[2022] KEHC 12459 (KLR)

SK v LN( Child suing thru' his mother and next friend DWK) (Civil Appeal E020 of 2021) [2022] KEHC 12459 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12459 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E020 of 2021

RM Mwongo, J

June 14, 2022

Between

SK

Appellant

and

LN ( Child suing thru' his mother and next friend DWK)

Respondent

(Being an appeal from the judgment and Decree of Hon K. Bidali CM made on the 31st of July 2019 in Naivasha Being an appeal from the judgment and Decree of Hon K. Bidali CM made on the 31st of July 2019 in Naivasha Children’s Case No. 4 of 2019)

Judgment

1. The Appellant and Respondent entered into a relationship in which they co-habited, as a result of which they were blessed with a child LN. At the time, the appellant was based in Naivasha. By the time the child was about three years old, the relationship had soured. The respondent thus filed a suit claiming cruelty, failure of the appellant to perform his parental duties and seeking maintenance of Kes 13,500/- per month for food, clothes, shelter and medication.

2. The appellant denied paternity and the other claims, he also made a counterclaim alleging that the plaintiff had become a nuisance to him, causing embarrassment at his office, threatening to have him sacked, and had generally become a nuisance to his wife and family. He sought a permanent injunction restraining her from going near him.

3. On the date agreed for the hearing of the suit, the appellant/defendant’s counsel did not show up claiming to be engaged in another matter in the ELC court. on the objection of the respondent plaintiff, the trial magistrate declined to adjourn on the ground that this was a children’s matter, and the best interests of the child reigned supreme, including demanding expedition.

4. The trial court heard testimony from the respondent/plaintiff who was the sole witness, and found in her favour. In his judgment, the learned magistrate granted the plaintiff/respondent’s prayers for maintenance of Kes. 13,500/.- This appeal arises from that judgment, and is premised on the following grounds:1. The learned trial magistrate erred in law and in fact in awarding the plaintiff sum higher than what she had claimed in her plaint and without justification.2. The learned trial magistrate erred in law and in fact in awarding the Plaintiff to apportion responsibility between the Appellant and the Respondent.3. The learned trial magistrate erred in law and in fact in failing to grant the appellant an opportunity to prosecute his Defence and counterclaim.4. The learned trial magistrate erred in law and in fact in failing to consider adequately or at all the defence of the Appellant as filed, and in particular the fact that the Appellant had denied the paternity of the child.5. The learned trial magistrate erred in law and in fact in overlooking the constitutional requirement of the overriding objective of justice and the right to be heard and for that reason made orders against the Appellant which were contrary to those constitutional provisions.6. The learned trial magistrate erred in law and in fact in allowing the Respondent’s claim wholly without question and without evidence.

Parties’ submissions 5. In his submissions, the appellant states that he has since abandoned his claim for a paternity test. However, he states that there was an error in the award in that at paragraph 10 of the plaint the respondent had itemized clothes at 3,000/- per quarter or 1,000/- per month, yet the trial court, in awarding 13,500/- per month treated the clothing amount as a monthly figure. Thus that the monthly figure should have been 11,500/- per month

6. The appellant also cited Section 24 of theChildren’s Act and Article 53 of the constitution as to the joint responsibility of both parents in providing for the child. The appellant relied on the following authorities: JJF vs EMC (suing as the Next friend to VV &VJ[2020] and Nairobi Civil appeal No. 21 of 2014 (SKM vs MWI [2015]. In the former, the court stated that the apportionment of responsibilities is in ratio of the parents’ income; and in the latter the court reduced the amount awarded pending full determination of the Respondent’s proved earnings.

7. Further, the appellant claims he was not heard and that the matter came up for hearing only once on 24th July, 2019, at which hearing the appellant’s counsel failed to attend court for cross-examination of the Claimant. The appellant pointed out the decision in NRB Civil Appeal No. 20 of 2016 (patriotic guards vs James Kipchirchir Sambu [2018] where the lower court was found in error for failing to exercise discretion in the appellants favour when the appellant’s counsel failed to appear, as in this case.

8. The Appellant also contended that the trial magistrate did not consider his averments in the defence, namely: That the respondent is a married woman, whose husband had offered to take up the educational and medical needs of the child. Reliance was placed on Nairobi Constitutional Petition Number 193 of 2011 ZAK & Anor v MA & Another where the petitioner who had cohabited with the 1st respondent for 2 years acquired parental responsibility over 2 non-biological children of the respondent.

9. The appellant submitted that the trial court took in the respondent’s claim without evidence or question and cites the alleged miscalculation in his first ground and claiming that the respondent did not adduce evidence to show that the child had special needs that would warrant the award. He also asserted that his salary cannot sustain the award given, an further that he has two other biological children.

10. Finally he claims that the parties in the course of moving to file the appeal out of time entered into a consent for the payment of Kes 8000/- which fell through. That the consent was entered into with the involvement of the High Court with the aim that if it had held the file would have been closed. The appellant seeks that the consent be enforced his appeal be allowed.

