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JudgmentBRIVANNE MASHEMO VS MAUREEN OTINGA12 min read

BRIVANNE MASHEMO VS MAUREEN OTINGA

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


  1. This Appeal arises from a judgment delivered in Milimani Children’s Case No. E201 of 2023. The Appellant is aggrieved by the decision of the Honourable E M Muiru (PM), and has preferred this Appeal. The impugned judgment was delivered on 7th February 2024 and the Court ordered as follows;
  2. Both parties shall have joint legal custody of the minor
  3. The Plaintiff shall have physical and actual custody of the minor
  4. The defendant shall have reasonable access to the minor on alternate weekends either on Saturday or Sunday from 10am to 4pm. The said arrangement shall apply until the minor attains the age of 4 years old.
  5. Thereafter, the defendant shall have access on alternate weekends from Saturday 10am to Sunday 4pm. Once the minor starts school, the school holidays shall be shared equally with the defendant having the 1st half which shall be alternated.
  6. The defendant shall provide monthly upkeep of Kshs 6000/- to cater for food, payable to the plaintiff by the 10th of every month. The Plaintiff shall cater for the shortfall on food.
  7. The defendant shall provide for school fees and school related expenses for the minor once the minor attains school going age. Parties shall discuss and agree on the choice of school.
  8. The defendant shall provide medical cover and/ or  cater for the medical expenses.
  9. The Plaintiff shall provide shelter and clothing for the minor.
  10. There shall be no order as to costs this being a family matter.
  11. Each party is at liberty to apply.
  12. The Memorandum of Appeal is dated 13th February  2024  and is grounded as follows: -
  13. THAT the learned magistrate erred in law  and in fact by not considering the evidence of the appellant.
  14. THAT the learned magistrate erred in law and in fact as the ruling (sic) is not based on the evidence by the parties
  15. THAT the learned magistrate erred in law in fact by not considering the financial capability of appellant.
  16. The Appellant seeks the following orders
  17. THAT this appeal be allowed with costs.
  18. THAT the ruling (sic) delivered by Hon. Elizabeth Muriu ( PM) on the 9th February 2024 be set aside.
  19. THAT the Court do make such other or further Orders as it deems fit in the interest of justice.
  20. Pursuant to the Court’s directions that the appeal be canvassed via written submissions. The Appellant has filed their submissions dated 4th October 2024.

SUMMARY OF THE APPELLANT’S SUBMISSIONS.

  1. The Appellant framed the following as the issue for determination;
  2. Whether the parental responsibility apportioned to food provision by the trial court is just and fair to both parties, and supported by law?
  3. Whether the custodial arrangements have the optimal effect of ensuring that both parents have reasonable access to the child as far as maintaining relationships is concerned?
  4. Whether the trial magistrate erred in fact and law by failing to appreciate the totality of the evidence before him ( sic) and taking into account key considerations of the law thus reaching a conclusion that is contrary to the evidence on record and the law?
  5. The Appellant submits that Court ought to be guided by the best interest of the child Principle as articulated under Article 53(2) of the Constitutuion and Section 8(1) and (2) of the Children Act, 2022. It is his submission that this responsibility is to be equally shared and refers to the decision in PKM v ANM [2020] eKLR. He relies on the decision on SLM v DAM [2018] eKLR in his challenge to the judgement on the ground that court failed to assess what each parent ought to contribute towards the maintenance of the minor. He therefore urges that this court should revise downward his contribution towards the food expenses of the minor. It is his submission that in arriving at this figure along with the other responsibilities assigned to the Appellant, the Court did not consider his income and earning capacity.
  6. It is his submission that the Respondent was given less responsibility than him and this should be adjusted so that the responsibility is shared equally. Reference is made to the decision in C.I.N v J.N.N [2014] eKLR
  7. On custody, it is submitted that in the absence of any exceptional circumstances, as articulated in  J.O v S.A.O [2016] eKLR and  Sospeter Ojaamong v Lynette Amondi Otieno , Court of Appeal No. 175 of 2006, the Court should have granted him additional contact time with the minor. That the current orders prejudice him and are also not in the best interest of the minor.
  8. The Appellant invites the Court to ‘ delve into the factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions’. The Appellant submits that the Court will observe that the trial court did not consider the evidence on record in arriving at it’s decision.
  9. It is submitted that, as was stated in  S.K.M v M.W.I [2015] eKLR, maintenance orders should not be punitive. He submits that his circumstances have changed and he is now unemployed and can only afford Kshs 3000/- per month. He submits further that the Court should not allow the respondent to get away with the abuse of Court process and relies on the decision in M.O.A v H.A.O [2021] eKLR.
  10. It is his contention in determining the amount of maintenance the Court should not afford the child a life of luxury that does not factor in the income of the Appellant and is therefore onerous on him. He submits that the responsibility should be shared equally and relies on the decision in C.I.N v J.N.N [2014] eKLR. He states that apart from this minor he has 2 other children he provides for and that this is a factor that should be considered, he relies on the decision in  S.A.K v Z.D.N.P [ 2019] eKLR.
  11. It is submitted that in awarding custody to the Respondent the Court was not guided by the best interests of the child principle and that the Court instead considered the interest of the parties.

