1. This Appeal arises from the Judgment and Decree of Trial Court delivered on 18th March 2024 by Hon. Opiyo Green Odera, Resident Magistrate in Tononoka Children Case No. E132 of 2023.
2. The Trial Court entered Judgment and granted the following Orders:
(a) Both parties have equal parental responsibility to the minors.
(b) Legal custody to be joint between the parties
(c) The Plaintiff to have actual / physical custody, care and control of the minors
(d) The Defendant to have unlimited access to the minors when he is in the country and half the school holidays when he is in the country. The access order shall not grant the Defendant the right to take away the minors out of Kenya unless with the consent of the Plaintiff or on an application.
(e) The Defendant shall pay school fees and related expenses as per the school fees structure.
(f) The Defendant shall provide shelter to the minors at the matrimonial home or equal status structure.
(g) The Plaintiff shall meet household utilities
(h) The Defendant shall contribute Kes. 50000, monthly towards food for the minors by 5th of every month and the Plaintiff shoulder additional contribution.
(i) The medical expenses are shared equally.
(j) Both parents shall provide the minor with clothing on quarterly basis at the rate of Kes. 10,000/=.
(k) Entertainment fir the minors shall be shared equally.
(l) Each party to bear own costs.
3. The Appellant was the Defendant. Being aggrieved, preferred the following grounds in the Memorandum of Appeal.
(a) The Trial Court erred in law and fact in finding the Appellant will solely cater for school fees and related expenses.
(b) The Trial Court erred in law and fact in finding that the Appellant would provide Ksh. 50,000 monthly for food without regard to the current financial status.
(c) The Trial Court erred in law and fact in finding that the Appellant shall provide Ksh. 10,000 per quarter on entertainment.
(d) The Trial Court erred in law and fact in failing to make a finding on paternity test of the second minor.
(e) The Trial Court erred in law and fact in failing to adhere to the principle of equal parental responsibility for both parties.
(f) The Trial Court erred in law and fact in failing to consider the testimonies and evidence of the parties.
Pleadings
4. The Respondent filed the suit vide the Plaint dated 27th February 2023.
5. The Respondent instituted the Children Court Case substantially seeking the following reliefs against the Appellant:
i. A declaration that the Defendant has assumed parental responsibility for the issue Ariana Kyla Njeri and an order to that effect.
ii. The defendant do provide maintenance for the minors at Ksh. 88,000/= per month.
iii. The defendant be compelled to cater for medical expenses of the minors
iv. Actual custody be granted to the Plaintiff with alternative weekend access by the Defendant.
v. Defendant to access the minors within Mombasa and with an order of court or consent of Plaintiff, outside Mombasa.
6. The Respondent then averred in the Plaint that in 2010, she got married to the Appellant and they together got 2 children, one born in 2014 and the other in 2017.
7. The Appellant moved to work in juba and effective 2019, cut off communication with the Respondent.
8. Further, that the Respondent was forced to file divorce cause and obtained a divorce certificate. .
9. The Appellant abandoned his parental responsibility to the Respondent hence the suit.
10. The Appellant as Defendant filed Defence dated 2nd May 2023. He denied the averments in the Plaint.
11. It was his stated case that despite moving to Juba, he continued to maintain the minors.
The Respondent’s evidence
12. During trial, PW1, the Respondent testified and relied on her witness statement and list of documents dated 22nd February 2023 and amended statement of 25th May 2023.
13. It was her case that the Appellant was her ex husband and father of her 2 children. They were married in 2012 and divorced in 2021 having separated in 2019.
14. On cross examination, she had no objection conducting DNA on the second child. She worked at Sense of Africa as a tour consultant. She collected rent and the rental income was Ksh. 150,000/= per month. She was taking care of everything. The Appellant had seen the children only once.
The Appellant’s evidence
15. The Appellant testified as Defendant in the lower court case. He relied on his witness statement and list of documents filed in court both dated respectively 3rd July 2023.
16. It was his case that he requested for DNA for the 2nd child. The fees was high. The rental house was to take care of the needs of the children. The children stayed in the only home they knew. He had not made arrangements for maintenance.
17. He had sent maintenance but that was before 2019.
The Appellant’s Submissions
18. The Appellant filed submissions dated 11.10.2024. It was submitted under grounds 1,2,3 and 5 that the issues in the appeal related to the welfare and best interest of the minors and which required that both parents share equal reasonability. He cited section 8(1) and 110 of the Children’s Act and Article 53 (2) of the Constitution.
