1. The appellant and the respondent are ex-spouses. Their union was blessed with one child, ANM, a girl, who was 7 years and 6 months old on 7th August 2023 when the suit in the court below was commenced.
2. In the said suit, the appellant, as the plaintiff, sought the following orders:-
1. Sole legal custody of the child ANM;
2. Sole physical custody of ANM;
3. Liberty to apply for a passport for ANM and to travel with her out of the country for vacation;
4. Order that the child can study at the current school or any other school to be determined by him; and
5. Each party to bear his/her own costs.
3. The basis of the suit was that the plaintiff had been paying the child’s school fees at Oshwal Academy in Mombasa and intended to continue doing so until she reached the highest possible level of education. He averred that the respondent was not a suitable parent, having allegedly been in extramarital affairs with women. The plaintiff alleged that the respondent’s latest lover was a woman he identified as BM, and that this affair caused their marriage to break down, despite several attempts to reconcile.
4. It is evident from the plaint that the foundation of the suit was the allegation that the respondent wasn’t a good parent because of her alleged lesbian sexual orientation, which the plaintiff averred posed a risk of corrupting the child.
5. In her written statement of defence and counterclaim dated 31st August 2023, the respondent denied that she was a lesbian. She averred that she is heterosexual (or “straight” as stated in her defence). She contended that her travels to Nairobi were for study or to meet family members. She also denied that she had denied the appellant access to the minor and accused him of ceasing to meet the child’s needs.
6. The respondent counterclaimed, seeking maintenance for the child. She also sought joint legal custody of the child, as both are the child's biological parents, and physical custody with unlimited access to the appellant. She further sought orders compelling the appellant to pay school fees directly to the school, to cater for school-related expenses, and to provide maintenance orders as particularized in the counterclaim.
7. The matter was heard on the merits by way of viva voce evidence on 14th August 2025 and 14th September 2025. I will not rehash the evidence here.
8. The court below, after considering the pleadings, the evidence, and the submission of the parties, made the following determination:-
i It determined that no evidence conclusively showing that the respondent was a lesbian had been produced;
ii Regarding custody, it found that since the child was of tender years, actual physical custody would remain with the respondent. The court relied on Githunguri v Githunguri [1979] KECA 2 (KLR). The learned magistrate found that there was no exceptional reason in this case to displace the presumption that actual custody shall remain with the mother and held that “the primary physical custody of the child shall therefore remain with the mother;
iii Legal custody would be joint;
iv The appellant to have unlimited access on alternate weekends between 9 am on Saturday to 3 pm. On Sunday and daily video access between 7 and 7:30pm. The parents would share custody during school holidays;
v The parents were granted the liberty to travel with the child outside the country whenever they had custody and upon notification to the other parent;
vi Noting that there was a pending matrimonial property dispute, the court ordered that the shelter would be provided by the respondent and that she would be responsible for payment of utilities;
vii The appellant would pay school fees and provide medical cover;
viii The appellant to pay Kes 45,000/- as the child’s upkeep; and
ix Cost of entertainment and clothing would be shared.
9. The appellant was aggrieved by the said decision and filed the instant appeal. The appeal raises 6 grounds. The grounds are that the learned magistrate failed to properly consider the evidence adduced and improperly placed most of the burden of maintaining the child on the appellant, despite both parties having equal parental responsibility. The appellant contended that the court below failed to take into account the fact that the respondent is a woman of means. Lastly, it was stated that the access orders were unclear.
10. The appellant therefore seeks the following orders:-
i The appeal be allowed with costs; and
ii The Judgment and the decree of the court below delivered on the 30th day of October 2025 in Mombasa TCC No.408 of 2023 before the Hon. Nelly Chepchirchir be set aside in terms of the grounds of appeal herein.
11. The appeal was canvassed through written submissions. In submissions dated 22nd January 2026, the appellant prayed that the appeal be allowed and that the court issue a “fair and equitable proportionate order on parental responsibility and make clear orders on weekend access.”
