1. Before this court for determination are the Consolidated appeals. The first appeal was filed by the 2nd Appeallant herein, Esther Njambi Muraguri Mwangi (the 2nd Defendant in the lower Court) while the second appeal was filed by the 1st Appellant herein, RNW(the 1st Defendant in the lower court). Both appeals arise out of a ruling delivered on 1st September 2023 by Hon C.C.Oluoch, Chief Magistrate in Nairobi Children’s Case No. 787 of 2015.
BACKGROUND
2. The Respondent and the 1st Appellant are the biological parents of the minor, W.W. The 2nd Appellant is the paternal aunt of the minor and the owner of property known as Maisonette No. 209/5457 (Orig No. 209/408/6). The 1st Respondent filed a claim against the 1st Appellant and the 2nd Appellant in the Trial court for the following orders;
a) Custody of the minor.
b) Maintenance.
c) An order that the minor and the mother be returned to their home, Maisonette No. 209/5457 together with their household items by breaking into the premises in the presence of and with the assistance of the Officer in charge Kilimani Police Station.
d) The 1st and 2nd Defendants be restrained from interfering with their quiet possession of the home.
3. On 7th February 2023, Hon. C.C.Oluoch delivered a judgment on the following terms;
a) That both parties shall have joint legal custody of the minor.
b) That the Plaintiff shall have actual custody, care and control of the minor.
c) That the 1st Defendant shall be at liberty to arrange for access.
d) That the 1st Defendant shall pay for school fees and cater for all school related expenses for the minor at the current school or any other mutually agreed on in the future.
e) That the 1st Defendant shall clear all school fees arrears for the minor, if any. Should he fail to do so within fourteen days of service of the decree herein, the court shall give appropriate directions on the pending application dated 21st September 2022.
f) That the 1st Defendant shall provide shelter for the minor at the current place of residence, Ngong Road, Maisonette No. 209/5457 (Orig No. 209/408/6) or at an alternative place of equal standards.
g) That the defendants , by themselves, their servants, agents or otherwise, are restrained from interfering with the minor’s peaceful occupation of the home, Ngong Road Maisonette No. 109/5457.
h) The plaintiff shall cater for all the other needs of the minor.
i) Each party shall bear its own costs.
4. The Appellants then filed seperate applications to set aside the judgment of the court. The court was informed that the Appellant was in arrears of Kshs. 345,000 and the minor was no longer attending school. The Appellant made partial payment of Kshs. 100,000 to enable the minor to sit for exams. A Notice to Show Cause was taken out by the Respondent against the Appellant. The Appellant proposed a change of schools since he was struggling financially. On 15th June 2023, the parties recorded a consent in the following terms;
1. The child to continue with her education at Nairobi International School where she currently is.
2. Going forward, both parents shall meet half of the school fees payable per term for the minor.
3. The mother shall take care of transportation.
4. The father shall endeavour to clear school fees arrears within (10) months.
5. Both parents shall engage the school on the terms of the consent.
5. On 3rd July 2023, the Appellant filed an application for stay of execution of the decree issued on 15th December 2023 and that the consent order issued on 15th June 2023 be reviewed, varied and/or set aside. His case was that the court recorded a consent without the involvement of his two sisters who were not present in court at the request of the Respondent. He stated that he hoped his sisters would help him clear the arrears but when he informed them of the consent, they did not agree to it. He stated that Nairobi International school was not within his means. That his sisters will only support him if the minor is taken to a cheaper school. He proposed that the consent be revised as follows;
a) The minor be transferred to Loreto Convent Msongari.
b) Both parents meet the school fees and school related expenses equally.
c) Both parents clear the arrears equally.
d) Both parents to engage Nairobi International School on payment of arrears.
e) The defendant to contribute equally towards maintenance and upkeep within their means.
f) The Pliantiff be granted actual custody of the minor while the Defendant be granted access on holidays and alternate weekends.
g) The defendant to vacate the 2nd defendant’s property.
6. The Respondent equally filed a Notice of Motion for leave to take out a Notice to Show Cause for arrears of Kshs. 506,000 accrued from January 2023.
7. The 2nd Appellant also filed an application dated 20th July 2023 for stay of execution of the decree issued on 15/02/2023 to the extent that it touches on Maisonette No. 209/5457 (orig No. 209/408/6) and that her name be struck out from the suit herein.