19. It was submitted that the trial court gave maintenance reliefs meant to punish the Appellant has they were grossly excessive. Reliance was placed on the case of SKM vs. MWI [2015] eKLR, the Honourable where it was submitted that Justice Musyoka, enunciated:
"Maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the child or children in question, while at the same time respecting the financial status of the parent. A child can only be maintained within the means of the parent in question.”"
20. Further, reliance was placed on C.I.N v J.N.N. [2014| eKLR where Hon. Justice Kimaru (as he then was) stated as follows:
"It will not do [for a party] to say that she has an uncertain source of income and therefore the responsibility of maintaining the children should only be borne by the adverse party. The (said) party must establish, to the satisfaction of the court, that she has also made effort to provide for the upkeep of the children.
21. It was also sumitted that DNA test ought to have been carried out since DNA testing serves as a reliable method for confirming parentage. A well established legal principle dictates that a court should order DNA testing if it is in the child's best interests. Ensuring accurate parentage benefits for both the child and the responsible parent. In FKW (suing as the mother and next friend of GDW (Minor) v. DMM [2015] eKLR the Court emphasized that:
"...Looking at the applicant's case from this perspective, there is no doubt that it is in the best interests of the subject child that the DNA test should be taken. It is the child's constitutional right and he is better of growing up with the knowledge of who his parents are. As noted earlier there is no other way of determining who the father of the subject child is apart from conducting a DNA test and therefore this test is necessary in the circumstances of this case..."
Respondent’s Submissions
22. The Respondent filed submissions dated 28th January 2025.
23. It was submitted that the Respondent herein approached the court because the Appellant had left all of the parental responsibility to her and despite having rental income from the matrimonial property, this was not enough for her to cater to all the needs of the suit minors. Reliance was placed on section 29 of the Children’s Act as follows:
"(1).....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 subsection (1) include, but are not limited to- (a)the duty to maintain the child and, in particular, to provide the child with- (i)basic nutrition; (ii)shelter; (iii)water and sanitation facilities; (iv)clothing; (v)medical care, including immunization; (vi)basic education; and (vii)general guidance, social conduct and moral values; (b)the duty to protect the child from neglect, abuse, discrimination or other differential treatment; (c)the duty to- (i)provide parental guidance in religious, moral, social, cultural and other values that are not harmful to the child; (ii)determine the name of the child; (iii)procure registration of the birth of his or her child; (iv)appoint a legal guardian in respect of the child; (v)receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child; (vi)facilitate or restrict the migration of the child from or within Kenya; (vii)upon the death of the child, to arrange for the burial, cremation of the child or any other acceptable method of interment; and (d) the duty to ensure that, during the temporary absence of the parent or guardian, the child shall be committed to the care of a fit person.
24. It was the submission of the Respondent that the principle of parental responsibility should not mean equal responsibility. Reliance was placed inter alia on the case of M.K. vs C.K.K НСА. 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."
25. Based on the above, it was submitted for the Respondent that financial contribution is only a small aspect of parental contribution. It factors in not only maintenance, but actual custody as well.
26. On paternity test, it was submitted that the Appellant abandoned an order allowing him to do a DNA test that was given at the Kadhi's court, as is clearly evident from the court records. The burden was on the Appellant to disprove paternity. Reliance was placed on the case of Muthoka & another (Suing as Administrators and Legal Representatives of the Estate of the Late Elijah Maina Wangui) v Ndirangu & another (2024) eKLR thus:
"It follows that the initial burden of proof lies on the Plaintiff on the matters they assert and on the defendant on the matters they assert. The evidential burden can shift to the other side and crystalize if not rebutted. Therefore, the burden is not on the plaintiff, or the defendant, it is on the party who alleges. That is essentially the place of pleadings. Whereas parties tend to have generic particulars of negligence, it is incumbent upon a party raising specific issues to prove them. As such the burden of proving negligence is on the plaintiff while contributory negligence is on the defendant.
Analysis and Determination
27. 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.
28. 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.”
29. 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.”
30. 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.
31. 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…”
32. The issue that fall for this Court’s determination is whether the Trial Court erred in law and fact in its finding on the maintenance of the children herein.
33. As to the issue raised faulting the court for not ordering paternity, I dimes this issue in limine. The Appellant having abandoned the prayer prior to the judgment, it will not be fair and just for the court to revisit the prayer at this instance.