12. The appellant’s counsel submitted that the learned magistrate did not properly analyze the evidence and didn’t take into account the fact that whereas he was an employee/director of Nairobi Homes Ltd and co-director of Lexoha Ltd, the respondent was a director of Lexoha Ltd and ran an Airbnb business in the name of Araa Interior and that she admitted making Kes 700,000/- in a bad month.
13. Counsel submitted that it was wrong for the court to leave the issue of school to the parties. This court was urged to determine the issue.
14. It was also submitted that orders as to custody were indeterminate and unclear. Counsel urged this appellate court to make a clear determination regarding the said issue.
15. In the submissions dated 25th February 2026, the respondent’s counsel admitted at paragraph 9 that “the parents are both in profit-making businesses.” It was contended that the child was born into privilege.
16. The Respondent, relying on the case of Chemagong v Republic [1984] KECA 64 (KLR), contended that this court should not interfere with the determination of the court below as the same was sound in law. In the said case, the Court of Appeal expressed itself as follows:
“A court on appeal will not normally interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did. In the present case, we think the preponderance of the evidence clearly showed that the appellant suffered from epilepsy and was prone to fits at frequent intervals. We think that the judge misapprehended the effect of the evidence on this issue and should have held that the appellant suffered from epilepsy as a disease.”
17. It was contended that the decision of the learned magistrate was based on solid evidence, did not amount to a misapprehension of the evidence, and that it had not been shown demonstrably that she acted on a wrong principle in reaching her findings.
18. Regarding the maintenance of Kes 45,000/= it was urged, on the basis of the decision of the court in JCK v EC [2025] KEHC 11964 (KLR), that no error or injustice was apparent in the decision of the court below as to justify disturbing it.
19. Counsel contended that the maintenance sums should not be reviewed as the appellant came to court with unclean hands. This court referred to the judgment in MN V TAN & ANOTHER [2015] eKLR.
20. It was urged that there was no error in the Judgment as would justify having this court review the same.
21. This is the first appeal. The duty of the first appellate court was defined authoritatively in the case of Selle & another v Associated Motor Boat Company & Others (1968) EA 123, where it was held that:-
“This Court must consider the evidence, reevaluate it itself and draw its own conclusion, though in doing so, it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally”
22. Since the appeal is partly grounded on a grievance against the quantum of maintenance orders, which decision was grounded upon an exercise of judicial discretion, I will state the law regarding review of a decision of an inferior court in such matters. In Mbogo & Another v Shah [1968] EA93 it was held that:-
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it failed to take into consideration matter which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
23. I note that during the hearing, the respondent admitted that she had several companies, including Araa Interiors, which she solely owns. Further, she has 4 holiday houses, 3 of which have an ocean view, and she charges between Kes 9,000/- and 11,000/- per night. The houses are leased by her, and thus incur incidental costs. From the foregoing, it would appear to me that the respondent is not a woman of straw. To be fair to her, neither is the appellant. As she indicated, parties lead charmed lives.
24. I have perused the judgment carefully. It does not appear to me that the learned magistrate considered the respondent's ability to care for the child with sufficient diligence. Although it is true that the respondent has actual custody of the child and would therefore be under greater responsibility towards her, there was nevertheless a need for balance. The Judgement, in my view, placed greater responsibility on the appellant as he has the obligation to pay Kes 45,000/-, as child upkeep per month and also to fully pay the school fees, while the respondent has lighter obligations.
