EDGAR WANYAMA KULUNDU ........................................... APPELLANT
VERSUS
RUTH SYOKAU TITUS ...................................................... RESPONDENT
(Being an Appeal from the Ruling and Orders of Hon. Jackie Kibosia (PM) delivered on 16 ᵗʰ August, 2024 in Nairobi Children’s Case No. 984 of 2018)
1. The Appellant, being dissatisfied with the Ruling and Orders of Hon. Jackie Kibosia (PM) delivered on 16 ᵗʰ August, 2024 in Nairobi Children’s Case No. 984 of 2018 , filed the Memorandum of Appeal dated 30 ᵗʰ August, 2024 raising the following grounds:
a) That the learned trial magistrate erred in law and in fact by granting maintenance orders in respect of B.K.M. without first establishing paternity, notwithstanding the Appellant’s contention that the child is not his biological child;
b) That the learned trial magistrate erred in law and in fact and violated section 101(4) of the Children’s Act by allowing maintenance orders to subsist without considering the Appellant’s alleged financial obligations towards a second family and his stated net monthly income of Kshs.40,000/=;
c) That the learned trial magistrate erred in law and in fact by failing to consider that the Appellant had made payments towards maintenance, including Kshs.70,000/= paid on 24 ᵗʰ November, 2023 and Kshs.200,000/= paid on 12 ᵗʰ June, 2024.
d) That the learned trial magistrate erred in law and in fact by failing to find that the mutual parental responsibility agreement relied upon by the parties related only to Bill Kulundu and Brianna Wanyama, who had attained the age of majority, and whose parental responsibility had not been extended pursuant to section 28 of the Children’s Act;
e) That the learned trial magistrate erred in law and in fact by issuing and sustaining enforcement proceedings against the Appellant without considering the Respondent’s financial capacity;
f) That the learned trial magistrate erred in law and in fact by granting parental responsibility in respect of B.K.M. despite the Appellant’s challenge to paternity, thereby violating his rights under Articles 28 and 47 of the Constitution;
g) That the learned trial magistrate erred in declining to order the determination of paternity before maintenance obligations could be enforced against the Appellant.
2. The record shows that the dispute between the parties was referred to Court Annexed Mediation and culminated in a mediation settlement agreement dated 26 ᵗʰ May, 2023. The settlement was subsequently adopted as an order of the Court on 11 ᵗʰ July, 2023.
3. Under the settlement, the parties agreed that they had three children and would take care of the three children at all times. The settlement further provided that with effect from June, 2023 the Appellant would pay maintenance of Kshs.20,000/= per month, which would increase to Kshs.45,000/= per month from November, 2023, in addition to meeting school fees obligations.
4. Subsequently, disputes arose regarding compliance with the terms of the settlement and the accumulation of arrears. The record shows that the Appellant made payments of Kshs.70,000/= on 24 ᵗʰ November, 2023 and Kshs.200,000/= on 12 ᵗʰ June, 2024. Reconciliations of the outstanding sums were thereafter undertaken before the Children’s Court.
5. By a Preliminary Objection dated 15 ᵗʰ June, 2024, the Appellant challenged the subsisting orders on the grounds that B.K.M . was not his biological child, that the Court ought to have established paternity before enforcing maintenance obligations, that the parental responsibility arrangements related only to Bill Kulundu and Brianna Wanyama, and that the Court had failed to consider his financial circumstances and other family obligations.
6. In the Ruling delivered on 16 ᵗʰ August, 2024, the learned trial magistrate dismissed the Preliminary Objection, held that the parties had entered into a consent acknowledging three children and undertaking responsibility for them, directed the Appellant to continue meeting his obligations under the subsisting orders, granted him thirty days within which to clear the outstanding arrears, and directed that warrants would issue in default.
Submissions:
7. The Appellant filed written submissions dated 11 ᵗʰ February, 2026.
8. The Appellant submitted that the learned trial magistrate erred in law and fact by upholding maintenance orders in respect of B.K.M . without first determining paternity. It was submitted that B.K.M. is not the biological child of the Appellant and that the Court ought to have ordered a DNA test before enforcing any parental obligations against him. Reliance was placed on FKW (suing as the mother and next friend of GDW (Minor) v DMM [2015] eKLR and ER v MW (Appeal E010 of 2022) [2025] KEHC 647 (KLR) for the proposition that where paternity is genuinely disputed and a prima facie case has been established, the court should ordinarily direct DNA testing in the best interests of the child.
