[2024] KEHC 12516 (KLR)

SKM v RPK (Civil Appeal E063 of 2022) [2024] KEHC 12516 (KLR) (Family) (8 October 2024) (Judgment)

Neutral citation: [2024] KEHC 12516 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E063 of 2022

CJ Kendagor, J

October 8, 2024

Between

SKM

Applicant

and

RPK

Respondent

(Being an appeal against the ruling and order of the Honourable F. Terer Senior Resident Magistrate, delivered on 30th June, 2022 in Nairobi Children’s Case No. E487 of 2021)

Judgment

1. The Appellant and the Respondent are the biological parents of KKM (minor). He instituted a case at the Nairobi Children's Court against the Respondent for custody and maintenance of the minor.

2. An order was issued on 22nd July, 2021 that he contribute to the minor’s upkeep by catering for his school fees and related expenses. He was dissatisfied with that order, and he lodged an application dated 27th July, 2021 asking the trial Court to review the said order. The trial Court, in a Ruling delivered on 30th September, 2021 dismissed the application for review on the grounds that the Appellant had not laid a proper basis for the review of the orders. The trial Court noted that the Respondent was shouldering most of the minor’s needs and ordered the Appellant to pay fees and incidental costs.

3. The Respondent sought to enforce compliance against the Appellant, who had failed to make payment and filed a Notice to Show Cause (NTSC) dated 15th March, 2022 against the Appellant, asking that he be committed to civil jail for disobeying Court orders. The NTSC was for Kshs.56,300/=.

4. The trial Court delivered a Ruling dated 30th June, 2022 and directed that the Appellant settle the sum on or before 8th July, 2022 and that, in default, a warrant of arrest be issued against him for his committal to civil jail.

5. The Appellant was aggrieved with the said order and lodged a memorandum of appeal dated 8th July, 2022 in which he asked this Court to set aside/review the order on the payment of the minor’s fees. The appeal outlined eight grounds of appeal;i.That the Learned Magistrate erred in fact and in law by awarding school fees for the minor against the Appellant that was manifestly excessive taking into account the Appellant’s income/means.ii.That the Learned Magistrate erred in law and in fact by failing to take into account, in his award, the Appellant’s income/means in reaching his findings on the school fees of the minors.iii.That the Learned Magistrate erred in law and in fact by failing to had not been consulted nor given his approval for the said school, reaching his findings on the school fees of the minor.iv.That the Learned Magistrate misdirected himself on the law on maintenance of minor.v.That the learned Magistrate erred in law and in fact by ordering the Appellant to refund the school fees paid for the minor in a manner that was punitive to the Appellant.vi.That learned Magistrate erred in both law and fact by awarding the bulk of the school fees against the Appellant even with the knowledge that decisions over a minor are joint decisions.vii.That the Learned Magistrate misdirected himself in apportioning the school fees for the minor.viii.That the Learned Magistrate erred in both fact and law by merely confirming his interim orders fee payment without giving reasons for his ruling on school fee payment.

6. The appeal proceeded by way of written submissions. The Appellant’s submissions are dated 26th July, 2023 and the Respondent’s submissions are dated 11th December, 2023.

7. The Appellant submitted that the Court should set aside the order as the Respondent did not consult him on the choice of school. Further, that the trial Court failed to consider his financial capability when issuing the order and erred in not giving reasons thereof.

8. The Respondent submitted that the appeal is frivolous and an attempt by the Appellant to shift all parental responsibility to her. She submitted that both parents should, by law, share parental responsibility and asked the Court to dismiss the appeal with costs to the Respondent.

9. In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, on the duty of the first appellate court, the court stated that;“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

10. I have considered the grounds of appeal, the record of appeal as well as the written submissions filed by respective parties. I find the following issues necessary for determination: -a.Whether the award on the minor’s school fees should be reviewed or set aside?b.Whether the orders of the trial court of 30th June, 2022 should be set aside?

11. As I consider this appeal, I am mindful of the constitutional imperative that the children's best interests are paramount in any decision. Article 53 (2) of the Constitution of Kenya, 2010 provides:“A child’s best interests are of paramount importance in every matter concerning the child.”

12. I have reviewed the record and noted that the Notice to Show Cause was taken out as a result of the proceedings and subsequent orders of 22nd July, 2021. This order pertained to the payment of fees and was an interlocutory order. The record indicates that on the specified date, the Respondent's counsel notified the Court that the minor's school fees were outstanding, specifying an amount of Kshs.30,000/=. The Appellant's counsel affirmed the Appellant's lack of objection to the fee payment and stated that they had not been provided with the fee structure.

13. The Court, in reliance on this affirmation, ordered that the Appellant pay fees and related expenses upon being formally issued with the school fees structure. Prior to the order on fees, the Court had issued orders allowing the Appellant access to the minor. The record also indicates the Court's and the parties' mutual desire to proceed with the hearing and determination of the main suit. The minor was in actual custody of the Respondent and was already in school. The Appellant’s contention was for a change of schools to a school of his choice.

14. The trial Court, in determining the application for review of the order on payment of fees, considered the fact that the child was in the Respondent’s custody and further gave due consideration to the affidavit of means filed by the Appellant sworn on 26th August, 2021. The Court noted that education is among other basic needs, including shelter, food, clothing, and medical care (the minor was stated to be asthmatic). The trial Court observed that the Respondent was already meeting the other needs, which accrue on a monthly basis, unlike school fees that are paid termly. The Court duly considered that the projected expenses for the other necessities are expected to surpass the amount for monthly fee remittances (if paid at Kshs.10,000/= every month of the term).

15. The trial Court while declining to review the orders for payment of fees held as follows;“Given the foregoing exposition, it is apparent that the defendant shoulders most of the minor’s needs. The plaintiff should thus meet the needs of the minor as ordered by the court.”

16. Maintenance constitutes an essential aspect of parental care and is a shared responsibility of both parents for the well-being of their children. A Court is empowered to issue orders and provide guidance on all aspects of child maintenance, encompassing education, medical care, housing, and clothing.

17. I am satisfied that the trial Court gave due regard to all circumstances in the case, the financial capacity of the parties and foremost the needs of the minor. The apportionment of the parental responsibility given to the parties in the interim was justified and in the best interests of the minor. I see no justification for reviewing or overturning the orders by the trial Court.

18. Execution proceedings are aimed at enforcing orders issued by Courts of law. The NTSC was taken out as a mode of execution because the Appellant did not comply with the orders of the Court on payment of fees and incidental expenses. The amounts were in arrears of Kshs.56,500/=. The court record indicates that the appellant was provided with an opportunity by the trial Court to submit a response. Despite being instructed to do so, the Appellant failed to provide any response to the NTSC. The consequential orders directing that he pays the amount on or before 08th July 2022, failure to which a warrant of arrest is to be issued, were merited.

19. This appeal lacks merit and is dismissed with costs to theRespondent.

20. It is so ordered.

DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 8TH DAY OF OCTOBER, 2024. …………………………C.KENDAGORJUDGEIn the presence of:Court Assistant: BerylMr. Samuel Kiambi Mugambi – AppellantNo appearance for the Respondent