11. The respondent opposed the appeal. She stated that the appellant was duly served with pleadings and court appearances together with submissions and decree which he was reluctant to satisfy; that it was not until the respondent made and served an application to the court the distilled orders on the appellant’s employer to deduct the decree sums when he was spurred into action.

12. She alleges she is taking care of the minor solely and with great difficulty without any assistance from the Appellant. Further the respondent states that during the subsistence of the appeal, by consent and by commitment by the Appellant, it was agreed he would remit Kes 8000/- per month which he dishonored. She emphasizes that despite this consent sum being lower than the decretal monthly sum, the appellant has since failed to honour the consent.

13. Finally, she contended that the needs of the minor continue to enlarge as he grows olde. She seeks that the court order the Appellant to pay for the minor’s educational needs.

14. Having carefully considered the material before me, I think the issues for determination are:a.Whether there was a consentb.Whether the trial court’s decision should be overturned.

15. The overriding principle in children’s matters is what is in the best interests of the children. It is enshrined in Article 53(2) and section 4(2) of the Children’s Act. Section 4(2) of the Children’s Act states:“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.”This will be the critical focus of this court herein as I deal with the issues in this matter.

Whether there was a consent 16. I note from the record of the matter in the High Court in Misc Civil Case No 208 of 2019, that there was a consent entered into by the parties dated 28th February 2020. The record reads as follows:“K: We met with the Respondent and the mother of D….they understand what I’m going through. We have agreed that I will be giving 2,000/- every week i.e. about 8,000/- per month….D: We met and agreed on 8,000/- per month. I wish it be deducted from the [applicant’s] salary…”

17. The court then entered the consent as follows:“By consent the parties hereby agree as follows:1. The applicant to pay the respondent Kshs 2,000/- per week no later than every Saturday with effect from March 20202. The court order issued in CM Children’s Case No 4 of 2019 is hereby revoked and substituted with the orders herein…”

18. As already stated this consent relates to proceedings in the High Court and not to the appeal by the lower court in its judgment in the Children’s Court. as such, whilst the consent is not the subject of appeal herein, it may be used to inform the court.

19. I will only make the following comment regarding the consent, which, as I have said is not the subject of the appeal: In Hirani v Kassam [1952] 19 EACA 131 the Court of Appeal held as follows:“It is now well settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J.M. Mwakio v Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell v F.C. Trigell Ltd [1970] 3 All ER 671, Winn LJ said at 676:-“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with the knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”I agree with that position.

Whether the trial court’s decision should be overturned. 20. I have carefully perused the trial court’s proceedings. The matter was registered on 16/5/2019, mentioned on 19/6/2019, and a hearing fixed for 24/7/2019 in the presence of the parties. for hearing/mention. The record is not clear whether the matter was for hearing or mention. However, being a Children’s matter, expedition would be at the top of the court’s mind.

21. On 24/7 a counsel held brief for the respondent and indicated that counsel instructed was attending to a hearing in the ELC Court and sought an adjournment. The plaintiff stated that the children are suffering, and the court declined the adjournment saying that the application for adjournment lacked merit as this was a children’s matter and the counsel ought to have made arrangements.

22. Accordingly, the court proceeded to take evidence of the plaintiff. There was no cross examination. Judgment was issued on 31/7/2019. The trial court incorrectly indicated that the matter had been listed for hearing on 18/6/2019. I have looked at the record and the indication is that the court stamp merely indicates the matter was for hearing/mention on 19/6/2019.

23. I agree with the appellant that he was not given a fair opportunity to be heard, and for his position to be made known. He had filed a defence in which he had , inter alia, sought a DNA test as he had doubts about the paternity of the child ( though this is now not a point of dispute); that he sent the plaintiff money via mpesa or cash or by Boda boda delivery from time to time; that and he filed a counterclaim.

24. I find that it was unfair for the trial court to decline an adjournment for the defendant at the very first request for adjournment.

25. I further agree with the defendant, that in the plaint, the plaintiff clearly indicated that the figure for clothes was “Kshs 3,000/- quarterly an year”. She had however calculated the total claim to 13,500/- per month, when clearly it ought to have been 11,500/- per month. In his judgment the trial magistrate did not notice the error and awarded the full 13,500/- claimed in error.

Disposition 26. For these reasons, the proceedings and judgment of the lower court cannot stand, and are set aside. I will direct that a fresh trial be undertaken and concluded within 60 days of the date hereof, unless the parties otherwise settle the matter

27. As earlier noted, the lower court’s judgment had been altered by a consent judgment. So that it has no effect. In the meantime, the consent judgment shall remain in place; and the trial court shall call up the parties to account to ensure that the appellant has made up to date payments of the amount of Kshs. 8,000/- agreed by consent from March 2020 to date.

28. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 14TH DAY OF JUNE, 2022. .....................................R MWONGOJUDGEDelivered in the presence of:Ms Kalinga for AppellantDWK - Respondent in personQuinter Ogutu - Court Assistant