1. The parties herein were married to each other sometimes in the year 2010 under Islamic law and were subsequently blessed with four (4) children, namely; S.A.M 13 years, A.A.M 11 years and A.A.M 10 years. In the year 2018 as gleaned from the record of the kadhis court, the parties divorced. According to the respondent, petitioner in the magistrate court, the appellant who worked in the United States of America used to provide for the children and paid monthly upkeep of ksh 30,000 between 2016 to 2017 and raised the amount thereafter to 50,000 in 2018 and 60,000 in 2021 respectively. The respondent avers that in the year 2023, the appellant increased the monthly upkeep to 100,000 until march 2024 when he stopped altogether. The respondent further stated that the appellant provided shelter to the children which however was taken away by (appellants) father upon his return to the USA. It is therefore the respondent contention before the Magistrate court that the appellant had absconded and neglected his parental responsibility and sought the courts intervention. She thus sought the following orders;
1) An increase of the minor’s monthly maintenance bill of ksh.200,000
2) Provisions of shelter for the children
3) Payment of ksh.119,000 comprising of fees, transport and dux for all the four children.
4) Payment of monthly maintenance fees of ksh 400,000 for the months the appellant had not been paying.
2. Although the matter initially proceeded without the participation of the appellant resulting in an exparte judgement, the same was later set aside paving the way for the appellant to file defence which he did on 25th February 2025. The appellant in defence denied the allegations made against him and stated that he has always been willing to take up responsibilities as a father to his children and had been providing for them to the best of his abilities. In the circumstances, he sought among other reliefs, for dismissal of the suit and in the alternative a monthly maintenance of Ksh. 80,000 all inclusive.
3. The matter was heard before the magistrate court, where upon hearing the respondent and the appellant entered judgment for in favour of the respondent and directed that the appellant shall pay ksh.80,000 as maintenance with effect from 30th September 2025 and continue providing shelter for the children.
The respondent case
4. The respondent (PW1) testified and adopted her statement dated 22nd July 2024 which largely is an attack on the appellant character calling him a person of immoral behaviour, wicked disrespectful and rude. In court however, the respondent stated that she has four children with the appellant who all attend a private school (name withheld) and pays the following amounts as school fees per term; 45,000 for the first born, ksh 38,000 for the 2nd born and ksh.20,000 for both the 3rd and 4th born. She told the court that it was an onerous responsibility to take care of the four children on her own and asked the court to accede to her request.
5. In cross examination by counsel for the appellant, the respondent stated that she is a police officer earning a salary. That she took a loan and built the house she occupies without the assistance of the appellant and that she does not pay rent for the house. She also told the court that she has registered all the children with SHA medical cover although the same is not enough to cover all the medical expenses. It is her case that the maintenance sought is for purposes of buying food for the children. In re-examination, the witness told the court that the house they are living in was built for them by her husband.
Appellant case
6. The appellant (DW1) adopted his statement dated (sic) 19th June 2025- although the one on the court file is dated 24th June 2025 -as his evidence in chief. He stated in his statement that the respondent had in April 2024 moved into his father house and displaced him altogether forcing him to make alternative accommodation for his father further incurring additional expenses. That he used to work as a truck driver in the USA but the business went bad and he was forced to change to an uber driver. As an uber driver, his income is not steady and fluctuates from time to time. He avers that on average he earns between 4500 to 5000 USD before deductions which includes rent of 1500 USD, utility bills and food at 1200 USD and 500 monthly for insurance. He also stated that he has two wives with children whom he is taking care of. With the challenges he is going through, he told the court that he could only afford ksh.40,000 per month as maintenance for the children.
7. After hearing both parties and their respective submissions the trial court entered judgment in favour of the respondent and directed that the appellant shall pay ksh.80,000 as maintenance with effect from 30th September 2025 and continue providing shelter for the children.
8. Dissatisfied with the judgement of the court the appellant preferred the present appeal on the following grounds;
1) THAT the learned Magistrate erred in law and in fact by awarding monthly child maintenance of ksh. 80,000 without adequately considering the appellants financial capacity as per his testimony before the court.