34. This Appeal does not challenge the finding of the Trial Court on custody and I will not venture to interfere with the court’s finding in that aspect.
35. 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.
36. 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.
37. 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.
38. 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.
39. The Appellant consequently submitted that Trial Court erred in law and fact in ordering him to cater for Kshs. 50,000/- monthly towards the maintenance of the minors’ schools fees ands Ksh. 10,000 quarterly for clothing as well as cater for the shelter needs of the minors.
40. I note on this that the Trial Court directed as follows:
a) Both parties have equal parental responsibility to the minors.
b) Legal custody to be joint between the parties
c) The Plaintiff to have actual / physical custody, care and control of the minors
d) The Defendant to have unlimited access to the minors when he is in the country and half the school holidays when he is in the country. The access order shall not grant the Defendant the right to take away the minors out of Kenya unless with the consent of the Plaintiff or on an application.
e) The Defendant shall pay school fees and related expenses as per the school fees structure.
f) The Defendant shall provide shelter to the minors at the matrimonial home or equal status structure.
g) The Plaintiff shall meet household utilities
h) The Defendant shall contribute Kes. 50000, monthly towards food for the minors by 5th of every month and the Plaintiff shoulder additional contribution.
i) The medical expenses are shared equally.
j) Both parents shall provide the minor with clothing on quarterly basis at the rate of Kes 10,000/=.
k) Entertainment fir the minors shall be shared equally.
l) Each party to bear own costs.
41. This court notes that the trial court appears to have diverted most of the upkeep of the children to the Appellant. Even though the Appellant had better financial capacity, the Respondent was not without income. Her case was that she was a consultant and Sense Tours. She must have earned some income. No affidavit of means was filed in court as to rebut this presumption.
42. Parental responsibility is not necessarily equal but should be shared. 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.
12. To this court, the welfare and best interest of the 2 affected children in this case demanded that they access quality education, health, nutrition, interaction, among other necessary child developmental parameters. It was uncontested in evidence that the Respondent was staying with the children. Section 94 (1) of the Children’s Act guides the Court when making an order for financial provision for maintenance of a child as follows;
a. “the income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order ,have or are likely to have in the foreseeable future.
b. The financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future
c. The financial need of the child and the child’s current circumstances
13. The Respondent’s full actual custody of the minors is supported by Court of Appeal in the case of J O versus SAO [2016] eKLR where it was stated as follows in paragraph 13: -
“There is plethora of decisions by this court as well as the High Court that in determining matters of the custody of the children, especially of tender age, except where exceptional circumstance exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise and control of the children. Exceptional circumstances include the mother being unsettled, where the mother has taken a new husband; where she is living in quarters that are in disgraceful or immoral. See Sospeter Ojuamong versus Lynnette Amondo Otieno Civil Appeal No. 175 of 2006; Karanu versus Karanu [1975] EA 18 and Githunguri versus Githunguri [1979]eKLR”.
43. This Court is also alive to the reality that the Respondent was given full actual custody with limited access by the Respondent. This means the Respondent has exclusive care and control of the minors. 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.
44. The earning capabilities of the parents must be taken into account. Equal contribution does not mean each party must contribute similar amount towards upkeep of the children. It is trite law that equal parental responsibility does not mean equal financial or other contribution as it was held in the case of E.M.M Vs M.O.O(2016)eKLR:-
“However equal responsibility does not mean equal and similar contribution as the income of each parent, and other non-monetary contribution must be borne in mind.”
45. All said, in my re-evaluation, the orders that commend to me is to allow the appeal and interfere with the findings of the trial court. .
46. Therefore, the Appellant has satisfied this court the manner in which the finding of the Trial Court on maintenance is against the welfare and best interest of the minor or refractory to the parental rights of the Appellant. 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.”
47. I have said enough to demonstrate that the appeal is merited.
Determination
48. In the upshot, I make the following order;
a) The Appeal is merited and allowed in part;
b) The Appellant shall pay Kes 30,000/- per month as maintenance of the children on or before the 5th of every month;
c) The prayer for paternity test is dismissed;
d) For the avoidance of doubt, save as stated above, the orders of the trial court in the impugned judgment shall stand;
e) As this is a family matter, each party to bear own costs.