9. The Appellant further submitted that the learned trial magistrate failed to appreciate that the mutual parental responsibility agreement executed on 8 ᵗʰ September, 2017 related only to Bill Kulundu and Brianna Wanyama. It was argued that both children had attained the age of majority and that no application had been made under Section 28 of the Children Act for extension of parental responsibility.
10. Counsel relied on Section 28 and Section 91 of the Children Act and the decisions in CM v SWA [2019] eKLR and Allan Njau Waiyaki v Eddie Waiyaki Hinga [2019] eKLR and submitted that parental responsibility could not continue beyond the age of eighteen years in the absence of a lawful extension.
11. The Appellant also submitted that the learned trial magistrate failed to take into account his financial position and existing obligations. Counsel argued that the Appellant earns a net monthly salary of Kshs.40,000/= and has responsibilities towards another family. It was contended that the maintenance orders were punitive and failed to consider the factors prescribed under Section 114 of the Children Act , including the financial resources, obligations and earning capacities of the parties. Reliance was placed on MNM v SNK (Civil Appeal E008 of 2022) [2023] KEHC 3915 (KLR), AWM v JWW [2022] eKLR and S.K.W. v M.W.I [2015] eKLR in support of the proposition that maintenance orders should be proportionate to a parent’s means and should not operate oppressively.
12. According to the Appellant, the trial magistrate failed to consider payments allegedly made by the Appellant towards maintenance, including Kshs.70,000/= paid on 24 ᵗʰ November, 2023 and Kshs.200,000/= paid on 12 ᵗʰ June, 2024. It was argued that these payments demonstrated compliance with his parental obligations and ought to have been taken into account before enforcement measures were undertaken.
13. The Appellant also faulted the learned trial magistrate for issuing and sustaining enforcement proceedings without considering the Respondent’s financial position. Counsel submitted that the Respondent is employed as a senior bank manager and that parental responsibility is shared between both parents under Article 53(1)(e) of the Constitution and the Children Act.
14. Finally, the Appellant submitted that the learned trial magistrate erred in dismissing the Preliminary Objection and in directing the Appellant to continue meeting obligations arising from the existing orders without first addressing the issue of paternity. The Court was urged to set aside the Ruling and Orders delivered on 16 ᵗʰ August, 2024, and direct that paternity be determined before any maintenance orders are issued in respect of B.K.M.
15. The Respondent filed submissions dated 26 th February, 2026.
16. The Respondent submitted that the Appellant was raising issues that were not canvassed before the trial court. They argued that, whereas the decision appealed against was on a preliminary objection, the Appellant was attempting to relitigate the matter afresh, even though a decree was already in place.
17. They also argued that the Appellant was using the appeal process to delay execution in the children’s case. They cited Muchanga Investments Limited vs Safaris Kenya Limited & 2 others (2009) eKLR and GMN vs BWN (2016) eKLR, urging the Court to hold that a party should not exploit court procedures, technicalities, or delays to hinder the enforcement of court decrees.
18. The Respondent argued that the re-litigation is not in the best interest of the children. They urged the Court to find that the Appellant had come to court with unclean hands as he had failed to meet his obligation towards the children.
19. The Respondent asked the Court to dismiss the appeal with costs.
Issues:
20. Having considered the record, the issues for determination are summed up as follows:
a) Whether the learned trial magistrate erred in dismissing the Preliminary Objection dated 15 ᵗʰ June, 2024;
b) Whether the learned trial magistrate erred in declining to interfere with the consent and decree adopted on 11 ᵗʰ July, 2023;
c) Who should bear costs.
Analysis & Determination:
Whether the learned trial magistrate erred in dismissing the Preliminary Objection dated 15 ᵗʰ June, 2024
21. As this is a first appeal, this Court is obligated to reconsider the material that was before the trial Court, evaluate it afresh and draw its own independent conclusions. In Francis Lokadongoy Lokogy v Reuben Kiplagat Kiptarus [2020] eKLR , the Court held:
“As this is a first appeal, this court is under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching its own conclusions in the matter…”
22. The impugned ruling arose from the Appellant’s Preliminary Objection dated 15 ᵗʰ June, 2024. In that objection, the Appellant contended that B.K.M. was not his biological child, that the Court ought to have established paternity before issuing or enforcing maintenance orders, that the orders violated Section 101(4) of the Children Act and that the Court had failed to take into account his responsibilities towards a second family.
