REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
FAMILY APPEAL NO. E004 OF 2025
DIETER FRIEDRICH STOLTEFAUT.....................................................APPELLANT
VERSUS
JACQUALINE ADHIAMBO KOWA.........................................................,.DEFENDANT
JUDGMENT
1. The appeal and cross-appeal herein arise from a Children’s case before the Magistrate’s court where the respondent sought various orders against the appellant in a plaint dated 12 th May 2025. She also filed her witness statement of the same date. Alongside the plaint, the respondent filed a chamber summons application of the same date supported by her affidavit. The appeal arises from a ruling on the application. The application sought the following orders that:
a. pending the hearing and determination of the application, the court to issue an order restraining the respondent/defendant (the appellant/respondent to the cross-appeal herein), Dieter Friedrich Stoltefaut, a German national domiciled in Kenya, from leaving the jurisdiction of the court.
b. an order be issued directing the respondent/defendant to deposit his passport and any other travel document in his possession in custody of the court forthwith.
c. the orders issued herein be served upon the Director General of Immigration services to ensure compliance.
d. The court to grant actual custody of the minor, L. K. S. to her mother, the applicant/plaintiff (the respondent and cross appellant herein).
2. The appellant responded to the application by way of a replying affidavit sworn on 31 st May 2025 and also a reply to the chamber summons also indicated to be sworn before an advocate on 28 th May 2025.
3. The lower court directed that the matter be heard viva voce and parties testified before it on various dates. After submissions the lower court delivered a ruling dated 8 th October 2025 and made various orders being:
a. Actual and physical custody of the minor as well as access.
b. School fees and related expenses including DayCare.
c. Househelp fee.
d. Utilities including electricity and gas
e. Security, gardener and dog food.
f. Medical care and clothing.
g. Maintenance.
h. Restraining order against leaving Kenya
4. The appellant was dissatisfied with some of the orders and filed his appeal through the memorandum dated 5 th November 2025 raising various grounds. Alongside the appeal, he filed an application by way of notice of motion dated 5 th November 2025 and sought an order of stay of execution of the ruling, decree, warrants and/or consequential orders issued by the Children’s Court pending the hearing and determination of the appeal.
5. I find only one ground in support of the application. That the appellant is unable to satisfy the lower court order that he meets the maintenance costs of the minor at KShs 10,000/= per month and the househelp’s monthly pay of KShs 10,000/=, the same being excessive considering the appellant’s income of KShs 60,000/= per month from his retirement benefits.
6. There is also another issue that the lower court made an order that was not clear on who between the appellant and the respondent was to meet maintenance costs of KShs 30,000/=. According to the appellant, the lower court directed that this item be met by the respondent. However, in the event that it was to be met by the appellant, it would be as averred earlier excessive and unreasonable for the same reasons.
7. The respondent was also dissatisfied with part of the lower court orders and filed the cross-appeal. The main ground raised by the respondent in the cross-appeal is that the trial court erred in making an order that the respondent herein contributes KShs 30,000/= per month towards the maintenance of the minor. She therefore prays that the same be set aside and substituted with an order that the said maintenance be borne by the appellant herein in full or in such a proportion as this court shall deem just in accordance with the appellant’s financial capacity.
8. This court finding that it would not be appropriate to order a stay of execution in the circumstances, directed the parties to file submissions on the substantive appeal. For instance, in the case of RWW vs. EKW CIVIL APPEAL NO. 13 OF 2013 [2019] eKLR the High Court, Musyoka, J. stated with respect to staying maintenance orders in Children matters, a position I associate with that ;
“As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same.”
9. The parties filed their respective submissions.
10. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
11. At the same time this court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to consider, reanalyze and re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
12. The principles which guide the circumstances under which an appellate court can justifiably interfere with a finding of fact by the trial court as set out in the cases of Ephantus Mwangi and another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR are:
i. The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
ii. The trial court misapprehended the evidence in some material respect.
iii. The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
iv. The trial court failed to take account of a particular circumstance or probability material to an estimate of the evidence
v. The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally.
13. I have considered the appeal and the cross appeal. The issue for determination is whether or not the orders made by the lower court on the application should be interfered with at this point. I find that the main contention of each of the parties is that the trial court did not properly evaluate the financial means of the parties before making the orders of provision for the minor that it did. Each party’s position is that he or she does not have the means to meet some of the costs for the upkeep of the minor as ordered by the trial court. The party therefore wants this court to revise that order.