8. The trial court determined all the three applications together and delivered a ruling on 1st September 2023. The court dismissed the 1st Appellant’s application dated 3rd July 2023 and the 2nd Appellant’s application dated 20th July 2023. The 1st Appellant was ordered to settle the amount due in the Notice to Show Cause in four equal monthly instalments of Kshs. 126,500 by the last day of every month with effect from September 2023. In default of any one instalment, a warrant of arrest shall issue against him without further notice.
9. The Appellants were aggrieved by the orders of 1st September 2023. Each preferred an appeal to this court.
1ST APPELLANT’S MEMORANDUM OF APPEAL
10. The Appellant’s Memorandum of Appeal is undated although it has been referred as “an amended memorandum of appeal”.He listed ten (10) grounds of appeal as follows: -
1. THAT the Learned Magistrate erred in law and in fact by failing to consider and uphold the best interest of the minor as paramount and of utmost consideration in the matter.
2. THAT the learned trial magistrate erred in law and in fact by failing to determine that the ex-parte judgment dated 15/02/2023 was irregular and ought to have been set aside ex debito justicae for want of service.
3. THAT the learned trial magistrate erred in law and in fact by deeming the Appellant’s application dated 21/02/2023 as abandoned despite the Appellant making extensive submissions on the same.
4. THAT the learned trial magistrate erred in law and in fact be failing to apply the provisions of Section 119 and 120 of the Children’s Act as a foundation for variation of a consent order which variation ought to be premised on the best interests of a child.
5. THAT the learned trial magistrate erred in law and in fact by failing to appreciate that the evidence on record was sufficient to establish a mistake as to material facts, undue influence and duress.
6. THAT the learned trial magistrate erred in law and in fact by failing to apply the principles set out by the Supreme Court in MAK V RMAA & 4 Others [2023]KESC21(KLR) when balancing the child’s best interest and parental rights and responsibility.
7. THAT the learned trial magistrate erred in law and in fact by failing to consider that without the support of his siblings, the Appellant lacked the financial capacity to comply with the consent order.
8. THAT the Learned Magistrate erred in law and in fact by failing to appreciate that the simultaneous prosecution of an application for setting aside the judgment and an application for execution led to the miscarriage of justice as the right to be heard was sacrificed in favour of execution.
9. THAT the Learned Magistrate erred in law and in fact by failing to appreciate that the entire proceedings bore the hall marks of misrepresentation, intimidation and false imprisonment as a coercive tool to achieve unaffordable lifestyle and wishes of the Respondent.
10. THAT the Learned Magistrate erred in law and fact by failing to address the issue of the minor’s rights to live and be cared for by both parents.
11. The appellant prayed that the judgment of the trial court dated 7/02/2023 and the consent order recorded on 15/06/2023 be set aside; the matter be heard de novo on its merits before any other magistrate other than Hon. Charity Oluoch. And that pending the determination of the primary suit, the minor be placed in a school within the means of the parents.
THE 2ND APPELLANT’S MEMORANDUM OF APPEAL DATED 21ST SEPTEMBER 2023.
12. The 2nd Respondent listed fourteen (14) grounds of appeal as follows;
1. The Honourable Court erred in law and fact in failing to deliberate itself on the proprietary ownership of Maisonette No. 209/5457 (Original No. 209/408/6) in respect to the issues before the court, which neither belong to the Plaintiff nor the 1st Defendant.
2. The Honourable Court erred in law and fact in failing to take cognizance of the fact that the property Maisonette No. 209/5457 (Original No. 209/408/6) being the Appellant’s , no orders can issue against her without granting her an opportunity to be heard.
3. The Honourable Court erred in fact and law in noting that there were pending applications (Appellants application dated 14th July 2017) that had not been determined and claimed them as abandoned despite noting that there was no directions given to those applications and neither were they determined.
4. The Honourable Court erred in law and in finding that the Appellant was served with pleadings and a hearing notice yet satisfactory reasons were advance on why there was non compliance and non attendance on the part of the Appellant for failure of service.
5. The honourable court erred in law and fact in finding that the Appellant was properly served a hearing notice and deeming the previous application dated 21st February 2023 as spent and compromised without a substantive hearing.
6. The Honourable Court erred in law and fact in finding that the Appellant did not move the court on an application to be heard despite the instant application seeking such orders.
7. The Honourable Court erred in law and in fact in finding the Appellant was heard before the consent judgment was entered.