ANALYSIS AND DETERMINATION

  1. Having considered the pleadings herein, submissions filed and the relevant law, I frame the following as the issues for determination
    1. Whether it is in the best interests of the minor herein to vary the trial Court’s decision on custody?
    2. Whether it is in the best interests of the minor herein to vary the trial Court’s decision on maintenance?
  2. I remind myself that this court is sitting on a first appeal and as such I am under a duty to subject the evidence presented before the trial court to scrutiny in order to arrive at my own conclusions bearing in mind always that I did not have the opportunity to observe the witnesses first hand. In Selle & Another –vs- Associated Motor Boat Co. Ltd.& Others (1968) EA 123, the Court had the following to say in respect of the duty of a court sitting on first appeal:

“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of 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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally.

  1. The Respondent testified as a sole witness in her case. She and the Appellant are married and are the biological parents of the minor. She moved out of the matrimonial home on account of the violence against her by the Appellant and his infidelity. She denies having abandoned the child and stated that she had gone to the shop. At the time of the hearing the child was 1 year and 10 months. The minor is female. She denied having stolen the property of the Appellant as alleged and stated that  she placed the Television as security for a loan she took for fare and that she only learnt later that a bag she had taken from the house had the laptop of the Appellant. At the time of the hearing the Appellant was not providing for the child. She testified that she had provided a conducive environment for the child and the child is healthy.
  2. In his testimony the Appellant confirmed that he and the Respondent are man and wife and that the minor is their biological child. His marriage with the Respondent was strained on account of actions by the Respondent. It was the respondent who abandoned the child for close to 3 months and he was ordered by the Court to return the child to the Respondent. His evidence was that the Respondent had two other children from another relationship whom she had abandoned. He was of the view that the Respondent simply wanted his money.
  3. His evidence was that the respondent was not taking good care of the minor and he was better placed to take care of the child. He stated that the respondent is unemployed and therefore not well placed to provide for the minor.
  4. Donald Mwamburi Mwasi   also testified on behalf of the Appellant. He is a pastor and is aware that the Appellant and Respondnet had marital challenges that he tried to mediate without  success.
  5. The Court also called for and received a report from the Sub County Children’s Office, Embakasi Sub County dated 16th May 2023. The Children’s officer interviewed both the Appellant and the Respondent and undertook home visits. The report indicated that both the Appellant and the Respondent had well furnished houses and have provided a conducive environment for upbringing the minor. Further the report observed that the minor was jovial and happy and has bonded well with her biological mother. The Children Officer in her report recommended that both parties be granted shared custody and responsibilities of the minor.
  6. In her 10 page judgment the trial magistrate analysed the evidence of the witnesses at page 2 and 3. She further identified the issues for determination as being
    1. Custody
    2. Maintenance
    3. Costs of the suit
  7. The Magistrate reminded herself of the best interests of the child principle and then proceeded to consider each of the issues that she had identified for determination. On custody, the Court was guided by  Section 103 (1) of the Children Act, 2022; the Supreme Court decision in MAK vs RMAA & 4 OTHERS Petition No. E003 of 2022; decision in Sospeter Ojammong vs Lynette Amondi Otieno Court of Appeal Civil Case No. 175 of 2006; decision in SMM vs ANK NAKURU HIGH COURT CHILDREN APPEAL NO. E011 OF 2021: The Court also relied on the report of the Children’s Officer; and having done so arrived at the conclusion that since the minor was a child of tender years it was in the best interests of the child to be in the custody of the mother.
  8. On access to the minor by the Appellant the Court reflected on the provisions of Section 103 (2) of the Children Act and the decision in in MAK vs RMAA & 4 OTHERS (Supra) and observed that ‘the respondent as the biological father is entitled to have access to the child as it is important for a child to have a relationship with both parents’.
  9. On maintenance, in arriving at quantum and distribution of the responsibility between the Appellant and the respondent the court was guided by Article 53(1)(e) and Sections 31, 32, 114(2) of the Children Act and the decisions on SKM vs MWI [2015] eKLR; E.M.M vs M.O.O Naivasha HCA 53/ 2015 and M.O.A vs H. A.O [2021] eKLR. The Court observed that both parties did not illustrate their income to the Court. The Court then proceeded to give final orders as enumerated in paragraph 1 above.
  10. In the case of Mbogo & Another v Shah (1969) EA 93, it was held, inter alia, that:

