'1. This Appeal arises from the Judgement and Decree of the Trial Court delivered on 26th June 2023 by Hon. L.K Sindani, Principal Magistrate in Tononoka Children Case No. E340 of 2022.
2. The Memorandum of Appeal dated 30th June 2023 set out 11 grounds of appeal. In my view the said grounds can be condensed into four grounds, that is say: -
i. The learned magistrate erred in law and fact in dismissing the Appellant’s Notice of Motion Application dated 28th February 2023.
ii. The learned magistrate erred in law and fact in failing to find that the invoice dated 9th January 2023 was a forged document and the statements in the Respondent’s Supporting Affidavit 27th January 2023 were false and perjuries.
iii. The learned magistrate erred in law and fact in ordering the Appellant to pay Ksh. 10,000 monthly up keep towards the minors.
iv. The learned magistrate erred in law and fact in issuing maintenance orders without evidence.
3. The Appellant sought the following reliefs:
(a) The Appeal be allowed
(b) That order 3 (a) and (b) of the Ruling dated 26th June 2023 be set aside and substituted with an order dismissing and/or striking out the Respondent’s Notice of Motion dated 27th June 2023 with costs.
(c) The Appellant’s Notice of Motion dated 28th February 2023 be allowed with costs.
(d) Costs of the Appeal be awarded to the Appellant.
4. I have perused the record of appeal, evidence contained therein, as well as the submissions and authorities filed by the parties in support and opposition to their respective cases.
5. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
6. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…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 has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
7. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
8. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
9. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
10. I understand Article 53 (1) of the Constitution of Kenya provides that a child’s welfare and best interest are of paramount importance in every matter concerning the child.
11. The Constitutional imperative is given effect by Section 8 of the Children Act 2022 Act No 29 of 2022 which provides as follows:
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a)the best interests of the child shall be the primary consideration;
(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 19 No. 29 of 2022 Children.
2. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a)safeguard and promote the rights and welfare of the child;
(b)conserve and promote the welfare of the child; and
(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.
12. The aforesaid principles are well anchored in the Convention on the rights of the child to which Kenya is a party. Under the UN Convention on the Rights of the Child (CRC) that Kenya ratified on 30 July 1990, Article 3 provides that:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
13. I therefore have no doubt that there are enough safeguards to guide this court in arriving at a finding founded on the welfare and best interest of the children in this case.
14. In the impugned Ruling dated 26th June 2023, the court below noted at page 5 as follows:
…The court determined the issues of shelter, rent, househelp and transport in its judgement which are the same issues she is asking for review. The only new thing introduced by the Plaintiff is the baking classes and the invoice attached. Although the Defendant claimed that the invoice was forged, the court could not tell from the face of it that it was a forged document.
…the Plaintiff now says that she is doing baking classes which information came after judgement. This being the case, therefore, the court agrees with her that she cannot stand on an equal standing on financial provision for the children as the Defendant who is working and has a stable income.
…it is not fair to burden her family fully with the burden of food and daily upkeep for the children.
15. It is evident that the decision the court made on 26th June 2023 was premised on the representation that the Respondent made that she was attending a baking school.
16. During the course of hearing the Appeal, a deposition made by one Paula Pamba was filed. The Affidavit is dated 29th July 2024 and filed by the form of EO Ratemo & Co Advocates in which she averred thus:
“8 that I wish to state that I am not aware of the said invoice neither do I know the author nor the Respondent herein to whom it is purportedly issued.
9 that for the avoidance of doubt, it is my testimony that I do not personally know the parties herein and I am not the maker of the invoice neither do I know whether the school exists or not.”
17. Given what Ms Paula Pamba deposed, this court draws the inevitable conclusion that that the court below was misled into reviewing its decision. The decision of the court below can therefore not stand. It is for setting aside.
18. In my analysis and reevaluation, I do not think it would be in the best interest of the minors herein for this court to do what the Appellant asked it to do as follows:
(a) Order 3 (a) and (b) of the Ruling dated 26th June 2023 be set aside and substituted with an order dismissing and/or striking out the Respondent’s Notice of Motion dated 27th June 2023 with costs.
(b) The Appellant’s Notice of Motion dated 28th February 2023 be allowed with costs.