2) THAT the learned Magistrate failed to take into account the appellants obligations on his wives, his children and his parents in ordering that he pays Ksh 80,000 in monthly maintenance of his children with the respondent
3) THAT the learned Magistrate failed to take into account the fact that the respondent is employed with a steady income and that she should contribute equitably to the maintenance of the children with the appellant.
4) THAT the learned Magistrate failed to consider that there was a dispute between the parties on which property belongs to the appellant and which the appellant asserted he built for the respondent and the property occupied by the respondent since 2024 in making an order for the appellant to continue providing shelter for the children.
9. The appellant therefore prays that the appeal be allowed and judgement delivered on 9th October 2025 be set aside and he be allowed to pay ksh.40,000 monthly as maintenance.
10. Both counsels filed submissions in this appeal which I shall set out herein below albeit in brief.
11. The appellant faults the learned magistrate finding which it submits is not based on any evidence as the respondent had not disclosed any evidence of her earning and or her monthly contribution to the children despite the fact that she was in gainful employment. The appellant contend that the trial court disregarded the appellants obligations to his other family and did not take into account the fact that at the time of his testimony he was unemployed. The appellant further submitted that the court did not apportion parental responsibility equally between the parties instead placed the responsibility of education, food, medical to the appellant. On the issue of shelter, it is the appellant submission that the respondent lives in a house which he built and is not paying any rent.
12. The respondent on the other hand submitted that the learned magistrate applied the law correctly in awarding ksh. 80,000 as reasonable monthly maintenance for the four children. Counsel cited the case of M.A.A VS A.B.S. (2018) where the court held that;
“… while considering this matter, this court is alert to the welfare of the children herein who are of tender years. The matter is not about the applicant/appellant and the respondent; and their interest are secondary to those of the child. The foregoing provisions require this court to treat the interest of the child as the first and paramount considerations and must do everything to interalia safeguard, conserve and promote the rights and welfare of the child herein. Acting in the best interest of the children in question”.
13. It is submitted that parental responsibility under section 31 of the Children Act means all duties, rights, powers and responsibilities which by law a parent of a child has in relation to the child. Therefore, in financial terms, the children require school fees, access to good medical health care, food, clothing and shelter and the amount awarded by the court in view of inflationary factors is even less that what can sustain good livelihood.
14. The respondent submitted that the appellant has not tendered evidence to show that he has other children and wives and how much is spent on the other family if at all neither was it demonstrated by evidence that the appellant was relieved of his duties.
15. It is the respondent contention that the amount of ksh 80,000 awarded by the trial court covered education, food, and supplementing medical cover for the minors and all the other needs of the children under section 31 and 32 of the children Act was left to the respondent.
Analysis and Determination
16. I have given due considerations to the evidence before me which includes the proceedings in the lower court, the statements adopted by the parties as constituting their evidence in chief, brief oral testimonies and their respective counsel submissions.
17. This being a first appeal, this court is required pursuant to section 78 of the civil procedure to which children matters apply, to examine the trial court record and the evidence and draw own conclusions bearing in mind however the limitation inherent in the fact that it never heard or saw the witnesses testify. This principle of law was settled in the case of Selle vs Associated Motor Boat Co. Ltd (1968) EA 123 and many subsequent decisions of the superior court where the court stated that;
“An appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”
18. Article 53 (1) (e) of the constitution provides that “Every child has a right 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.” The best interest of a child is therefore paramount considerations in every matter concerning the child and such matter that concerns the child, includes maintenance and the exercise of parental responsibility. Ordinarily, parental care and protection should flow naturally by virtue of the fact that the parents begotten the children and those children’s needs under section 31 and 32 should be taken care of fully. However, this is not always the case hence the law which places a duty upon the parents and other state actors to ensure that the children interest even in situation of conflict between the parents are safeguarded.
19. Section 114(1) of the children Act 2022 sets out the financial considerations that should guide the court in making an order for a child’s maintenance. These conditions include;
1) The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future.