49. Orders accordingly.
Dated and signed in Mombasa this 27th day of August 2025. Delivered virtually through Microsoft TEAMS.
2. The Trial Court entered Judgment and granted the following Orders:
(a) Both parties have equal parental responsibility to the minors.
(b) Legal custody to be joint between the parties
(c) The Plaintiff to have actual / physical custody, care and control of the minors
(d) The Defendant to have unlimited access to the minors when he is in the country and half the school holidays when he is in the country. The access order shall not grant the Defendant the right to take away the minors out of Kenya unless with the consent of the Plaintiff or on an application.
(e) The Defendant shall pay school fees and related expenses as per the school fees structure.
(f) The Defendant shall provide shelter to the minors at the matrimonial home or equal status structure.
(g) The Plaintiff shall meet household utilities
(h) The Defendant shall contribute Kes. 50000, monthly towards food for the minors by 5th of every month and the Plaintiff shoulder additional contribution.
(i) The medical expenses are shared equally.
(j) Both parents shall provide the minor with clothing on quarterly basis at the rate of Kes. 10,000/=.
(k) Entertainment fir the minors shall be shared equally.
(l) Each party to bear own costs.
3. The Appellant was the Defendant. Being aggrieved, preferred the following grounds in the Memorandum of Appeal.
(a) The Trial Court erred in law and fact in finding the Appellant will solely cater for school fees and related expenses.
(b) The Trial Court erred in law and fact in finding that the Appellant would provide Ksh. 50,000 monthly for food without regard to the current financial status.
(c) The Trial Court erred in law and fact in finding that the Appellant shall provide Ksh. 10,000 per quarter on entertainment.
(d) The Trial Court erred in law and fact in failing to make a finding on paternity test of the second minor.
(e) The Trial Court erred in law and fact in failing to adhere to the principle of equal parental responsibility for both parties.
(f) The Trial Court erred in law and fact in failing to consider the testimonies and evidence of the parties.
Pleadings
4. The Respondent filed the suit vide the Plaint dated 27th February 2023.
5. The Respondent instituted the Children Court Case substantially seeking the following reliefs against the Appellant:
i. A declaration that the Defendant has assumed parental responsibility for the issue Ariana Kyla Njeri and an order to that effect.
ii. The defendant do provide maintenance for the minors at Ksh. 88,000/= per month.
iii. The defendant be compelled to cater for medical expenses of the minors
iv. Actual custody be granted to the Plaintiff with alternative weekend access by the Defendant.
v. Defendant to access the minors within Mombasa and with an order of court or consent of Plaintiff, outside Mombasa.
6. The Respondent then averred in the Plaint that in 2010, she got married to the Appellant and they together got 2 children, one born in 2014 and the other in 2017.
7. The Appellant moved to work in juba and effective 2019, cut off communication with the Respondent.
8. Further, that the Respondent was forced to file divorce cause and obtained a divorce certificate. .
9. The Appellant abandoned his parental responsibility to the Respondent hence the suit.
10. The Appellant as Defendant filed Defence dated 2nd May 2023. He denied the averments in the Plaint.
11. It was his stated case that despite moving to Juba, he continued to maintain the minors.
The Respondent’s evidence
12. During trial, PW1, the Respondent testified and relied on her witness statement and list of documents dated 22nd February 2023 and amended statement of 25th May 2023.
13. It was her case that the Appellant was her ex husband and father of her 2 children. They were married in 2012 and divorced in 2021 having separated in 2019.
14. On cross examination, she had no objection conducting DNA on the second child. She worked at Sense of Africa as a tour consultant. She collected rent and the rental income was Ksh. 150,000/= per month. She was taking care of everything. The Appellant had seen the children only once.
The Appellant’s evidence
15. The Appellant testified as Defendant in the lower court case. He relied on his witness statement and list of documents filed in court both dated respectively 3rd July 2023.
16. It was his case that he requested for DNA for the 2nd child. The fees was high. The rental house was to take care of the needs of the children. The children stayed in the only home they knew. He had not made arrangements for maintenance.
17. He had sent maintenance but that was before 2019.
The Appellant’s Submissions
18. The Appellant filed submissions dated 11.10.2024. It was submitted under grounds 1,2,3 and 5 that the issues in the appeal related to the welfare and best interest of the minors and which required that both parents share equal reasonability. He cited section 8(1) and 110 of the Children’s Act and Article 53 (2) of the Constitution.
