'1. The Court below delivered a judgment on 3rd July 2024 in Tononoka Children Case No E422 of 2022; Ramla Othman Kheri v Jumaa Abdalla Ngozi vide which it found as follows:-
(1) That both parties have equal parental responsibility for the minors;
(2) Both parties have joint legal custody of the minors;
(3) The plaintiff shall have physical actual custody and control of the minors;
(4) The defendant shall have unlimited access to the minor. The same shall include half the school holidays. The travel cost shall be borne by the defendant.
(5) The plaintiff shall provide shelter and utilities to the minors;
(6) The defendant shall pay school fees and related expenses as per the fees structure where the minors are currently schooling;
(7) The defendant shall contribute a monthly upkeep of Kes.30,000.00 towards the food for the minors, and the same shall be paid to the plaintiff on or before the 5th day of each month. The same is due from July 2024;
(8) The defendant shall provide the minors with a medical cover to be agreed upon by the parties;
(9) Both parties shall provide the minors with clothes every quarter with the defendant contributing Kes 15,000.00 per quarter; and
(10) The entertainment needs of the minors shall be shared equally.
2. The appellant, being aggrieved with the said decision, filed the appeal now before the Court. The appeal has 5 grounds, to wit that:-
1. The learned trial magistrate erred in law and in fact in failing to appreciate that parental responsibility as provided for in the Children''s Act 2022, and in the Constitution of Kenya at Article 53(1)(e) of the Constitution of Kenya is a shared responsibility between the both the father and the mother of a child;
2. The learned magistrate erred in law and fact by issuing orders that suggests that parental responsibility is solely and largely the appellant''s duty;
3. The learned magistrate erred in law and fact in failing to consider the evidence adduced before court in its entirety and issuing orders for maintenance of Kes.30,000 per month and clothing of 15, 000/- on quarterly basis which amount is excessive and unsustainable by the appellant;
4. The learned magistrate erred in law and fact by giving orders in favor of respondent''s children to the detriment of the other children of the appellant who are undergoing basic education and in need of care and attention too; and
5. The trial court erred in law and in fact in that it''s said judgement was against the weight of the law, evidence and justice.
3. The Appellant proposes that the Court issue the following orders:-
a. A declaration that both the appellant and the respondent have equal parental responsibility for the minors DHILFA JUMA NGOZI, SUHAILA JUMAA NGOZI and TAUFIQ JUMAA NGOZI;
b. Both the appellant and the respondent to have joint legal custody of the minors;
c. Declaration that the appellant and respondent to have equal obligation towards the maintenance and education of the child as per the fees structure;
d. That the appellant to cater for medical expenses and other education related expenses and the respondent to cater for shelter, food and clothing;
e. Costs of the appeal; and
f. Any other relief and /or orders that this honorable court may deem fit to grant.
4. Since the prayers a and b of the appeal were granted by the trial magistrate it would seem to me that what us in contention is what the appellant sees as “equal obligation towards the maintenance and education of the child as per the fees structure,” and the apportionment of obligation to settle medical expenses, education-related costs, shelter, food and clothing. I must point out that the Memorandum of Appeal was subsequently amended by addition of 5 new grounds and the amendment of the prayers.
5. On 29th October 2024, this Court allowed the appellant to file an Amended Memorandum of Appeal. The Court did so on the basis that it would be in the interest of justice to allow the same. The appellant filed an Amended Memorandum of Appeal, vide which he raised 5 additional grounds of appeal. These are numbered as grounds numbers 6 to 10 of the Amended Memorandum of Appeal. There are that:-
6 The trial court erred in law and in fact by failing to find that the court had no jurisdiction to deal with issues when the minors are in Tanzania;
7 The trial court erred in law and in fact by failing to direct the respondent to bring the minors within the jurisdiction of the court first before dealing with any other issues regarding the minors;
8 The trial court erred in law and in fact by failing to find that the respondent had an obligation to work and provide for the minors;
9 The trial court erred in law and in fact by failing to find that thy minors had the right to see their father the appellant herein;
10 The trial court erred in law and in fact by failing to find the affairs of the minor cannot be ascertained in Tanzania which is outside the jurisdiction of the court.
6. The appellant therefore prayed for the following orders:-
1. That the appellant and the respondent to share equally the cost for maintenance of the minor and which entails the costs of education, medical, food, clothing, and shelter;
2. The respondent to release the minors during the holidays and the weekends to enable the appellant access rights;
3. Each party to bear their own costs of the appeal; and
4. Any other relief and or orders that this honourable Court may deem fit to grant.
7. The appellant filed a Record of Appeal. The respondent, through her advocates MPL Advocates LLP, filed a Supplementary Record of Appeal dated 20th February 2025, vide which they annexed various documents which had not been annexed by the appellant. The Supplementary Record of Appeal was filed with the leave of the Court.
8. I must mention that during the pendency of this matter, 2 applications were filed. The one dated 20th January 2025 for the production of the children was compromised on 3rd March 2025. The subsequent application dated 21st May 2025 was allowed on condition that the appellant pays Kes 15,000.00 to the respondent on or before 5th June 2025, failing which execution would issue.