8. The Honourable Court erred in law and in fact in failing to deliberate, give directions and render itself on the Appellant’s application dated 14th July 2017 and subsequently condemning the Applicant unheard despite confirming that the Appellant was not heard.
9. The Honourable Court erred in law and in fact in failing to review the consent orders and pronouncing itself in finality on reliance of the functus officio doctrine.
10. The Honourable Magistrate erred in law and fact in giving superficial or no consideration to the evidence tendered in favour of the Appellant’s case, while giving undue and disproportionate weight and significance to the evidence tendered by the Plaintiff.
11. The Honourable Magistrate abused her discretion, acted whimsically and in bad faith in finding that thre have been a laxity/redemption of opportunities on the part of the Appellant to have the applications before the court finalized while ignoring the fact that the Appellant was not granted an opportunity to defend herself against the said proceedings.
12. The Learned Magistrate erred in fact and in law in taking into account irrelevant and omnibus issues and arriving at a wrong conclusion of dismissing the applicant’s application.
13. The Honourable Magistarte erred in law and fact in failing to acknowledge and meritoriously determine the subsequent applications filed by the Appellant dated 14th July 2023.
14. The Honourable Magistrate erred in law and fact in striking out the Appellant’s Application on the basis that it lacks merit.
13. She prayed that the appeal be allowed ;the entire ruling of the Honourable Magistrate dated 1st September be set aside; that in the interest of justice all parties be heard and the matter be returned to the Magistrate’s Court for fresh hearing; that in the interest of justice, this Honourable Court do issue any other orders it deems just, fair and for a conclusive determination of this appeal before this Honourable Court; and that costs be provided for.
14. The Court directed that the appeals be consolidated and canvassed by way of written submissions. All the parties have complied.
SUMMARY OF SUBMISSIONS
15. The 1st Apppellants submissions are dated 28th November 2023. The 1st Appellant also filed list of authorities dated 28th November 2023.
16. The 1st Appellant identifies the following as the issues for determination
a. Whether the learned Trial Magistrate erred in law and in fact by failing to determine that the ex-parte judgment dated 15th February 2023 was irregular for want of service and ought to have been set aside ex debito justitae
b. Whether the learned Magistrate erred in law in applying principles for variation or setting aside a consent in civil cases to a children case.
c. Whether the Learned Trial Magistrate erred in law and in fact by failing to consider and uphold the best interests of the minor as paramount and of utmost consideration in the matter
17. It is the 1st Appellant’s submission that the judgment entered against him is irregular as the service is challenged and reference made to the Court of Appeal decision in James Kanyiita Nderitu & Anor vs Marios Philotas Ghikas & Anor [2016] eKLR urging that the Appellants right to be heard was violated.
18. The Appellant further argues that by dint of Section 120 of the Children’s Act the Court has a wide discretion that enable it vary the orders granted.
19. It is the submission of the 1st Appellant that the Ex-parte judgment ought to have been set aside and in any event this is a matter that the court ought to have exercised its jurisdiction to vary the consent order in the best interest of the child. It is submitted that if the Court had considered the best interests of the Child it would have arrived at a different conclusion.
20. It is submitted that the decision to keep the Child at Nairobi International School threatens the monior’s right to education as envisaged under Article 53 (1) of the Consitutrion of Kenya, 2010 and Section 13 of the Children Act.
21. The 2nd Appellant’s Submissions are dated 8th January 2024 and identifies the following as the issues for determination
a. Whether the Trial court erred by declining to review, vary or set aside the judgment delivered on 7th February 2023 and the Decree issued on 15th February 2023 on grounds of irregular service
b. Whether the trial court erred in holding that the Application dated 21st February 2023 stood abandoned.
c. Whether the trial Court erred in failing to set aside the Consent order
22. It is the submission of the 2nd Appellant that the Court erred in not interrogating the adequacy of the service of the Hearing Notice, thus infringing on the 2nd Appellant’s constitutionally guaranteed right to be heard.
23. In the alternative it is averred that even if the service is deemed to be proper the non attendance of the Appellant in Court was occasioned by the indolence of Counsel and this should not be visitd on the Appellant. The 2nd Appellant relies on the decision in Richard Nchapi Leivagu v IEBC & 2 Others [2013] eKLR
24. It is submitted that the 2nd Appellant’s proprietary rights should not be sacrificed at the altar of the child’s best interest and justice demands that she be heard.