19. It was submitted that the trial court gave maintenance reliefs meant to punish the Appellant has they were grossly excessive. Reliance was placed on the case of SKM vs. MWI [2015] eKLR, the Honourable where it was submitted that Justice Musyoka, enunciated:
"Maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the child or children in question, while at the same time respecting the financial status of the parent. A child can only be maintained within the means of the parent in question.”"
20. Further, reliance was placed on C.I.N v J.N.N. [2014| eKLR where Hon. Justice Kimaru (as he then was) stated as follows:
"It will not do [for a party] to say that she has an uncertain source of income and therefore the responsibility of maintaining the children should only be borne by the adverse party. The (said) party must establish, to the satisfaction of the court, that she has also made effort to provide for the upkeep of the children.
21. It was also sumitted that DNA test ought to have been carried out since DNA testing serves as a reliable method for confirming parentage. A well established legal principle dictates that a court should order DNA testing if it is in the child's best interests. Ensuring accurate parentage benefits for both the child and the responsible parent. In FKW (suing as the mother and next friend of GDW (Minor) v. DMM [2015] eKLR the Court emphasized that:
"...Looking at the applicant's case from this perspective, there is no doubt that it is in the best interests of the subject child that the DNA test should be taken. It is the child's constitutional right and he is better of growing up with the knowledge of who his parents are. As noted earlier there is no other way of determining who the father of the subject child is apart from conducting a DNA test and therefore this test is necessary in the circumstances of this case..."
Respondent’s Submissions
22. The Respondent filed submissions dated 28th January 2025.
23. It was submitted that the Respondent herein approached the court because the Appellant had left all of the parental responsibility to her and despite having rental income from the matrimonial property, this was not enough for her to cater to all the needs of the suit minors. Reliance was placed on section 29 of the Children’s Act as follows:
"(1).....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 subsection (1) include, but are not limited to- (a)the duty to maintain the child and, in particular, to provide the child with- (i)basic nutrition; (ii)shelter; (iii)water and sanitation facilities; (iv)clothing; (v)medical care, including immunization; (vi)basic education; and (vii)general guidance, social conduct and moral values; (b)the duty to protect the child from neglect, abuse, discrimination or other differential treatment; (c)the duty to- (i)provide parental guidance in religious, moral, social, cultural and other values that are not harmful to the child; (ii)determine the name of the child; (iii)procure registration of the birth of his or her child; (iv)appoint a legal guardian in respect of the child; (v)receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child; (vi)facilitate or restrict the migration of the child from or within Kenya; (vii)upon the death of the child, to arrange for the burial, cremation of the child or any other acceptable method of interment; and (d) the duty to ensure that, during the temporary absence of the parent or guardian, the child shall be committed to the care of a fit person.
24. It was the submission of the Respondent that the principle of parental responsibility should not mean equal responsibility. Reliance was placed inter alia on the case of M.K. vs C.K.K НСА. 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."
25. Based on the above, it was submitted for the Respondent that financial contribution is only a small aspect of parental contribution. It factors in not only maintenance, but actual custody as well.
26. On paternity test, it was submitted that the Appellant abandoned an order allowing him to do a DNA test that was given at the Kadhi's court, as is clearly evident from the court records. The burden was on the Appellant to disprove paternity. Reliance was placed on the case of Muthoka & another (Suing as Administrators and Legal Representatives of the Estate of the Late Elijah Maina Wangui) v Ndirangu & another (2024) eKLR thus:
"It follows that the initial burden of proof lies on the Plaintiff on the matters they assert and on the defendant on the matters they assert. The evidential burden can shift to the other side and crystalize if not rebutted. Therefore, the burden is not on the plaintiff, or the defendant, it is on the party who alleges. That is essentially the place of pleadings. Whereas parties tend to have generic particulars of negligence, it is incumbent upon a party raising specific issues to prove them. As such the burden of proving negligence is on the plaintiff while contributory negligence is on the defendant.
Analysis and Determination
27. 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.
28. 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.”
29. 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.”
30. 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.
31. 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…”
32. The issue that fall for this Court’s determination is whether the Trial Court erred in law and fact in its finding on the maintenance of the children herein.
33. As to the issue raised faulting the court for not ordering paternity, I dimes this issue in limine. The Appellant having abandoned the prayer prior to the judgment, it will not be fair and just for the court to revisit the prayer at this instance.