2) The financial needs, obligations, or responsibilities, which each party has or is likely to have in the foreseeable future
3) The financial needs of a child and the child’s current circumstances.
20. From the above provisions the Children Act, it is without doubt that parental responsibility is not an obligation of one parent alone. It’s a joint effort of both parents though not necessarily the same. In CIN VS JNN (2014) eKLR the court expressed observed that; “it will not do for a party to say that she has an uncertain source of income and therefore the responsibility of maintaining the children should be borne by the adverse party. The (said) party must establish to the satisfaction of the court that she has also made an effort to provide for the upkeep of the children”.
21. In determining what each parent should contribute towards care, maintenance and protection of the children, it is imperative especially in situation where both parents are in one form of gainful employment or another to provide affidavit of means to enable the court apportion financial and other obligations in a way that is both realistic and enforceable. This is so because, maintenance and the amount of money one has to pay in respect of a child is not fixed by law. It is based on facts and circumstances of each case. From the proceedings in the magistrate court, neither the appellant nor the respondent filed affidavits of means to support their respective positions. The appellant admittedly works in USA previously as a truck driver with a definite income and expenses. And even in later years as an uber driver, it was still possible to ascertain one’s income and expenses. The appellant attempted to do that but without any supporting documents.
22. On the other hand, the respondent is a police officer whose rank was not disclosed, with a steady monthly income easily ascertainable by provisions of a pay slip. Her earning capacity was not availed and as noted by the magistrate court, the fees structure for the total amount of school fees for the four children was similarly not availed. The parties apparent reluctance or omission to provide material evidence to support their respective earnings meant that the court determination on the amount to be paid as maintenance was at most left to the magistrate discretion based on his assessment of the evidence before him.
23. It is not also enough for the appellant to say that he has another family and children to take care of as a basis to ran away from his current obligations. Since he made his bed, he must lie on it as choices have consequences.
24. Having reviewed the evidence in its totality and based on the material available I make the following orders;
1) THAT the judgement of the learned magistrate dated 9th October 2025 is hereby set aside and substituted with an order that the appellant shall pay to the respondent Ksh. 60,000 per month effective 30th September 2025.
2) THAT as the respondent admits living in a house where she does not pay any rent, she shall take up the responsibility to shelter the children until such a time when circumstances change.
3) In the event that circumstance change, the respondent is at liberty to apply.
4) THAT this being a family matter, each party shall bear its own
1) An increase of the minor’s monthly maintenance bill of ksh.200,000
2) Provisions of shelter for the children
3) Payment of ksh.119,000 comprising of fees, transport and dux for all the four children.
4) Payment of monthly maintenance fees of ksh 400,000 for the months the appellant had not been paying.
2. Although the matter initially proceeded without the participation of the appellant resulting in an exparte judgement, the same was later set aside paving the way for the appellant to file defence which he did on 25th February 2025. The appellant in defence denied the allegations made against him and stated that he has always been willing to take up responsibilities as a father to his children and had been providing for them to the best of his abilities. In the circumstances, he sought among other reliefs, for dismissal of the suit and in the alternative a monthly maintenance of Ksh. 80,000 all inclusive.
3. The matter was heard before the magistrate court, where upon hearing the respondent and the appellant entered judgment for in favour of the respondent and directed that the appellant shall pay ksh.80,000 as maintenance with effect from 30th September 2025 and continue providing shelter for the children.
The respondent case
4. The respondent (PW1) testified and adopted her statement dated 22nd July 2024 which largely is an attack on the appellant character calling him a person of immoral behaviour, wicked disrespectful and rude. In court however, the respondent stated that she has four children with the appellant who all attend a private school (name withheld) and pays the following amounts as school fees per term; 45,000 for the first born, ksh 38,000 for the 2nd born and ksh.20,000 for both the 3rd and 4th born. She told the court that it was an onerous responsibility to take care of the four children on her own and asked the court to accede to her request.