25. It is further submitted that the Court erred in refusing to vary the Consent order. It is submitted that the circumstances under which the consent was recorded necessitated that it be set aside.
26. It is submitted that the scales of justice tilt towards allowing the Appeal
27. The Respondent’s submissions are dated 1st March 2024 and identify the following as the issues for determination
a. Whether the Respondents were granted a fair hearing
b. Whether the Appeal herein is detrimental to the interests of the minor
c. Whether the Applications by the Respondents have met the threshold for variation of orders
28. It is the Respondent’s submission that the 2nd Appellant was lax in prosecuting the Application dated 14th July 2017 and that therefore the Court was right in holding that they had abandoned it. It is submitted that the Trial Magistrate correctly exercised her discretion in declining to set aside the ex parte judgment.
29. It is submitted that the Judgment is in the best interests of the child as it meets the criteria set out in the First Schedule of the Children’s Act, it is contended that the Appeal if allowed will frustrate and destabilise the minor.
30. It is submitted that subsequent to the judgment delivered on 7th February 2023, a consent was recorded on the 15th June 2023 between the 1st Appeallant and the Respondent. No suffieint basis has been laid to disturb that consent. It is submitted that litigation must come to an end and having the matter reheard will be detrimental to the interests of the child.
ANALYSIS AND DETERMINATION.
31. Having considered the grounds of appeal together with the record of appeal and further, having taken into consideration parties’ rival submissions, issues that emerge for consideration are;
i. Whether the Court vide its ruling dated 1st September 2023 erred in declining to set aside the Ex parte judgment entered on 7th February 2023 against the 1st and 2nd Appellants
ii. Whether the Court erred in refusing to vary/ review or set aside the Consent Order of 15th June 2023?
iii. Who should pay Costs of the Suit
Whether the Court erred in declining to set aside the ex parte judgment.
32. In evaluating and assessing the evidence before the trial Court, this Court is enjoined to apply the principles laid down in Shah v Mbogo & Another [1968] EA 93 on circumstances under which an appellate Court may interfere with a decision of the trial Court where it was held that:
“I think it is well settled that this Court will not interfere with the exercise of discretion by the inferior Court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so, arrived at a wrong conclusion.”
33. The principles applicable in application for setting aside of ex-parte Judgment are now well settled as shown in the case of Kimani Kigano & Co. Advocates Vs Jimba Credit Corporation Limited [1991] KLR 503 where the court stated as follows;
“The power to set aside ex-parte judgment in default is discretionary. The discretion is unfettered provided it is properly exercised. That discretion is a judicial one and therefore it must be exercised on the basis of evidence and sound legal principles.The Court has power under the provisions of Order 1XA Rule 10 of the (old) Civil Procedure Rules on terms as are just. The Court is obliged to look at the defence that the applicant defendant may have to the claim; and if a party establishes that he has a reasonable defence and which appears on the face of the pleadings to contain considerable merit, the Court ought to be inclined toward setting aside.”
34. At issue is whether the Appellants were properly served for the hearing on 1st December 2022. The answer to this question is important as it answers the question as to whether the Judgment entered was regular or irregular. On perusal of the Court record I note that on 24th October 2022, the Court fixed the main suit for hearing on 1st December 2022 and directed that the Hearing Notice to Issue as there was no appearance for the Defendants.
35. On 1st December 2022 when the matter came up for hearing there was No Appearance for the Defendant, it is not clear from the record whether the Court satisfied itself on the service of the Defendants so that the matter would proceed in their absence.
36. This notwithstanding the express provisions of Order 12 rule 2 of the Civil Procedure rules which provide
When only plaintiff attends [Order 12, rule 2]
If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied—
(a) that notice of hearing was duly served, it may proceed ex parte;
(b) that notice of hearing was not duly served, it shall direct a second notice to be served; or
(c) that notice was not served in sufficient time for the defendant to attend or that for other sufficient cause the defendant was unable to attend, it shall postpone the hearing. ( Emphasis Supplied)
38. It is evident that before proceeding to the hearing the Court was required to make a determination that the Defendants were duly served and were absent, this was not done.
39. Little wonder that in their Applications to set aside the judgments both Appellants state that they were not properly served as their advocate was served on short notice.
40. The trial Magistrate at paragraph 15 of her ruling casually dimisses the lamentations of the Counsel on the short notice given towards the hearing and further misapprehends the orders sought by the 2nd Appellant.