23. Before considering the merits of those complaints, it is necessary to determine whether the matters raised by the Appellant are capable of determination through a Preliminary Objection.
24. The law on Preliminary Objections is now well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , Law JA stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
25. In the same decision, Sir Charles Newbold P. stated:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
26. The Court of Appeal reiterated the foregoing principles in Attorney General & Another v Andrew Mwaura Githinji & Another [2016] eKLR where it observed that a Preliminary Objection raises a pure point of law and cannot be sustained where facts remain contested or where the Court is invited to exercise judicial discretion.
27. I have considered the grounds advanced in the Preliminary Objection against those principles. The Appellant asserted that B.K.M. was not his biological child. He further contended that the Court ought to have established paternity before maintenance obligations could be enforced against him. He also asserted that the Court failed to consider his obligations towards a second family and his financial circumstances.
28. In my view, none of those matters constituted a pure point of law. Whether B.K.M. is the Appellant’s biological child is plainly a question of fact. Whether a DNA test ought to be undertaken, whether a sufficient basis exists for such an order, and what consequences would flow therefrom are equally matters that require consideration of the evidence. They were not issues capable of determination through a preliminary objection.
29. Similarly, the Appellant’s contention that he has a parallel family and that the Court failed to take into account his financial obligations thereto could only be determined upon consideration of evidence. The same applies to his assertion that he had made payments towards maintenance and had substantially complied with his obligations. Such matters require proof and cannot properly be determined on the assumption that all pleaded facts are correct.
30. I therefore agree with the learned trial magistrate that the matters raised by the Appellant did not constitute pure points of law capable of disposing of the proceedings. To that extent alone, the Preliminary Objection was properly dismissed.
Whether the learned trial magistrate erred in declining to interfere with the consent and decree adopted on 11 ᵗʰ July, 2023
31. The record shows that the dispute was referred to Court Annexed Mediation and culminated in a settlement agreement dated 26 ᵗʰ May, 2023. The settlement was subsequently adopted as an order of the Court on 11 ᵗʰ July, 2023. The decree extracted therefrom provided, inter alia, as follows:
“THAT parties have agreed they have three children and will be taking care of the three all the time.”
“THAT the Home/House in Kakamega. Agreed that the land in Kakamega is for the first family i.e RUTH SYOKAU TITUS and her three children.”
“THAT the father of the children EDGAR WANYAMA KULUNDU and RUTH SYOKAU TITUS have agree he will be allowed to meet the children and take them out any time. School holidays he will be free to take them out.”
“THAT from June EDGAR WANYAMA KULUNDU will be sending a support of Kshs.20,000/= per month but with effect from November he will be paying Kshs. 45,000/=. He will also be paying the school fees.”
32. It is therefore evident that by the time the Preliminary Objection dated 15 ᵗʰ June, 2024 came before the learned trial magistrate, there existed a subsisting settlement agreement and decree regulating the rights and obligations of the parties.
33. A substantial portion of the Appellant’s case before both the trial court and this Court, as discerned from his prolix applications, concerns B.K.M., whom he contends is not his biological child. The Appellant argues that the learned trial magistrate ought to have directed DNA testing before maintenance obligations could be enforced against him.
34. I have considered that argument. The issue before the learned trial magistrate arose in the context of a Preliminary Objection. Whether B.K.M. is or is not the Appellant’s biological child is plainly a disputed question of fact. The determination of that issue would necessarily require evidence and could not properly be resolved through a Preliminary Objection.
35. I further note that although the Appellant’s submissions also place considerable emphasis on B.K.M., the material appearing on the record does not demonstrate that the arrears sought to be enforced arose from any specific expenditure attributable to that child. The reconciliations placed before the Children’s Court principally related to the monthly maintenance agreed under the consent and school fees obligations concerning BK and BW. While the settlement referred to three children, the record before this Court does not disclose any distinct financial claim made in respect of B.K.M. capable of disposing of the enforcement proceedings by way of the Preliminary Objection.