19. The court is alive to the fact that the Judgement of the lower court was not appealed and is not subject of this appeal and what parties are grabbling with are Applications in the nature of reviewing the said Judgement. Having both a mother and father involved in a child’s life could provide significant social, psychological, and health benefits and despite the acrimony and considering the matters lamented in the Applications, this court deems it fit to set aside the Ruling but refer the parties back to the children’s court for a determination of the rival issues in their respective applications. As was held by the Supreme Court in MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment):
The society in which children grew up shaped who they were. Having both a mother and father involved in a child’s life could provide significant social, psychological, and health benefits. The stability of having a relationship with both parents could provide security and greater opportunities for children to find their own paths to success. Even if circumstances may warrant limited access to a parent, a court should order supervised access. The Supreme Court had the constitutional obligation to ensure that the child had access to parental care and protection as enshrined in the Constitution.
20. The parental responsibility of the parties herein is solemn and a delicacy that is both pinching and nourishing. It has to be shared and the roles of the parties must be determined as equal but are shaped in light of the demands that can be established of the children herein. I am fortified by the finding of the Court 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.
21. Under Section 23 of the Children Act it is provided thus;
1.“in this Act, parental responsibility “means all the duties , rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.
2. The duties referred to in Sub -section (1) include in particular-
(a) the duty to maintain the child and in particular to provide him with-
(i) Adequate diet
(ii) Shelter
(iii) Clothing
(iv) Medical care including immunization
(v) Education and guidance.
22. The Appellant and the Respondent thus have commons responsibilities towards the upbringing of the children and this court had the duty to uphold such responsibilities in line with the welfare and best interest of the children. Under Article 18 of the Convention on the Rights of the Child, it is stated thus:
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
23. In the circumstances, the conclusion reached by the lower court in the Ruling dated 26th June 2026 cannot stand as it was not supported. Allowing the parties to canvass their issues in the Applications afresh is in my view the best cause of action having reviewed the lower court record. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-
“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”
24. I have said enough to demonstrate that the Appeal is merited.
25. In the upshot, I make the following Order:-
(i) The Appeal is allowed in terms below.
(ii) Orders No. 2, 3 (a) and 3 (b) of the Ruling dated 26th June 2023 are hereby set aside;
(iii) The Notice of Motion Applications dated 27th January 2023 and 28th February 2023 be heard afresh by the Children’s Court differently constituted in light of the above finding;
(iv) The said Applications shall be heard and determined within 60 days of the date hereof; and
(v) This being a Children’s matter, each party to bear his or her own costs.
Dated and signed at Mombasa on this 11th day of February 2025. Judgment delivered virtually through Microsoft TEAMS.
'
2. The Memorandum of Appeal dated 30th June 2023 set out 11 grounds of appeal. In my view the said grounds can be condensed into four grounds, that is say: -
i. The learned magistrate erred in law and fact in dismissing the Appellant’s Notice of Motion Application dated 28th February 2023.
ii. The learned magistrate erred in law and fact in failing to find that the invoice dated 9th January 2023 was a forged document and the statements in the Respondent’s Supporting Affidavit 27th January 2023 were false and perjuries.
iii. The learned magistrate erred in law and fact in ordering the Appellant to pay Ksh. 10,000 monthly up keep towards the minors.
iv. The learned magistrate erred in law and fact in issuing maintenance orders without evidence.
3. The Appellant sought the following reliefs:
(a) The Appeal be allowed
(b) That order 3 (a) and (b) of the Ruling dated 26th June 2023 be set aside and substituted with an order dismissing and/or striking out the Respondent’s Notice of Motion dated 27th June 2023 with costs.
(c) The Appellant’s Notice of Motion dated 28th February 2023 be allowed with costs.
(d) Costs of the Appeal be awarded to the Appellant.
4. I have perused the record of appeal, evidence contained therein, as well as the submissions and authorities filed by the parties in support and opposition to their respective cases.
5. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
6. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…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 has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
7. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
8. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
9. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
10. I understand Article 53 (1) of the Constitution of Kenya provides that a child’s welfare and best interest are of paramount importance in every matter concerning the child.
11. The Constitutional imperative is given effect by Section 8 of the Children Act 2022 Act No 29 of 2022 which provides as follows:
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a)the best interests of the child shall be the primary consideration;
(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 19 No. 29 of 2022 Children.
2. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a)safeguard and promote the rights and welfare of the child;
(b)conserve and promote the welfare of the child; and
(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.
12. The aforesaid principles are well anchored in the Convention on the rights of the child to which Kenya is a party. Under the UN Convention on the Rights of the Child (CRC) that Kenya ratified on 30 July 1990, Article 3 provides that:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
13. I therefore have no doubt that there are enough safeguards to guide this court in arriving at a finding founded on the welfare and best interest of the children in this case.