41. I have no hesitation in finding that the learned trial magistrate erred in failing to give due consideration to the concerns raised by the Appellants on the short notice given and that this made it impossible for them to attend Court.
42. As has been established by judicial precedent a party’s right to be heard is constitutionally guaranteed and the Court should be loath to deny a party this right. I will not restate the Submissions of the Appellants on this ground. The decision of Aboudha J in Potters House Academy v Leah Chemeli Kemer [2022] eKLR captures this points well when he states
[4] The Court should always lean towards letting parties ventilate their disputes. When a Court finally renders its determination over any dispute submitted to it to resolve, either party ought to feel they had their day in Court even if the decision might not favour them. An ex parte hearing therefore deprives a party of this right and should only be conducted in exceptional cases where it is plain and clear that the defendant was properly served but failed and or ignored to attend Court. In an application to set aside an ex parte hearing the Court ought to listen to what explanation or excuse the applicant has that prevented them from attending Court. If found reasonable, the application ought to be allowed.
43. The matter would rest there except that on 15th June 2023 the parties proceeded to record a consent relating to the minors access to education. It is this consent order that the 1st Appellant sought to review, vary or set aside. The Court record confirms that at the time the Consent was recorded the 1st Appellant was properly represented by Counsel. There is nothing on the Court record that would lend credence to the 1st Appellants contention that the same was recorded under pressure or duress. I would agree with Trial Magistrate that the Consent was properly entered into.
44. The issue that I feel the learned Magistrate failed to adequately consider is whether notwithstanding the fact that the Consent was properly recorded the same ought to be varied in the best interests of the Child, or as was stated by the 1st Appellant
“ it is in the best interest of the minor that the Consent be varied through a comprehensive parental responsibility agreement that is affordable, futuristic and will ensure the dreams of the minor are realised”
45. Courts are enjoined to colour outside the margins when seeking to safeguard the best interests of the Child. Courts will act within the law but in doing so apply a child sensitive lens and constantly ask themselves the question how will the order I make advance the interests of the Child both in the short and long term.
46. In this instance the Court was invited to consider whether the Orders as issued stood a chance of being enforced. Both parents are struggling to pay the fees at Nairobi International School, the parties are dependant on the good will of the Aunt of the Child to have accommodation.
47. Responsibility for maintaining and providing for the Child vests primarily on the parents Courts must be guided by the means and ability of the parents. It is an exercise in futility I think to order that the 1st Appellant support the continued stay of the minor at Nairobi International School when it is evident that he lacks the financial capacity to do so.
48. I agree that Section 120 of the Children Act, grants the Court wide discretion when it comes to making orders that safeguard the welfare of the Child. I hold therefore that to the extent that the Learned Magistrate did not in her ruling make a determination as regards the best interests of the Child the impugned ruling must be set aside. Article 53 (2) of the Constitution is couched in mandatory terms.
49. The Court has jurisdiction to set aside consent orders or judgment in a matter concerning the child. The guiding principle is the best interest of the child. Article 53 (2) of the Constitution provides:-
“A Child’s best interests are of paramount importance in every matter concerning the child.” See also Section 4 (2) of the Act.
50. What this court has to consider is whether the variation of the order was in the best interest of the child.
51. It would be prejudicial to keep the minor at the current school. She requires stability. It would be reasonable to only vary the order to ensure that the Child has a chance to an uninterrupted stay in school.
52. In the end, I find that the Appeal by the 2nd Appellant succeeds in its entirety the Judgment of 7th February 2023 as against the 2nd Defendant is set aside
53. The Appeal by the 1st Appellant partially succeeds. The Consent is varied on the following terms
a. The minor will be transferred to Loreto Convent Msongari effective the new academic term in 2024 or other school as agreed upon by the parties.
b. Both parents will meet the school fees and school related expenses equally
c. The 1st Appellant will clear the school fees arrears at Nairobi International School and is at liberty to negotiate directly with the school
d. The 1st Appellant to contribute equally towards the minors maintenance and upkeep
e. The 1st Appellant to provide for the minors accommodation
f. Both the 1st Appellant and Respondent to have joint legal custody of the minor. The Respondent to have actual custody of the minor and the 1st Appellant to be granted access during school holidays and on alternative weekends during the school term.
54. This being a family matter each party will bear their own costs.
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 15th day of March, 2024.