36. More fundamentally, the record shows that the parties voluntarily entered into the settlement agreement dated 26 ᵗʰ May, 2023 and thereafter caused the same to be adopted as an order of the Court on 11 ᵗʰ July, 2023. The settlement expressly stated that the parties had three children and would take care of them at all times. The Appellant was a signatory to that settlement. The Appellant did not place before the trial Court any application seeking to review, vary or set aside that settlement or the decree arising therefrom.
37. The learned trial magistrate was therefore confronted with a subsisting consent order of the Court. In those circumstances, the question before her was not whether the issue of paternity could be revisited through a Preliminary Objection, but whether there existed any legal basis upon which the Court could disregard or decline to enforce a consent which remained valid and binding upon the parties.
38. The law regarding consent judgments is settled. In Flora N. Wasike v Destimo Wamboko [1988] eKLR , the Court of Appeal stated:
“It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”
39. The Court further approved the decision in Hirani v Kassam (1952) 19 EACA 131 where it was held:
“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.”
40. Similarly, in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 , the Court held:
“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”
41. Applying those principles to the present appeal, I note that the Appellant has not alleged that the mediation settlement dated 26 ᵗʰ May, 2023 was procured through fraud, collusion, coercion, mistake, misrepresentation, concealment of material facts or any other circumstance that would justify the setting aside of a contract. Neither has he asserted that he did not participate in the mediation process, that he did not execute the settlement, or that the terms adopted by the Court on 11 ᵗʰ July, 2023 differed from those agreed by the parties.
42. Instead, the Appellant’s complaint appears to be that the obligations assumed under the settlement have become burdensome, that he disputes the paternity of one of the children referred to therein, and that the children referred to in the settlement have attained, or have since attained, the age of majority.
43. I therefore agree with the learned trial magistrate that the consent adopted on 11 ᵗʰ July, 2023 remained valid, binding and enforceable unless and until set aside, varied or reviewed by a Court of competent jurisdiction. The learned trial magistrate cannot be faulted for declining to disregard obligations arising from a decree that remained in force.
44. The Appellant also submitted that the parental responsibility agreement dated 8 ᵗʰ September, 2017 referred only to BK and BW and that both had attained the age of majority. He further argued that no application had been made for extension of parental responsibility under Section 35 of the Children Act, 2022.
45. Section 35 of the Children Act, 2022 provides a mechanism through which parental responsibility may be extended beyond the age of eighteen years where special circumstances exist. In my view, the learned trial magistrate correctly answered that question in the negative. The ruling appealed from did not purport to extend parental responsibility under Section 35 of the Children Act. It merely upheld and enforced the consent order that had not been challenged through the procedures recognised by law.
46. It is also noteworthy that the settlement agreement adopted on 11 ᵗʰ July, 2023 arose from a mediation settlement dated 26 ᵗʰ May, 2023. By that date, the ages of the children concerned were matters well within the knowledge of the parties. Indeed, the parental responsibility agreement dated 8 ᵗʰ September, 2017 indicates that BK was then aged 15 years while BW was aged 11 years. Consequently, by the time the parties entered into the mediation settlement on 26 ᵗʰ May, 2023, BK was already approximately 21 years of age. The Appellant nevertheless voluntarily entered into the settlement and assumed the obligations contained therein.
47. The issue before the learned trial magistrate was therefore not whether parental responsibility ought to be extended under Section 35 of the Children Act, but whether obligations arising from a subsisting consent order could be avoided through a Preliminary Objection.
48. For those reasons, I find no error in the learned trial magistrate’s decision to dismiss the Preliminary Objection dated 15 ᵗʰ June, 2024 and to decline to interfere with the consent and decree adopted on 11 ᵗʰ July, 2023.