5. In cross examination by counsel for the appellant, the respondent stated that she is a police officer earning a salary. That she took a loan and built the house she occupies without the assistance of the appellant and that she does not pay rent for the house. She also told the court that she has registered all the children with SHA medical cover although the same is not enough to cover all the medical expenses. It is her case that the maintenance sought is for purposes of buying food for the children. In re-examination, the witness told the court that the house they are living in was built for them by her husband.
Appellant case
6. The appellant (DW1) adopted his statement dated (sic) 19th June 2025- although the one on the court file is dated 24th June 2025 -as his evidence in chief. He stated in his statement that the respondent had in April 2024 moved into his father house and displaced him altogether forcing him to make alternative accommodation for his father further incurring additional expenses. That he used to work as a truck driver in the USA but the business went bad and he was forced to change to an uber driver. As an uber driver, his income is not steady and fluctuates from time to time. He avers that on average he earns between 4500 to 5000 USD before deductions which includes rent of 1500 USD, utility bills and food at 1200 USD and 500 monthly for insurance. He also stated that he has two wives with children whom he is taking care of. With the challenges he is going through, he told the court that he could only afford ksh.40,000 per month as maintenance for the children.
7. After hearing both parties and their respective submissions the trial court entered judgment in favour of the respondent and directed that the appellant shall pay ksh.80,000 as maintenance with effect from 30th September 2025 and continue providing shelter for the children.
8. Dissatisfied with the judgement of the court the appellant preferred the present appeal on the following grounds;
1) THAT the learned Magistrate erred in law and in fact by awarding monthly child maintenance of ksh. 80,000 without adequately considering the appellants financial capacity as per his testimony before the court.
2) THAT the learned Magistrate failed to take into account the appellants obligations on his wives, his children and his parents in ordering that he pays Ksh 80,000 in monthly maintenance of his children with the respondent
3) THAT the learned Magistrate failed to take into account the fact that the respondent is employed with a steady income and that she should contribute equitably to the maintenance of the children with the appellant.
4) THAT the learned Magistrate failed to consider that there was a dispute between the parties on which property belongs to the appellant and which the appellant asserted he built for the respondent and the property occupied by the respondent since 2024 in making an order for the appellant to continue providing shelter for the children.
9. The appellant therefore prays that the appeal be allowed and judgement delivered on 9th October 2025 be set aside and he be allowed to pay ksh.40,000 monthly as maintenance.
10. Both counsels filed submissions in this appeal which I shall set out herein below albeit in brief.
11. The appellant faults the learned magistrate finding which it submits is not based on any evidence as the respondent had not disclosed any evidence of her earning and or her monthly contribution to the children despite the fact that she was in gainful employment. The appellant contend that the trial court disregarded the appellants obligations to his other family and did not take into account the fact that at the time of his testimony he was unemployed. The appellant further submitted that the court did not apportion parental responsibility equally between the parties instead placed the responsibility of education, food, medical to the appellant. On the issue of shelter, it is the appellant submission that the respondent lives in a house which he built and is not paying any rent.
12. The respondent on the other hand submitted that the learned magistrate applied the law correctly in awarding ksh. 80,000 as reasonable monthly maintenance for the four children. Counsel cited the case of M.A.A VS A.B.S. (2018) where the court held that;
“… while considering this matter, this court is alert to the welfare of the children herein who are of tender years. The matter is not about the applicant/appellant and the respondent; and their interest are secondary to those of the child. The foregoing provisions require this court to treat the interest of the child as the first and paramount considerations and must do everything to interalia safeguard, conserve and promote the rights and welfare of the child herein. Acting in the best interest of the children in question”.
13. It is submitted that parental responsibility under section 31 of the Children Act means all duties, rights, powers and responsibilities which by law a parent of a child has in relation to the child. Therefore, in financial terms, the children require school fees, access to good medical health care, food, clothing and shelter and the amount awarded by the court in view of inflationary factors is even less that what can sustain good livelihood.
