court shall have regard to—(a)the conduct and wishes of the parent or guardian of the child;(b)the ascertainable wishes of the relatives of the child;(c)the ascertainable wishes of the child taking into account the child’s evolving capacity;(d)whether the child has suffered any harm or is likely to suffer any harm if the order is not made;(e)the customs of the community to which the child belongs;(f)the religious persuasion of the child;(g)whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force;(h)the circumstances of any sibling of the child concerned, and of any other children of the home, if any;(i)any of the matters specified in section 95(2) where the court considers such matters to be relevant in the making of an order under this section; and(j)the best interest of the child.

23. It is now also well established by judicial precedent that it is in the child’s best interest to have access to both parents, In RK v AN (Family Appeal E 028 of 2022) [2022] KEHC 10970 (KLR) (Family) (29 July 2022) (Ruling), Hon Lady Justice M. Odero stated[14]The parties herein are the biological parents of the subject minors. The lower court granted custody of the children to the Applicant (father). Vide the Ruling of 11th March 2022, the court made orders regarding access to the children by their mother. It is in the best interests of the minors to have regular access to both parents. No parent has superior rights over the other and both ought to be allowed interaction with the minors. The only exception is if there exists a real threat that the children will be exposed to imminent harm. I find no evidence that the Respondent possess a threat to the minors.a.The love, affection and other emotional ties between parent and child.b.The parent’s compatibility with the child.c.The parent’s abilities, character and temperament, and the impact thereof on the child’s needs and desires.d.The parent’s ability to communicate with the child.e.The parent’s insight into, understanding of, and sensitivity to the child feelings.f.The parent’s capacity and disposition to give the child the guidance he or she needs.g.The parent’s ability to provide the child with economic security, that is, the parent’s ability to provide the child with creature comforts, like food, clothing and housing.h.The parent’s ability to provide for the child’s religious and secular educational well-being and security.i.The parent’s ability to provide for the child’s emotional, psychological, cultural and environmental development.j.The parent’s mental and physical health and moral fitness (See Fletcher v Fletcher 1984 1 SA 130 (A)).k.The stability or instability of the child’s existing environment, having regard to the desirability of maintaining the status a quo (that is, the existing state of affairs).l.The desirability or otherwise of keeping siblings together.m.The child’s preference, if the court is satisfied that the child has the necessary intellectual and emotional maturity to make a well-informed judgment.n.The desirability or otherwise of applying the doctrine of same-sex matching, that is, placing sons with fathers and daughters with mothers.o.Any other relevant factor.

24. In the instant case the report of the Children Officer provided the Court with an objective analysis of the relationship the children have with their parents. Although the report is impugned by the Appellant, I observe that the Report actually indicates that the Children are desirous of having contact with both parents. The Children officer also observed that neither parent exhibited any conduct that would be considered a thr4ea to the children.

25. In the Supreme Court Decision, Civil Petition No. 2 (E003) of 2022 in the matter of MAK-v-RMAA & 4 Others, KESC 21(supra), considering how to balance a child’s best interest vis-à-vis the enforcement of parental rights and responsibilities, the court found that:“The best interest of the child is determined by the circumstances of the case as they specifically relate to the child. . . A child needed both their parents which was their right, especially where a parent’s incapacity had not been proven . . .Parental Rights did not trump the best interest of the Child. However, parental rights could not be ignored if they were in the best interest of the child . . . The Appellant had not had direct contact with the minor since . . . That was in contravention of Kenya’s legal Regime on the Rights of the child.”

26. This Court notes that the Lower Court granted Joint Legal Custody to the Appellant and the Respondent and specified that the two had equal rights and duties as related to the subject minors and that both parties would consult one another on all major decisions regarding subject minors.

27. As regards actual custody, I observe that in his defence the Appellant did not seek joint custody but rather access. The issue is whether it would be in the interests of the minors to grant the Appellant unlimited physical access.