Disposition :
49. In the end, I find no merit in the appeal and make the following orders:
a) The appeal is dismissed
b) The Ruling and Orders of Hon. Jackie Kibosia (PM) delivered on 16 ᵗʰ August, 2024 in Nairobi Children's Case No. 984 of 2018 are hereby upheld
c) Each party shall bear own costs of the appeal
50. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI on this 8 TH day of JUNE, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Mr. Wakasa Were holding brief for Mr. Wachakana Advocate for the Appellant
Ms. Nelima Walubengo Advocate for the Respondent
2 | Page HCFA E105 OF 2024 JUDGMENT
VERSUS
RUTH SYOKAU TITUS ...................................................... RESPONDENT
(Being an Appeal from the Ruling and Orders of Hon. Jackie Kibosia (PM) delivered on 16 ᵗʰ August, 2024 in Nairobi Children’s Case No. 984 of 2018)
1. The Appellant, being dissatisfied with the Ruling and Orders of Hon. Jackie Kibosia (PM) delivered on 16 ᵗʰ August, 2024 in Nairobi Children’s Case No. 984 of 2018 , filed the Memorandum of Appeal dated 30 ᵗʰ August, 2024 raising the following grounds:
a) That the learned trial magistrate erred in law and in fact by granting maintenance orders in respect of B.K.M. without first establishing paternity, notwithstanding the Appellant’s contention that the child is not his biological child;
b) That the learned trial magistrate erred in law and in fact and violated section 101(4) of the Children’s Act by allowing maintenance orders to subsist without considering the Appellant’s alleged financial obligations towards a second family and his stated net monthly income of Kshs.40,000/=;
c) That the learned trial magistrate erred in law and in fact by failing to consider that the Appellant had made payments towards maintenance, including Kshs.70,000/= paid on 24 ᵗʰ November, 2023 and Kshs.200,000/= paid on 12 ᵗʰ June, 2024.
d) That the learned trial magistrate erred in law and in fact by failing to find that the mutual parental responsibility agreement relied upon by the parties related only to Bill Kulundu and Brianna Wanyama, who had attained the age of majority, and whose parental responsibility had not been extended pursuant to section 28 of the Children’s Act;
e) That the learned trial magistrate erred in law and in fact by issuing and sustaining enforcement proceedings against the Appellant without considering the Respondent’s financial capacity;
f) That the learned trial magistrate erred in law and in fact by granting parental responsibility in respect of B.K.M. despite the Appellant’s challenge to paternity, thereby violating his rights under Articles 28 and 47 of the Constitution;
g) That the learned trial magistrate erred in declining to order the determination of paternity before maintenance obligations could be enforced against the Appellant.
2. The record shows that the dispute between the parties was referred to Court Annexed Mediation and culminated in a mediation settlement agreement dated 26 ᵗʰ May, 2023. The settlement was subsequently adopted as an order of the Court on 11 ᵗʰ July, 2023.
3. Under the settlement, the parties agreed that they had three children and would take care of the three children at all times. The settlement further provided that with effect from June, 2023 the Appellant would pay maintenance of Kshs.20,000/= per month, which would increase to Kshs.45,000/= per month from November, 2023, in addition to meeting school fees obligations.
4. Subsequently, disputes arose regarding compliance with the terms of the settlement and the accumulation of arrears. The record shows that the Appellant made payments of Kshs.70,000/= on 24 ᵗʰ November, 2023 and Kshs.200,000/= on 12 ᵗʰ June, 2024. Reconciliations of the outstanding sums were thereafter undertaken before the Children’s Court.
5. By a Preliminary Objection dated 15 ᵗʰ June, 2024, the Appellant challenged the subsisting orders on the grounds that B.K.M . was not his biological child, that the Court ought to have established paternity before enforcing maintenance obligations, that the parental responsibility arrangements related only to Bill Kulundu and Brianna Wanyama, and that the Court had failed to consider his financial circumstances and other family obligations.
6. In the Ruling delivered on 16 ᵗʰ August, 2024, the learned trial magistrate dismissed the Preliminary Objection, held that the parties had entered into a consent acknowledging three children and undertaking responsibility for them, directed the Appellant to continue meeting his obligations under the subsisting orders, granted him thirty days within which to clear the outstanding arrears, and directed that warrants would issue in default.
Submissions:
7. The Appellant filed written submissions dated 11 ᵗʰ February, 2026.
8. The Appellant submitted that the learned trial magistrate erred in law and fact by upholding maintenance orders in respect of B.K.M . without first determining paternity. It was submitted that B.K.M. is not the biological child of the Appellant and that the Court ought to have ordered a DNA test before enforcing any parental obligations against him. Reliance was placed on FKW (suing as the mother and next friend of GDW (Minor) v DMM [2015] eKLR and ER v MW (Appeal E010 of 2022) [2025] KEHC 647 (KLR) for the proposition that where paternity is genuinely disputed and a prima facie case has been established, the court should ordinarily direct DNA testing in the best interests of the child.