14. In the impugned Ruling dated 26th June 2023, the court below noted at page 5 as follows:
…The court determined the issues of shelter, rent, househelp and transport in its judgement which are the same issues she is asking for review. The only new thing introduced by the Plaintiff is the baking classes and the invoice attached. Although the Defendant claimed that the invoice was forged, the court could not tell from the face of it that it was a forged document.
…the Plaintiff now says that she is doing baking classes which information came after judgement. This being the case, therefore, the court agrees with her that she cannot stand on an equal standing on financial provision for the children as the Defendant who is working and has a stable income.
…it is not fair to burden her family fully with the burden of food and daily upkeep for the children.
15. It is evident that the decision the court made on 26th June 2023 was premised on the representation that the Respondent made that she was attending a baking school.
16. During the course of hearing the Appeal, a deposition made by one Paula Pamba was filed. The Affidavit is dated 29th July 2024 and filed by the form of EO Ratemo & Co Advocates in which she averred thus:
“8 that I wish to state that I am not aware of the said invoice neither do I know the author nor the Respondent herein to whom it is purportedly issued.
9 that for the avoidance of doubt, it is my testimony that I do not personally know the parties herein and I am not the maker of the invoice neither do I know whether the school exists or not.”
17. Given what Ms Paula Pamba deposed, this court draws the inevitable conclusion that that the court below was misled into reviewing its decision. The decision of the court below can therefore not stand. It is for setting aside.
18. In my analysis and reevaluation, I do not think it would be in the best interest of the minors herein for this court to do what the Appellant asked it to do as follows:
(a) Order 3 (a) and (b) of the Ruling dated 26th June 2023 be set aside and substituted with an order dismissing and/or striking out the Respondent’s Notice of Motion dated 27th June 2023 with costs.
(b) The Appellant’s Notice of Motion dated 28th February 2023 be allowed with costs.
19. The court is alive to the fact that the Judgement of the lower court was not appealed and is not subject of this appeal and what parties are grabbling with are Applications in the nature of reviewing the said Judgement. Having both a mother and father involved in a child’s life could provide significant social, psychological, and health benefits and despite the acrimony and considering the matters lamented in the Applications, this court deems it fit to set aside the Ruling but refer the parties back to the children’s court for a determination of the rival issues in their respective applications. As was held by the Supreme Court in MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment):
The society in which children grew up shaped who they were. Having both a mother and father involved in a child’s life could provide significant social, psychological, and health benefits. The stability of having a relationship with both parents could provide security and greater opportunities for children to find their own paths to success. Even if circumstances may warrant limited access to a parent, a court should order supervised access. The Supreme Court had the constitutional obligation to ensure that the child had access to parental care and protection as enshrined in the Constitution.
20. The parental responsibility of the parties herein is solemn and a delicacy that is both pinching and nourishing. It has to be shared and the roles of the parties must be determined as equal but are shaped in light of the demands that can be established of the children herein. I am fortified by the finding of the Court 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.
21. Under Section 23 of the Children Act it is provided thus;
1.“in this Act, parental responsibility “means all the duties , rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.
2. The duties referred to in Sub -section (1) include in particular-
(a) the duty to maintain the child and in particular to provide him with-
(i) Adequate diet
(ii) Shelter
(iii) Clothing
(iv) Medical care including immunization
(v) Education and guidance.
22. The Appellant and the Respondent thus have commons responsibilities towards the upbringing of the children and this court had the duty to uphold such responsibilities in line with the welfare and best interest of the children. Under Article 18 of the Convention on the Rights of the Child, it is stated thus:
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
23. In the circumstances, the conclusion reached by the lower court in the Ruling dated 26th June 2026 cannot stand as it was not supported. Allowing the parties to canvass their issues in the Applications afresh is in my view the best cause of action having reviewed the lower court record. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-
“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”
24. I have said enough to demonstrate that the Appeal is merited.
25. In the upshot, I make the following Order:-
(i) The Appeal is allowed in terms below.
(ii) Orders No. 2, 3 (a) and 3 (b) of the Ruling dated 26th June 2023 are hereby set aside;
(iii) The Notice of Motion Applications dated 27th January 2023 and 28th February 2023 be heard afresh by the Children’s Court differently constituted in light of the above finding;
(iv) The said Applications shall be heard and determined within 60 days of the date hereof; and
(v) This being a Children’s matter, each party to bear his or her own costs.
Dated and signed at Mombasa on this 11th day of February 2025. Judgment delivered virtually through Microsoft TEAMS.
'