14. The respondent submitted that the appellant has not tendered evidence to show that he has other children and wives and how much is spent on the other family if at all neither was it demonstrated by evidence that the appellant was relieved of his duties.
15. It is the respondent contention that the amount of ksh 80,000 awarded by the trial court covered education, food, and supplementing medical cover for the minors and all the other needs of the children under section 31 and 32 of the children Act was left to the respondent.
Analysis and Determination
16. I have given due considerations to the evidence before me which includes the proceedings in the lower court, the statements adopted by the parties as constituting their evidence in chief, brief oral testimonies and their respective counsel submissions.
17. This being a first appeal, this court is required pursuant to section 78 of the civil procedure to which children matters apply, to examine the trial court record and the evidence and draw own conclusions bearing in mind however the limitation inherent in the fact that it never heard or saw the witnesses testify. This principle of law was settled in the case of Selle vs Associated Motor Boat Co. Ltd (1968) EA 123 and many subsequent decisions of the superior court where the court stated that;
“An appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”
18. Article 53 (1) (e) of the constitution provides that “Every child has a right 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.” The best interest of a child is therefore paramount considerations in every matter concerning the child and such matter that concerns the child, includes maintenance and the exercise of parental responsibility. Ordinarily, parental care and protection should flow naturally by virtue of the fact that the parents begotten the children and those children’s needs under section 31 and 32 should be taken care of fully. However, this is not always the case hence the law which places a duty upon the parents and other state actors to ensure that the children interest even in situation of conflict between the parents are safeguarded.
19. Section 114(1) of the children Act 2022 sets out the financial considerations that should guide the court in making an order for a child’s maintenance. These conditions include;
1) The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future.
2) The financial needs, obligations, or responsibilities, which each party has or is likely to have in the foreseeable future
3) The financial needs of a child and the child’s current circumstances.
20. From the above provisions the Children Act, it is without doubt that parental responsibility is not an obligation of one parent alone. It’s a joint effort of both parents though not necessarily the same. In CIN VS JNN (2014) eKLR the court expressed observed that; “it will not do for a party to say that she has an uncertain source of income and therefore the responsibility of maintaining the children should be borne by the adverse party. The (said) party must establish to the satisfaction of the court that she has also made an effort to provide for the upkeep of the children”.
21. In determining what each parent should contribute towards care, maintenance and protection of the children, it is imperative especially in situation where both parents are in one form of gainful employment or another to provide affidavit of means to enable the court apportion financial and other obligations in a way that is both realistic and enforceable. This is so because, maintenance and the amount of money one has to pay in respect of a child is not fixed by law. It is based on facts and circumstances of each case. From the proceedings in the magistrate court, neither the appellant nor the respondent filed affidavits of means to support their respective positions. The appellant admittedly works in USA previously as a truck driver with a definite income and expenses. And even in later years as an uber driver, it was still possible to ascertain one’s income and expenses. The appellant attempted to do that but without any supporting documents.
22. On the other hand, the respondent is a police officer whose rank was not disclosed, with a steady monthly income easily ascertainable by provisions of a pay slip. Her earning capacity was not availed and as noted by the magistrate court, the fees structure for the total amount of school fees for the four children was similarly not availed. The parties apparent reluctance or omission to provide material evidence to support their respective earnings meant that the court determination on the amount to be paid as maintenance was at most left to the magistrate discretion based on his assessment of the evidence before him.
23. It is not also enough for the appellant to say that he has another family and children to take care of as a basis to ran away from his current obligations. Since he made his bed, he must lie on it as choices have consequences.
24. Having reviewed the evidence in its totality and based on the material available I make the following orders;
1) THAT the judgement of the learned magistrate dated 9th October 2025 is hereby set aside and substituted with an order that the appellant shall pay to the respondent Ksh. 60,000 per month effective 30th September 2025.
2) THAT as the respondent admits living in a house where she does not pay any rent, she shall take up the responsibility to shelter the children until such a time when circumstances change.
3) In the event that circumstance change, the respondent is at liberty to apply.
4) THAT this being a family matter, each party shall bear its own