9. The Appellant further submitted that the learned trial magistrate failed to appreciate that the mutual parental responsibility agreement executed on 8 ᵗʰ September, 2017 related only to Bill Kulundu and Brianna Wanyama. It was argued that both children had attained the age of majority and that no application had been made under Section 28 of the Children Act for extension of parental responsibility.
10. Counsel relied on Section 28 and Section 91 of the Children Act and the decisions in CM v SWA [2019] eKLR and Allan Njau Waiyaki v Eddie Waiyaki Hinga [2019] eKLR and submitted that parental responsibility could not continue beyond the age of eighteen years in the absence of a lawful extension.
11. The Appellant also submitted that the learned trial magistrate failed to take into account his financial position and existing obligations. Counsel argued that the Appellant earns a net monthly salary of Kshs.40,000/= and has responsibilities towards another family. It was contended that the maintenance orders were punitive and failed to consider the factors prescribed under Section 114 of the Children Act , including the financial resources, obligations and earning capacities of the parties. Reliance was placed on MNM v SNK (Civil Appeal E008 of 2022) [2023] KEHC 3915 (KLR), AWM v JWW [2022] eKLR and S.K.W. v M.W.I [2015] eKLR in support of the proposition that maintenance orders should be proportionate to a parent’s means and should not operate oppressively.
12. According to the Appellant, the trial magistrate failed to consider payments allegedly made by the Appellant towards maintenance, including Kshs.70,000/= paid on 24 ᵗʰ November, 2023 and Kshs.200,000/= paid on 12 ᵗʰ June, 2024. It was argued that these payments demonstrated compliance with his parental obligations and ought to have been taken into account before enforcement measures were undertaken.
13. The Appellant also faulted the learned trial magistrate for issuing and sustaining enforcement proceedings without considering the Respondent’s financial position. Counsel submitted that the Respondent is employed as a senior bank manager and that parental responsibility is shared between both parents under Article 53(1)(e) of the Constitution and the Children Act.
14. Finally, the Appellant submitted that the learned trial magistrate erred in dismissing the Preliminary Objection and in directing the Appellant to continue meeting obligations arising from the existing orders without first addressing the issue of paternity. The Court was urged to set aside the Ruling and Orders delivered on 16 ᵗʰ August, 2024, and direct that paternity be determined before any maintenance orders are issued in respect of B.K.M.
15. The Respondent filed submissions dated 26 th February, 2026.
16. The Respondent submitted that the Appellant was raising issues that were not canvassed before the trial court. They argued that, whereas the decision appealed against was on a preliminary objection, the Appellant was attempting to relitigate the matter afresh, even though a decree was already in place.
17. They also argued that the Appellant was using the appeal process to delay execution in the children’s case. They cited Muchanga Investments Limited vs Safaris Kenya Limited & 2 others (2009) eKLR and GMN vs BWN (2016) eKLR, urging the Court to hold that a party should not exploit court procedures, technicalities, or delays to hinder the enforcement of court decrees.
18. The Respondent argued that the re-litigation is not in the best interest of the children. They urged the Court to find that the Appellant had come to court with unclean hands as he had failed to meet his obligation towards the children.
19. The Respondent asked the Court to dismiss the appeal with costs.
Issues:
20. Having considered the record, the issues for determination are summed up as follows:
a) Whether the learned trial magistrate erred in dismissing the Preliminary Objection dated 15 ᵗʰ June, 2024;
b) Whether the learned trial magistrate erred in declining to interfere with the consent and decree adopted on 11 ᵗʰ July, 2023;
c) Who should bear costs.
Analysis & Determination:
Whether the learned trial magistrate erred in dismissing the Preliminary Objection dated 15 ᵗʰ June, 2024
21. As this is a first appeal, this Court is obligated to reconsider the material that was before the trial Court, evaluate it afresh and draw its own independent conclusions. In Francis Lokadongoy Lokogy v Reuben Kiplagat Kiptarus [2020] eKLR , the Court held:
“As this is a first appeal, this court is under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching its own conclusions in the matter…”
22. The impugned ruling arose from the Appellant’s Preliminary Objection dated 15 ᵗʰ June, 2024. In that objection, the Appellant contended that B.K.M. was not his biological child, that the Court ought to have established paternity before issuing or enforcing maintenance orders, that the orders violated Section 101(4) of the Children Act and that the Court had failed to take into account his responsibilities towards a second family.