An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.

  1. The above issue was also considered by the Supreme Court of Kenya in the case of Apungu Arthur Kibira v Independent Electoral and Boundaries Commission & 3 Others [2019] eKLR where the court stated as follows in paragraph 39 of the judgment:

We reiterate that in an appeal from a decision based on an exercise of discretionary power, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir (2010)NZSC 112; (2011)2 NLRI (Kacem) where it was held para 32]:“In this context a general appeal is to be distinguished from an appeal against the decision made in exercise of discretion. In that kind of case, the criteria for a successful appeal are stricter: (i) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.

  1. On custody, the Appellant’s challenge is hinged on the fact that the Court did not consider the evidence on record and further that the orders of the Court are not in the best interests of the child as the orders do not allow him reasonable access so as to maintain relationships.
  2. He further contend that the Court did not consider the evidence that challenged the suitability of the respondent. I must state that the submissions of the Appellant are not supported by the record. I have deliberately set out in detail the analysis of the trial court in arriving at her decision. Based on the parameters set out in the Supreme Court decision in Apungu Arthur Kibira v Independent Electoral and Boundaries Commission & 3 Others (Supra), a basis has not been laid that would justify my interfereing with the discretion of the Court. Accordingly I uphold the decision of the Court on the custody arrangements.
  3. On maintenance, the Appellant challenges the decision of the trial court on multiple fronts. That the Court did not consider the evidence on record, the Court did not consider his financial ability, the decision must be faulted as it did share the responsibility equally between the Appellant and the Respondent; there is also the suggestion that the quantum set by the court was ‘luxurious’.
  4. As set out above, the trial court was very detailed in its analysis and in my view correctly analysed the law and legal precedent on how the Court should arrive at an order of maintenance. On whether the Court must share the responsibility equally. In DS ( Minor suing through her Mother) JMM v CKK [2021] eKLR the Court observed

[22]It is also true that though parental responsibility is to be shared, it can never be equal. The court must take into account the financial capability of each parent. This position was stated in M.K. vs C.K.K HCA. 51/2015 where the court held:-

“Parental responsibility is shared and not equal based on the financial position of each parent. The mother as the resident parent has a nurturing role to the children and the father to provide maintenance and upkeep of the children.

  1. The evidence before the trial court was that the Appellant was in salaried employment while the respondent was a saloonist. Neither of the parties submitted an affidavit of means. The Court correctly considered the needs of the Child as being a paramount consideration. Food allowance of kshs 9000 per month works out at kshs 300 per day. The Appellant with a contribution of Kshs 6000 will be contributing Kshs 200 per day. I do not agree that this amount can be decribed as luxurious and therefore indefensible.
  2. Consequently on account of the foregoing I find no fault in the judgment of the trial Court and uphold the same. The Appeal is accordingly dismissed in its entirety.
  3. On account of the relationship between the parties, each party will bear their own costs.

SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…7th day of March 2025


    BRIVANNE MASHEMO VS MAUREEN OTINGA BRIVANNE MASHEMO VS MAUREEN OTINGA