9. The Court directed the parties to file written submissions and the appeal was subsequently canvassed by way of written submissions. Both parties complied with the said direction. I shall give a precis of each party’s submissions below.
10. The submissions of the Appellant are dated 14th April 2025. Vide the aid submissions, the appellant’s counsel, Mutisya Mwanzia & Ondeng Advocates, submitted that the appellant and the respondent were married on 16th July 2015 and were blessed with issues born in 2016, 2017, and 2019. The parties cohabited as a married couple until 2021, which they separated. Counsel for the appellant urged that the Respondent blocked communication between the parties and was using the legal process to punish the appellant.
11. In arguing the appeal, the counsel for the appellant, Mr Chege, condensed the ten grounds of appeal into three, which he then argued subsequently in the written submissions.
12. Regarding grounds 1 to 4 of the appeal, it was urged that Article 53(1) (e) of the Constitution created an equal responsibility for both parents to maintain their children. Counsel also relied on section 32 of the Children Act. It was contended that the obligation the Court levied on the Appellant was onerous as he had to pay school fees, maintenance of Kes.30, 000/- monthly, and Kes.15,000/-, quarterly for clothes and to provide medical cover for the children. It was further averred that the respondent changed the school the children were attending without consulting him. Lastly, it was submitted that in arriving at figures payable as school fees, the Court below did not properly address itself to the amounts payable and made arithmetical errors.
13. The Appellant’s counsel urged that the Appellant had another family and earned a net salary of Kes 37,010.00, which was insufficient to meet the Obligations imposed on him by the Court. Counsel relied on the decision of A Ndungu, J in HWN -vs- GKC [2018] eKLR, where the court observed that:-
“Orders of maintenance, like all other orders of court, should not be given in vain. Such orders must pass the test of practical enforcement. It behoves on the court to call for and analyze with circumspection the earnings of the parents on the one hand and the needs of the children on the other. This is especially important in a case such as this one where there is an indication that the Applicant has another family.”
14. The appellant also relied on the case of JCW v LWK [2024] KEHC 8583 (KLR), wherein Chemitei, J cited the case of EMM Vs MOO [2016]eKLR, in which the Court observed that:-
“…Although parents may not have equal financial ability for the Court to demand equal contribution, one must at least exhibit some sense of seriousness in making some contribution as a sign of good will that he or she is not geared towards overburdening the other parent for the sole purpose of punishing him or her using the best interests of a child principle or as a ground to settle scores out of marital differences.”
15. The court did not see submissions in respect of ground 5.
16. The appellant submitted in regard to grounds 6 to 10 of the appeal that the Court was required to inquire into the best interest of the Children under section 8 of the Children Act (which Section gives effect to Article 53(2) of the Constitution.
17. Counsel relied on the case of MAA v ABS [2018] KEHC 8340 (KLR) where Thande, J held that:-
“32. What is stated in Section 4 (3)(b) of the Act is the paramountcy principle which is vital in all matters concerning children and must be given prominence. While considering this matter, this Court was alert to the welfare of the child herein who is of tender years. The matter is not about the Appellant and the Respondent and their interests are secondary to those of the child. The foregoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein.”
18. It was urged that the children, who are all of tender years, were in Tanzania and that it was necessary for them to be brought to Kenya so that the Court could have jurisdiction.
19. The appellant thus urged the Court to allow the appeal as the learned magistrate ignored the evidence of the appellant and gave him the full responsibilities alone.
20. The submissions of the respondent are dated 21st April 2025. The respondent’s counsel, Mr Mureithi, urged that this Court should dismiss the appeal as it was “without merit, unfounded on facts and law, and is an abuse of the Court process.”
21. It was conceded that both parties got married in Tanga, Tanzania, on 16th July 2015 and that they have 3 children together. The counsel for the respondent urged that the appellant was a man of means and that he was employed by the Kenya Ports Authority as Grade HMA4 Harbour Crane Operator and that his basic pay was Kes.116,460.00 and that his gross salary was Kes.369,000.00 as per the December 2024 pay ship which was exhibited in page 184 of the Supplementary Record of Appeal dated 20th February 2025.
22. According to the respondent, there were 3 issues for determination by the Court. These are:-
1. What was the duty of the first appellate court?
2. Whether the instant appeal is meritorious; and
3. Which party should bear the costs of the appeal?
23. Counsel submitted that this being the first appeal, the Court was called upon to re-evaluate, reassess, and re-analyze the record and to determine whether the conclusion reached by the trial Court can stand, and to give reasons either way. In support of the said thesis, counsel relied on the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR) where the Court stated as follows:-
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:-
“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
24. Mr. Mureithi submitted that the Court was being called upon to substitute specific enforceable orders with general prayers that would lead to uncertainty, be unenforceable, and impossible to implement. Issuance of such orders, it was urged, would not be in the best interest of the children.