23. Before considering the merits of those complaints, it is necessary to determine whether the matters raised by the Appellant are capable of determination through a Preliminary Objection.
24. The law on Preliminary Objections is now well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , Law JA stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
25. In the same decision, Sir Charles Newbold P. stated:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
26. The Court of Appeal reiterated the foregoing principles in Attorney General & Another v Andrew Mwaura Githinji & Another [2016] eKLR where it observed that a Preliminary Objection raises a pure point of law and cannot be sustained where facts remain contested or where the Court is invited to exercise judicial discretion.
27. I have considered the grounds advanced in the Preliminary Objection against those principles. The Appellant asserted that B.K.M. was not his biological child. He further contended that the Court ought to have established paternity before maintenance obligations could be enforced against him. He also asserted that the Court failed to consider his obligations towards a second family and his financial circumstances.
28. In my view, none of those matters constituted a pure point of law. Whether B.K.M. is the Appellant’s biological child is plainly a question of fact. Whether a DNA test ought to be undertaken, whether a sufficient basis exists for such an order, and what consequences would flow therefrom are equally matters that require consideration of the evidence. They were not issues capable of determination through a preliminary objection.
29. Similarly, the Appellant’s contention that he has a parallel family and that the Court failed to take into account his financial obligations thereto could only be determined upon consideration of evidence. The same applies to his assertion that he had made payments towards maintenance and had substantially complied with his obligations. Such matters require proof and cannot properly be determined on the assumption that all pleaded facts are correct.
30. I therefore agree with the learned trial magistrate that the matters raised by the Appellant did not constitute pure points of law capable of disposing of the proceedings. To that extent alone, the Preliminary Objection was properly dismissed.
Whether the learned trial magistrate erred in declining to interfere with the consent and decree adopted on 11 ᵗʰ July, 2023
31. The record shows that the dispute was referred to Court Annexed Mediation and culminated in a settlement agreement dated 26 ᵗʰ May, 2023. The settlement was subsequently adopted as an order of the Court on 11 ᵗʰ July, 2023. The decree extracted therefrom provided, inter alia, as follows:
“THAT parties have agreed they have three children and will be taking care of the three all the time.”
“THAT the Home/House in Kakamega. Agreed that the land in Kakamega is for the first family i.e RUTH SYOKAU TITUS and her three children.”
“THAT the father of the children EDGAR WANYAMA KULUNDU and RUTH SYOKAU TITUS have agree he will be allowed to meet the children and take them out any time. School holidays he will be free to take them out.”
“THAT from June EDGAR WANYAMA KULUNDU will be sending a support of Kshs.20,000/= per month but with effect from November he will be paying Kshs. 45,000/=. He will also be paying the school fees.”
32. It is therefore evident that by the time the Preliminary Objection dated 15 ᵗʰ June, 2024 came before the learned trial magistrate, there existed a subsisting settlement agreement and decree regulating the rights and obligations of the parties.
33. A substantial portion of the Appellant’s case before both the trial court and this Court, as discerned from his prolix applications, concerns B.K.M., whom he contends is not his biological child. The Appellant argues that the learned trial magistrate ought to have directed DNA testing before maintenance obligations could be enforced against him.
34. I have considered that argument. The issue before the learned trial magistrate arose in the context of a Preliminary Objection. Whether B.K.M. is or is not the Appellant’s biological child is plainly a disputed question of fact. The determination of that issue would necessarily require evidence and could not properly be resolved through a Preliminary Objection.
35. I further note that although the Appellant’s submissions also place considerable emphasis on B.K.M., the material appearing on the record does not demonstrate that the arrears sought to be enforced arose from any specific expenditure attributable to that child. The reconciliations placed before the Children’s Court principally related to the monthly maintenance agreed under the consent and school fees obligations concerning BK and BW. While the settlement referred to three children, the record before this Court does not disclose any distinct financial claim made in respect of B.K.M. capable of disposing of the enforcement proceedings by way of the Preliminary Objection.