14. I have anxiously considered the appeal and cross-appeal herein and I have come to the conclusion that the same were filed prematurely before this court. Even as the trial court took the evidence of the two parties viva voce the same was only on the interlocutory application. Try as as it should, this court will end up coming up with orders that would inevitably impact the main suit pending before the trial court yet full evidence had not been taken. I have gone through the entire proceedings of the trial court to find out at what point the trial court dispensed with hearing of the application and proceeded with the main suit but I do not see any point where the court directed that the application be converted into the main hearing of the suit. What I note is that at one point learned counsel for the respondent herein informed the court that the minor was unwell and required urgent medical attention but that her mother had run out of means of subsistence and required the input of the appellant. The appellant then said that he was willing to give his input but he had been denied access to the minor by the respondent.
15. The court made some provisional orders for the minor to be taken for medical attention and the bill to be shared by the parties equally. After that the application came up for hearing when the evidence of the respondent was taken viva voce. The appellant also gave his evidence viva voce afterwards.
16. I have also noted that after delivering the ruling the court fixed the matter for pre-trial, meaning that the main suit was yet to be heard and determined.
17. Yet it is evident that the orders granted by the trial court were not in consonance with the prayers made in the chamber summons application. It is apparent that that the lower court deviated from the application and went into issues that were not part of the application. The result was that the court made what appear to be final orders concluding the suit before it on inadequate evidence.
18. Perhaps the trial court went a little too far in requiring viva voce hearing at that stage. I have looked at the submissions filed before the trial court. I note that the respondent’s (appellant herein) submissions went way out of the application to address the prayers in the suit. These submissions combined with the viva voce evidence taken seem to have carried away the trial magistrate into making her ruling on the main suit and not confining herself to the application. That was an error because the court delved into issues that it ought not to at the interlocutory stage and that has to be corrected.
19. I note that the only party that filed an affidavit of means was the appellant herein. I have not seen one filed by the respondent yet both are important for a proper determination of the suit. Learned counsels made the best of their cases through cross-examination but without filed affidavit of means, there was not much that could be elicited from the parties.
20. It is quite apparent as happens in most of the cases for child upkeep and maintenance that each party tries to pull the case on his or her side such that a party would under-declare his or her financial means while exaggerating that of the other party. An affidavit of means would bind a party to its contents, being well aware that deliberate concealment would expose him or her to perjury. With that on record and with cross-examination, the court is able to make a balanced decision on the financial contribution towards the upkeep of the minor that each party should make.
21. The trial court having fixed the matter for pre-trial, I think it is best to have the matter proceed for full trial where all the evidence will be brought in by the parties and the trial court can then make a final determination of the issues.
22. However, whereas the application did not make a prayer for an order of upkeep and maintenance of the minor, yet that is not an issue that can be left in abeyance. The trial court made orders in respect of the financial obligations of each of the parents towards the upkeep and maintenance of the minor. Considering the evidence tendered before the trial court which even though was not meant to be relied upon to make final orders as the learned magistrate did, I find that the same were within the means of each of the parties as per their respective testimonies. Consequently, I will not disturb those orders at this point so as to avoid appearing to determine the suit that is before the trial court. I will therefore leave the orders as made by the trial court to remain in force only on interim basis pending the hearing and determination of the main suit. For clarity, the court considering the main suit is at liberty to depart from any and all of the orders made on the application if the evidence will so dictate.
23. For those reasons, I find no merit in both the appeal and the cross-appeal and the same are dismissed. Each party will meet its own costs of the appeal.
24. It is further directed that the suit before the trial court be fixed for pre-trial and hearing to be concluded within ninety days from the date of first mention before the trial court. Mention before the trial court on 10 th June 2026.