25. I agree with what the court stated in AAO v BOO [2025] KEHC 6209 (KLR). In the said case, the Court stated that:-
“…While the earnings and financial capacity of the parents is a ground for consideration in matters of child maintenance, none of the parents should be loaded with the responsibility of the child’s needs more than the other. That is the tenet of Article 53(1)(e) of the Constitution and Section 8 of the Children’s Act, Chapter 141 of the Laws of Kenya. Lack of work or income cannot be a reason for failure by any of the parents to take up their responsibilities. I agree with Honourable Justice J.N. Onyiego in MOA v HAO (2021) eKLR where he held that;
‘It will be too much to demand 100% maintenance from one parent while the other is playing the role of spectator yet claim to be a responsible parent. Children matters or needs should not be used to punish one parent at the comfort of another parent. Children should be viewed as a blessing to parents but not a curse. To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty-bound to contribute towards a child’s welfare.”
26. I agree that equal contribution does not mean the same thing in children's matters as it would in accounting. In AAO (supra), it was held that:
“Equitable share, of course, does not mean a cent-for-cent equality but in a manner that the burden is not skewed against any of the parties, considering the circumstances and needs of the child. What this court should consider is whether the apportionment by the magistrate was equitable in the circumstances of the parties with the best interest of the child being paramount consideration.”
27. The respondent is not indigent. Apart from her businesses, which I have adverted to, she drives a very good car, a Mercedes-Benz with registration number KDN. It would not be unreasonable to expect her to contribute towards the upkeep of the child.
28. In the circumstances, this court is justified in disturbing the Judgment of the court below on the ground that the learned magistrate misdirected herself by imposing a greater burden on the appellant.
29. On access, I have carefully reviewed the same. I find no reason to disturb the finding on access, as it is, in my view, reasonable. The directions given by the learned magistrate are clear and can be implemented without undue strain.
30. Regarding school, since the child is said to have been bullied, I am of the view that the magistrate was right to call on the parties to agree on schooling. The decision on schooling should be made, as much as possible, by the parents who are better able to appreciate their children's needs.
31. I therefore allow the appeal in part in the following terms:-
i The amount payable as maintenance shall be Kes 30,000/- per month, with effect from the date of this judgment. The 1st instalment shall be paid on or before 5th July 2026; and
ii The other orders shall be as per the judgment of the court below.
32. Due to the nature of the matter, each party shall bear his/her own costs.
33. It is so ordered.
Dated and signed at Nairobi this 1st day of July 2026.
2. In the said suit, the appellant, as the plaintiff, sought the following orders:-
1. Sole legal custody of the child ANM;
2. Sole physical custody of ANM;
3. Liberty to apply for a passport for ANM and to travel with her out of the country for vacation;
4. Order that the child can study at the current school or any other school to be determined by him; and
5. Each party to bear his/her own costs.
3. The basis of the suit was that the plaintiff had been paying the child’s school fees at Oshwal Academy in Mombasa and intended to continue doing so until she reached the highest possible level of education. He averred that the respondent was not a suitable parent, having allegedly been in extramarital affairs with women. The plaintiff alleged that the respondent’s latest lover was a woman he identified as BM, and that this affair caused their marriage to break down, despite several attempts to reconcile.
4. It is evident from the plaint that the foundation of the suit was the allegation that the respondent wasn’t a good parent because of her alleged lesbian sexual orientation, which the plaintiff averred posed a risk of corrupting the child.
5. In her written statement of defence and counterclaim dated 31st August 2023, the respondent denied that she was a lesbian. She averred that she is heterosexual (or “straight” as stated in her defence). She contended that her travels to Nairobi were for study or to meet family members. She also denied that she had denied the appellant access to the minor and accused him of ceasing to meet the child’s needs.
6. The respondent counterclaimed, seeking maintenance for the child. She also sought joint legal custody of the child, as both are the child's biological parents, and physical custody with unlimited access to the appellant. She further sought orders compelling the appellant to pay school fees directly to the school, to cater for school-related expenses, and to provide maintenance orders as particularized in the counterclaim.
7. The matter was heard on the merits by way of viva voce evidence on 14th August 2025 and 14th September 2025. I will not rehash the evidence here.