36. More fundamentally, the record shows that the parties voluntarily entered into the settlement agreement dated 26 ᵗʰ May, 2023 and thereafter caused the same to be adopted as an order of the Court on 11 ᵗʰ July, 2023. The settlement expressly stated that the parties had three children and would take care of them at all times. The Appellant was a signatory to that settlement. The Appellant did not place before the trial Court any application seeking to review, vary or set aside that settlement or the decree arising therefrom.
37. The learned trial magistrate was therefore confronted with a subsisting consent order of the Court. In those circumstances, the question before her was not whether the issue of paternity could be revisited through a Preliminary Objection, but whether there existed any legal basis upon which the Court could disregard or decline to enforce a consent which remained valid and binding upon the parties.
38. The law regarding consent judgments is settled. In Flora N. Wasike v Destimo Wamboko [1988] eKLR , the Court of Appeal stated:
“It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”
39. The Court further approved the decision in Hirani v Kassam (1952) 19 EACA 131 where it was held:
“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.”
40. Similarly, in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 , the Court held:
“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”
41. Applying those principles to the present appeal, I note that the Appellant has not alleged that the mediation settlement dated 26 ᵗʰ May, 2023 was procured through fraud, collusion, coercion, mistake, misrepresentation, concealment of material facts or any other circumstance that would justify the setting aside of a contract. Neither has he asserted that he did not participate in the mediation process, that he did not execute the settlement, or that the terms adopted by the Court on 11 ᵗʰ July, 2023 differed from those agreed by the parties.
42. Instead, the Appellant’s complaint appears to be that the obligations assumed under the settlement have become burdensome, that he disputes the paternity of one of the children referred to therein, and that the children referred to in the settlement have attained, or have since attained, the age of majority.
43. I therefore agree with the learned trial magistrate that the consent adopted on 11 ᵗʰ July, 2023 remained valid, binding and enforceable unless and until set aside, varied or reviewed by a Court of competent jurisdiction. The learned trial magistrate cannot be faulted for declining to disregard obligations arising from a decree that remained in force.
44. The Appellant also submitted that the parental responsibility agreement dated 8 ᵗʰ September, 2017 referred only to BK and BW and that both had attained the age of majority. He further argued that no application had been made for extension of parental responsibility under Section 35 of the Children Act, 2022.
45. Section 35 of the Children Act, 2022 provides a mechanism through which parental responsibility may be extended beyond the age of eighteen years where special circumstances exist. In my view, the learned trial magistrate correctly answered that question in the negative. The ruling appealed from did not purport to extend parental responsibility under Section 35 of the Children Act. It merely upheld and enforced the consent order that had not been challenged through the procedures recognised by law.
46. It is also noteworthy that the settlement agreement adopted on 11 ᵗʰ July, 2023 arose from a mediation settlement dated 26 ᵗʰ May, 2023. By that date, the ages of the children concerned were matters well within the knowledge of the parties. Indeed, the parental responsibility agreement dated 8 ᵗʰ September, 2017 indicates that BK was then aged 15 years while BW was aged 11 years. Consequently, by the time the parties entered into the mediation settlement on 26 ᵗʰ May, 2023, BK was already approximately 21 years of age. The Appellant nevertheless voluntarily entered into the settlement and assumed the obligations contained therein.
47. The issue before the learned trial magistrate was therefore not whether parental responsibility ought to be extended under Section 35 of the Children Act, but whether obligations arising from a subsisting consent order could be avoided through a Preliminary Objection.
48. For those reasons, I find no error in the learned trial magistrate’s decision to dismiss the Preliminary Objection dated 15 ᵗʰ June, 2024 and to decline to interfere with the consent and decree adopted on 11 ᵗʰ July, 2023.
Disposition :
49. In the end, I find no merit in the appeal and make the following orders:
a) The appeal is dismissed
b) The Ruling and Orders of Hon. Jackie Kibosia (PM) delivered on 16 ᵗʰ August, 2024 in Nairobi Children's Case No. 984 of 2018 are hereby upheld
c) Each party shall bear own costs of the appeal
50. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI on this 8 TH day of JUNE, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Mr. Wakasa Were holding brief for Mr. Wachakana Advocate for the Appellant
Ms. Nelima Walubengo Advocate for the Respondent
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