25. Orders accordingly.
26. Dated, signed and delivered on the virtual platform, MicrosoftTeams this 29 th day of May 2026.
ANDAYI W.F
JUDGE
HCFA NO. E004/2025 Page 9/Maintenance and access
IN THE HIGH COURT OF KENYA AT KWALE
FAMILY APPEAL NO. E004 OF 2025
DIETER FRIEDRICH STOLTEFAUT.....................................................APPELLANT
VERSUS
JACQUALINE ADHIAMBO KOWA.........................................................,.DEFENDANT
JUDGMENT
1. The appeal and cross-appeal herein arise from a Children’s case before the Magistrate’s court where the respondent sought various orders against the appellant in a plaint dated 12 th May 2025. She also filed her witness statement of the same date. Alongside the plaint, the respondent filed a chamber summons application of the same date supported by her affidavit. The appeal arises from a ruling on the application. The application sought the following orders that:
a. pending the hearing and determination of the application, the court to issue an order restraining the respondent/defendant (the appellant/respondent to the cross-appeal herein), Dieter Friedrich Stoltefaut, a German national domiciled in Kenya, from leaving the jurisdiction of the court.
b. an order be issued directing the respondent/defendant to deposit his passport and any other travel document in his possession in custody of the court forthwith.
c. the orders issued herein be served upon the Director General of Immigration services to ensure compliance.
d. The court to grant actual custody of the minor, L. K. S. to her mother, the applicant/plaintiff (the respondent and cross appellant herein).
2. The appellant responded to the application by way of a replying affidavit sworn on 31 st May 2025 and also a reply to the chamber summons also indicated to be sworn before an advocate on 28 th May 2025.
3. The lower court directed that the matter be heard viva voce and parties testified before it on various dates. After submissions the lower court delivered a ruling dated 8 th October 2025 and made various orders being:
a. Actual and physical custody of the minor as well as access.
b. School fees and related expenses including DayCare.
c. Househelp fee.
d. Utilities including electricity and gas
e. Security, gardener and dog food.
f. Medical care and clothing.
g. Maintenance.
h. Restraining order against leaving Kenya
4. The appellant was dissatisfied with some of the orders and filed his appeal through the memorandum dated 5 th November 2025 raising various grounds. Alongside the appeal, he filed an application by way of notice of motion dated 5 th November 2025 and sought an order of stay of execution of the ruling, decree, warrants and/or consequential orders issued by the Children’s Court pending the hearing and determination of the appeal.
5. I find only one ground in support of the application. That the appellant is unable to satisfy the lower court order that he meets the maintenance costs of the minor at KShs 10,000/= per month and the househelp’s monthly pay of KShs 10,000/=, the same being excessive considering the appellant’s income of KShs 60,000/= per month from his retirement benefits.
6. There is also another issue that the lower court made an order that was not clear on who between the appellant and the respondent was to meet maintenance costs of KShs 30,000/=. According to the appellant, the lower court directed that this item be met by the respondent. However, in the event that it was to be met by the appellant, it would be as averred earlier excessive and unreasonable for the same reasons.
7. The respondent was also dissatisfied with part of the lower court orders and filed the cross-appeal. The main ground raised by the respondent in the cross-appeal is that the trial court erred in making an order that the respondent herein contributes KShs 30,000/= per month towards the maintenance of the minor. She therefore prays that the same be set aside and substituted with an order that the said maintenance be borne by the appellant herein in full or in such a proportion as this court shall deem just in accordance with the appellant’s financial capacity.
8. This court finding that it would not be appropriate to order a stay of execution in the circumstances, directed the parties to file submissions on the substantive appeal. For instance, in the case of RWW vs. EKW CIVIL APPEAL NO. 13 OF 2013 [2019] eKLR the High Court, Musyoka, J. stated with respect to staying maintenance orders in Children matters, a position I associate with that ;
“As a matter of principle, grant of stay of execution of maintenance orders in children's cases should be made in very rare cases. I say so because parents have a statutory and mandatory duty to provide for the upkeep of their minor children. There are no two ways about. Suspension of a maintenance order is not in the best interests of the child, particularly in cases such as this one, where paternity is not in dispute. To my mind once a maintenance order is made where parentage is undisputed it should not be suspended pending appeal, where the appeal is on the quantum payable. The solution ideally lies in expediting the disposal of the appeal and staying the matter before the Children's Court to wait the outcome of the appeal. Tinkering with the quantum at this stage would amount to determining the appeal before arguments are heard from both sides on the merits of the same.”
9. The parties filed their respective submissions.
10. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
11. At the same time this court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to consider, reanalyze and re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
12. The principles which guide the circumstances under which an appellate court can justifiably interfere with a finding of fact by the trial court as set out in the cases of Ephantus Mwangi and another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR are:
i. The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
ii. The trial court misapprehended the evidence in some material respect.
iii. The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
iv. The trial court failed to take account of a particular circumstance or probability material to an estimate of the evidence
v. The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally.