8. The court below, after considering the pleadings, the evidence, and the submission of the parties, made the following determination:-
i It determined that no evidence conclusively showing that the respondent was a lesbian had been produced;
ii Regarding custody, it found that since the child was of tender years, actual physical custody would remain with the respondent. The court relied on Githunguri v Githunguri [1979] KECA 2 (KLR). The learned magistrate found that there was no exceptional reason in this case to displace the presumption that actual custody shall remain with the mother and held that “the primary physical custody of the child shall therefore remain with the mother;
iii Legal custody would be joint;
iv The appellant to have unlimited access on alternate weekends between 9 am on Saturday to 3 pm. On Sunday and daily video access between 7 and 7:30pm. The parents would share custody during school holidays;
v The parents were granted the liberty to travel with the child outside the country whenever they had custody and upon notification to the other parent;
vi Noting that there was a pending matrimonial property dispute, the court ordered that the shelter would be provided by the respondent and that she would be responsible for payment of utilities;
vii The appellant would pay school fees and provide medical cover;
viii The appellant to pay Kes 45,000/- as the child’s upkeep; and
ix Cost of entertainment and clothing would be shared.
9. The appellant was aggrieved by the said decision and filed the instant appeal. The appeal raises 6 grounds. The grounds are that the learned magistrate failed to properly consider the evidence adduced and improperly placed most of the burden of maintaining the child on the appellant, despite both parties having equal parental responsibility. The appellant contended that the court below failed to take into account the fact that the respondent is a woman of means. Lastly, it was stated that the access orders were unclear.
10. The appellant therefore seeks the following orders:-
i The appeal be allowed with costs; and
ii The Judgment and the decree of the court below delivered on the 30th day of October 2025 in Mombasa TCC No.408 of 2023 before the Hon. Nelly Chepchirchir be set aside in terms of the grounds of appeal herein.
11. The appeal was canvassed through written submissions. In submissions dated 22nd January 2026, the appellant prayed that the appeal be allowed and that the court issue a “fair and equitable proportionate order on parental responsibility and make clear orders on weekend access.”
12. The appellant’s counsel submitted that the learned magistrate did not properly analyze the evidence and didn’t take into account the fact that whereas he was an employee/director of Nairobi Homes Ltd and co-director of Lexoha Ltd, the respondent was a director of Lexoha Ltd and ran an Airbnb business in the name of Araa Interior and that she admitted making Kes 700,000/- in a bad month.
13. Counsel submitted that it was wrong for the court to leave the issue of school to the parties. This court was urged to determine the issue.
14. It was also submitted that orders as to custody were indeterminate and unclear. Counsel urged this appellate court to make a clear determination regarding the said issue.
15. In the submissions dated 25th February 2026, the respondent’s counsel admitted at paragraph 9 that “the parents are both in profit-making businesses.” It was contended that the child was born into privilege.
16. The Respondent, relying on the case of Chemagong v Republic [1984] KECA 64 (KLR), contended that this court should not interfere with the determination of the court below as the same was sound in law. In the said case, the Court of Appeal expressed itself as follows:
“A court on appeal will not normally interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did. In the present case, we think the preponderance of the evidence clearly showed that the appellant suffered from epilepsy and was prone to fits at frequent intervals. We think that the judge misapprehended the effect of the evidence on this issue and should have held that the appellant suffered from epilepsy as a disease.”
17. It was contended that the decision of the learned magistrate was based on solid evidence, did not amount to a misapprehension of the evidence, and that it had not been shown demonstrably that she acted on a wrong principle in reaching her findings.
18. Regarding the maintenance of Kes 45,000/= it was urged, on the basis of the decision of the court in JCK v EC [2025] KEHC 11964 (KLR), that no error or injustice was apparent in the decision of the court below as to justify disturbing it.
19. Counsel contended that the maintenance sums should not be reviewed as the appellant came to court with unclean hands. This court referred to the judgment in MN V TAN & ANOTHER [2015] eKLR.