34. This Appeal does not challenge the finding of the Trial Court on custody and I will not venture to interfere with the court’s finding in that aspect.
35. 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.
36. 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.
37. 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.
38. 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.
39. The Appellant consequently submitted that Trial Court erred in law and fact in ordering him to cater for Kshs. 50,000/- monthly towards the maintenance of the minors’ schools fees ands Ksh. 10,000 quarterly for clothing as well as cater for the shelter needs of the minors.
40. I note on this that the Trial Court directed as follows:
a) Both parties have equal parental responsibility to the minors.
b) Legal custody to be joint between the parties
c) The Plaintiff to have actual / physical custody, care and control of the minors
d) The Defendant to have unlimited access to the minors when he is in the country and half the school holidays when he is in the country. The access order shall not grant the Defendant the right to take away the minors out of Kenya unless with the consent of the Plaintiff or on an application.
e) The Defendant shall pay school fees and related expenses as per the school fees structure.
f) The Defendant shall provide shelter to the minors at the matrimonial home or equal status structure.
g) The Plaintiff shall meet household utilities
h) The Defendant shall contribute Kes. 50000, monthly towards food for the minors by 5th of every month and the Plaintiff shoulder additional contribution.
i) The medical expenses are shared equally.
j) Both parents shall provide the minor with clothing on quarterly basis at the rate of Kes 10,000/=.
k) Entertainment fir the minors shall be shared equally.
l) Each party to bear own costs.
41. This court notes that the trial court appears to have diverted most of the upkeep of the children to the Appellant. Even though the Appellant had better financial capacity, the Respondent was not without income. Her case was that she was a consultant and Sense Tours. She must have earned some income. No affidavit of means was filed in court as to rebut this presumption.
42. Parental responsibility is not necessarily equal but should be shared. 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.
12. To this court, the welfare and best interest of the 2 affected children in this case demanded that they access quality education, health, nutrition, interaction, among other necessary child developmental parameters. It was uncontested in evidence that the Respondent was staying with the children. Section 94 (1) of the Children’s Act guides the Court when making an order for financial provision for maintenance of a child as follows;
a. “the income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order ,have or are likely to have in the foreseeable future.
b. The financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future
c. The financial need of the child and the child’s current circumstances
13. The Respondent’s full actual custody of the minors is supported by Court of Appeal in the case of J O versus SAO [2016] eKLR where it was stated as follows in paragraph 13: -
“There is plethora of decisions by this court as well as the High Court that in determining matters of the custody of the children, especially of tender age, except where exceptional circumstance exist, the custody of such children should be awarded to the mother, because mothers are best suited to exercise and control of the children. Exceptional circumstances include the mother being unsettled, where the mother has taken a new husband; where she is living in quarters that are in disgraceful or immoral. See Sospeter Ojuamong versus Lynnette Amondo Otieno Civil Appeal No. 175 of 2006; Karanu versus Karanu [1975] EA 18 and Githunguri versus Githunguri [1979]eKLR”.
43. This Court is also alive to the reality that the Respondent was given full actual custody with limited access by the Respondent. This means the Respondent has exclusive care and control of the minors. 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.
44. The earning capabilities of the parents must be taken into account. Equal contribution does not mean each party must contribute similar amount towards upkeep of the children. It is trite law that equal parental responsibility does not mean equal financial or other contribution as it was held in the case of E.M.M Vs M.O.O(2016)eKLR:-
“However equal responsibility does not mean equal and similar contribution as the income of each parent, and other non-monetary contribution must be borne in mind.”
45. All said, in my re-evaluation, the orders that commend to me is to allow the appeal and interfere with the findings of the trial court. .
46. Therefore, the Appellant has satisfied this court the manner in which the finding of the Trial Court on maintenance is against the welfare and best interest of the minor or refractory to the parental rights of the Appellant. 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.”
47. I have said enough to demonstrate that the appeal is merited.
Determination
48. In the upshot, I make the following order;
a) The Appeal is merited and allowed in part;
b) The Appellant shall pay Kes 30,000/- per month as maintenance of the children on or before the 5th of every month;
c) The prayer for paternity test is dismissed;
d) For the avoidance of doubt, save as stated above, the orders of the trial court in the impugned judgment shall stand;
e) As this is a family matter, each party to bear own costs.
49. Orders accordingly.
Dated and signed in Mombasa this 27th day of August 2025. Delivered virtually through Microsoft TEAMS.