13. I have considered the appeal and the cross appeal. The issue for determination is whether or not the orders made by the lower court on the application should be interfered with at this point. I find that the main contention of each of the parties is that the trial court did not properly evaluate the financial means of the parties before making the orders of provision for the minor that it did. Each party’s position is that he or she does not have the means to meet some of the costs for the upkeep of the minor as ordered by the trial court. The party therefore wants this court to revise that order.
14. I have anxiously considered the appeal and cross-appeal herein and I have come to the conclusion that the same were filed prematurely before this court. Even as the trial court took the evidence of the two parties viva voce the same was only on the interlocutory application. Try as as it should, this court will end up coming up with orders that would inevitably impact the main suit pending before the trial court yet full evidence had not been taken. I have gone through the entire proceedings of the trial court to find out at what point the trial court dispensed with hearing of the application and proceeded with the main suit but I do not see any point where the court directed that the application be converted into the main hearing of the suit. What I note is that at one point learned counsel for the respondent herein informed the court that the minor was unwell and required urgent medical attention but that her mother had run out of means of subsistence and required the input of the appellant. The appellant then said that he was willing to give his input but he had been denied access to the minor by the respondent.
15. The court made some provisional orders for the minor to be taken for medical attention and the bill to be shared by the parties equally. After that the application came up for hearing when the evidence of the respondent was taken viva voce. The appellant also gave his evidence viva voce afterwards.
16. I have also noted that after delivering the ruling the court fixed the matter for pre-trial, meaning that the main suit was yet to be heard and determined.
17. Yet it is evident that the orders granted by the trial court were not in consonance with the prayers made in the chamber summons application. It is apparent that that the lower court deviated from the application and went into issues that were not part of the application. The result was that the court made what appear to be final orders concluding the suit before it on inadequate evidence.
18. Perhaps the trial court went a little too far in requiring viva voce hearing at that stage. I have looked at the submissions filed before the trial court. I note that the respondent’s (appellant herein) submissions went way out of the application to address the prayers in the suit. These submissions combined with the viva voce evidence taken seem to have carried away the trial magistrate into making her ruling on the main suit and not confining herself to the application. That was an error because the court delved into issues that it ought not to at the interlocutory stage and that has to be corrected.
19. I note that the only party that filed an affidavit of means was the appellant herein. I have not seen one filed by the respondent yet both are important for a proper determination of the suit. Learned counsels made the best of their cases through cross-examination but without filed affidavit of means, there was not much that could be elicited from the parties.
20. It is quite apparent as happens in most of the cases for child upkeep and maintenance that each party tries to pull the case on his or her side such that a party would under-declare his or her financial means while exaggerating that of the other party. An affidavit of means would bind a party to its contents, being well aware that deliberate concealment would expose him or her to perjury. With that on record and with cross-examination, the court is able to make a balanced decision on the financial contribution towards the upkeep of the minor that each party should make.
21. The trial court having fixed the matter for pre-trial, I think it is best to have the matter proceed for full trial where all the evidence will be brought in by the parties and the trial court can then make a final determination of the issues.
22. However, whereas the application did not make a prayer for an order of upkeep and maintenance of the minor, yet that is not an issue that can be left in abeyance. The trial court made orders in respect of the financial obligations of each of the parents towards the upkeep and maintenance of the minor. Considering the evidence tendered before the trial court which even though was not meant to be relied upon to make final orders as the learned magistrate did, I find that the same were within the means of each of the parties as per their respective testimonies. Consequently, I will not disturb those orders at this point so as to avoid appearing to determine the suit that is before the trial court. I will therefore leave the orders as made by the trial court to remain in force only on interim basis pending the hearing and determination of the main suit. For clarity, the court considering the main suit is at liberty to depart from any and all of the orders made on the application if the evidence will so dictate.
23. For those reasons, I find no merit in both the appeal and the cross-appeal and the same are dismissed. Each party will meet its own costs of the appeal.
24. It is further directed that the suit before the trial court be fixed for pre-trial and hearing to be concluded within ninety days from the date of first mention before the trial court. Mention before the trial court on 10 th June 2026.
25. Orders accordingly.
26. Dated, signed and delivered on the virtual platform, MicrosoftTeams this 29 th day of May 2026.
ANDAYI W.F
JUDGE
HCFA NO. E004/2025 Page 9/Maintenance and access