20. It was urged that there was no error in the Judgment as would justify having this court review the same.
21. This is the first appeal. The duty of the first appellate court was defined authoritatively in the case of Selle & another v Associated Motor Boat Company & Others (1968) EA 123, where it was held that:-
“This Court must consider the evidence, reevaluate it itself and draw its own conclusion, though in doing so, it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally”
22. Since the appeal is partly grounded on a grievance against the quantum of maintenance orders, which decision was grounded upon an exercise of judicial discretion, I will state the law regarding review of a decision of an inferior court in such matters. In Mbogo & Another v Shah [1968] EA93 it was held that:-
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it failed to take into consideration matter which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
23. I note that during the hearing, the respondent admitted that she had several companies, including Araa Interiors, which she solely owns. Further, she has 4 holiday houses, 3 of which have an ocean view, and she charges between Kes 9,000/- and 11,000/- per night. The houses are leased by her, and thus incur incidental costs. From the foregoing, it would appear to me that the respondent is not a woman of straw. To be fair to her, neither is the appellant. As she indicated, parties lead charmed lives.
24. I have perused the judgment carefully. It does not appear to me that the learned magistrate considered the respondent's ability to care for the child with sufficient diligence. Although it is true that the respondent has actual custody of the child and would therefore be under greater responsibility towards her, there was nevertheless a need for balance. The Judgement, in my view, placed greater responsibility on the appellant as he has the obligation to pay Kes 45,000/-, as child upkeep per month and also to fully pay the school fees, while the respondent has lighter obligations.
25. I agree with what the court stated in AAO v BOO [2025] KEHC 6209 (KLR). In the said case, the Court stated that:-
“…While the earnings and financial capacity of the parents is a ground for consideration in matters of child maintenance, none of the parents should be loaded with the responsibility of the child’s needs more than the other. That is the tenet of Article 53(1)(e) of the Constitution and Section 8 of the Children’s Act, Chapter 141 of the Laws of Kenya. Lack of work or income cannot be a reason for failure by any of the parents to take up their responsibilities. I agree with Honourable Justice J.N. Onyiego in MOA v HAO (2021) eKLR where he held that;
‘It will be too much to demand 100% maintenance from one parent while the other is playing the role of spectator yet claim to be a responsible parent. Children matters or needs should not be used to punish one parent at the comfort of another parent. Children should be viewed as a blessing to parents but not a curse. To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty-bound to contribute towards a child’s welfare.”
26. I agree that equal contribution does not mean the same thing in children's matters as it would in accounting. In AAO (supra), it was held that:
“Equitable share, of course, does not mean a cent-for-cent equality but in a manner that the burden is not skewed against any of the parties, considering the circumstances and needs of the child. What this court should consider is whether the apportionment by the magistrate was equitable in the circumstances of the parties with the best interest of the child being paramount consideration.”
27. The respondent is not indigent. Apart from her businesses, which I have adverted to, she drives a very good car, a Mercedes-Benz with registration number KDN. It would not be unreasonable to expect her to contribute towards the upkeep of the child.
28. In the circumstances, this court is justified in disturbing the Judgment of the court below on the ground that the learned magistrate misdirected herself by imposing a greater burden on the appellant.
29. On access, I have carefully reviewed the same. I find no reason to disturb the finding on access, as it is, in my view, reasonable. The directions given by the learned magistrate are clear and can be implemented without undue strain.
30. Regarding school, since the child is said to have been bullied, I am of the view that the magistrate was right to call on the parties to agree on schooling. The decision on schooling should be made, as much as possible, by the parents who are better able to appreciate their children's needs.
31. I therefore allow the appeal in part in the following terms:-
i The amount payable as maintenance shall be Kes 30,000/- per month, with effect from the date of this judgment. The 1st instalment shall be paid on or before 5th July 2026; and
ii The other orders shall be as per the judgment of the court below.
32. Due to the nature of the matter, each party shall bear his/her own costs.
33. It is so ordered.
Dated and signed at Nairobi this 1st day of July 2026.