28. As observed each case is to be determined on its individual facts. In the instant case the relationship between the Appellant and the Respondent borders on toxic. In these circumstances it is easy to disrupt the stability of the children if access is not defined clearly and this would not be in the interests of the minor children.

29. Unlimited access means that the parent who does not have actual custody gets to access the minors without any rules. This is potentially chaotic as this will in turn greatly prejudice the parent with actual custody. In fact, such an order is absolutely incompatible with granting actual custody to one parent, if the other can access the minors whenever he or she likes. It is likely to curtail the freedoms, introduce animosity and interrupt the life of the parent who lives with the minors which in turn will negatively affect the minors.

30. In the matter of JKN v HWN (Civil Appeal 40 of 2014) [2019] KEHC 6737 (KLR) (13 June 2019), Justice Joel Ngugi explained that:“Where a custody order is made giving custody of a child to one party . . . the court may order that the person not awarded custody shall nevertheless have all or any rights and duties in relation to a child, other than the right of possession, jointly with the person who is given custody of the child.”

31. Thanks to technology the Court has increased options at its disposal when making decisions on the access by parents. In the instant case, the Appellant is desirous of having increased access to the minors. This must be balanced with the requirement to maintain a stable environment for the children. I would vary the decision of the trial court and in addition to the weekend access and holiday access grant the Appellant access to the Children virtually when they are not with him, every day between 7pm and 8pm. The Appellant will provide the necessary gadgets (telephone, laptop, tablet) to facilitate this.

32. The Appellant also prays that Order 5 of the Lower Court decree directing that the Appellant cater for the minor’s school fees and medical cover and the Respondent cater for school related expenses be amended so that both parents cater for school fees.

33. I note that in paragraph 4 of the Appellant’s Affidavit of means dated 4th July 2022, he deponed that while he was living with the Respondent he had catered for all educational and medical needs and that he had shared the expense of clothing, entertainment and shelter for the three minors from his income. He deponed at paragraph 10 and 11 that he lacked capacity to adequately meet the minor’s educational expenses alone since he had an extra expense of rent after moving out of the matrimonial home. He attached his pay slip proving that he earned of Kshs. 88,177 but provided his monthly expenses to amount to Kshs. 143,000 per month. The Appellant also attached medical cards for the three minors on a scheme that he had taken for them way before the matter was filed in Court.

34. Since every man must cut his coat according to his cloth, this Court cannot order the Appellant to pay school fees beyond his means. For that reason, this Court can only order him to pay school fees that is commensurate to his budget. The Appellant presented an affidavit of means.

35. The Court also takes judicial notice of the rising cost of education, especially quality education.

36. It is only fair to the Appellant if the children attend schools where the total termly expenditure does not exceed Kshs. 40,000 for each of the three minors. In the alternative, should the Respondent prefer schools that exceed this amount in School fees, then she is to cater for the difference.

37. In conclusion, having regard to the foregoing these are the final orders, the Appeal succeeds partially on the following termsa.Both parties granted joint legal custody and shall consult on all major decisions regarding the minors;b.Respondent granted actual custody, care and control of the minors;c.The father granted access in school within school regulations, alternate weekends starting Friday after school to Sunday 5. 00 p.m. and the first half of school holidays; Daily Virtual access to the minors on gadgets to be provided by him between 7pm and 8pmd.Both parties to cater for the minor’s maintenance: shelter, food, entertainment, household expenses when in actual custody of the minors and/or during their respective stay with the minors; ande.The Appellant to cater for the minor’s medical coverf.Appellant to cater for the minor’s School fees to a limit of Kshs. 40,000 per child per term payable the first week when schools open. Should the respondent prefer different schools, she is to cater for the difference. The Respondent will cater for the minor’s School related expenses.g.Having regard to the relationship between the parties there shall be no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 13TH DAY OF OCTOBER, 2023. P. NYAUNDIJUDGE