25. It was contended that the appellant had a good salary and that he earned a gross pay of Kes.360,000.00 per month. Mr Mureithi urged that equal responsibility did not mean that both parties had to contribute a similar amount towards the upkeep of the children.
26. In support of the said contention, counsel relied on the case of G. O. & 2 others (Suing thru’ their mother and next friend) E. M. M. v M. O. O. [2016] KEHC 2325 (KLR), where Meoli, J, stated that:-
“15. 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.”
27. It was urged that while the Appellant sought the aid of the Court, he had approached the Court with unclean hands and was therefore undeserving of equitable relief.
28. On costs, counsel submitted that costs should follow the event. Reliance was placed on the decision of the Court in DGM v EWG [2021] KEHC 2940 (KLR), where C Kariuki, J, awarded costs in a matter before the Family Court. Mr Mureithi, therefore, prayed that this Court should award his client the costs of the appeal.
29. This being a first appeal, this court must re-evaluate and reassess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
30. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case, the learned Judges of Appeal stated 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.”
31. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court 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. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR), Mativo, J, as he then was, stated as follows regarding the duty of the first appellate court:-
“A first appellate court is the final court of fact ordinarily, and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard on both questions of law as also on facts, and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.”
33. This is an appeal against the decision of the children’s Court. This Court must, in addition to the considerations that have been set out above, also take into account the paramountcy clause of the Constitution Act.
34. Article 53(2) of the Constitution provides that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
35. Section 8 of the Children Act, 2022, 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:-
(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.
(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.
(4) The Cabinet Secretary shall issue guidelines to give effect to this section.”
36. In addition, I must also consider what section 32(1) of the Children Act, 2022, which provides that:-
“(1) Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility, whether or not the child is born within or outside wedlock.”
37. I have perused the proceedings and the judgment of the Court below. I note that the said Court apportioned the responsibilities to the parties, and that the mother and the father were each assigned specific duties. The greater financial burden appears to have been placed on the appellant, who was required to pay school fees as per the “fee structure where the minors are currently schooling,” to pay Kes.30,000/- towards the upkeep of the three children, provide a medical cover for them and Kes 15,000/- per quarter for clothes. It is urged that in doing so, the Court placed an unduly onerous obligation on the appellant. Is that the case?
38. This Court notes that while the respondent does not appear to be in gainful employment, the appellant, on the other hand, is in gainful employment with Kenya Ports Authority and earns a gross pay of Kes.361,132.18. Although the net pay is given as Kes.37,010/-, the balance appears to have been reduced to a great extent by the salary advances of Kes32,000/- and Kes.77,000/- that he took. Taking into account his salary advances, it would appear to me that the Appellant had a net pay of Kes.146,000.00, which amount could not be considered a pittance.
39. The Appellant prays that the Court order the parties to maintain the children equally. With respect, I disagree. “Equally”, as propounded in our law, takes into consideration several considerations, including which parent has custody of the minors. It is conceded that the children are of tender years and that they are with the mother.
40. Further, I must take into account the fact that both parents don’t have the same earning power. In arriving at this conclusion, I am guided by the decision of Meoli, J, in G. O. & 2 others (Suing thru’ their mother and next friend) E. M. M. v M. O. O. [2016] KEHC 2325 (KLR), where the need for equity when reckoning contribution was considered.
41. Although the children are in Tanzania, I do not see their presence there as an impediment to this Court’s jurisdiction nor a reason for me to shirk my duty to adjudicate the matter. In any case, since the appellant seeks specific prayers against the respondent, it must be taken that the appellant concedes the jurisdiction of this court and cannot approbate and reprobate jurisdiction at the same time.
42. Having considered the matter at length, I cannot fault the trial Court. The decision of the trial magistrate was measured. He took into account all the relevant facts and made a decision that I am unable to fault.
43. The upshot of the foregoing is that I find no merit in the appeal and dismiss the same. I uphold the decision of the Court below.
44. Regarding costs, I order that each party bear his or her own costs of the appeal. Noting the nature of the matter, awarding costs will not promote cohesion and reconciliation between parties who, regardless of the situation, must bring up the three children together.
45. It is so ordered.
Dated and signed at Mombasa, this 4th day of September 2025. Delivered virtually through Microsoft TEAMS.
'
(1) That both parties have equal parental responsibility for the minors;
(2) Both parties have joint legal custody of the minors;
(3) The plaintiff shall have physical actual custody and control of the minors;
(4) The defendant shall have unlimited access to the minor. The same shall include half the school holidays. The travel cost shall be borne by the defendant.
(5) The plaintiff shall provide shelter and utilities to the minors;
(6) The defendant shall pay school fees and related expenses as per the fees structure where the minors are currently schooling;
(7) The defendant shall contribute a monthly upkeep of Kes.30,000.00 towards the food for the minors, and the same shall be paid to the plaintiff on or before the 5th day of each month. The same is due from July 2024;
(8) The defendant shall provide the minors with a medical cover to be agreed upon by the parties;
(9) Both parties shall provide the minors with clothes every quarter with the defendant contributing Kes 15,000.00 per quarter; and
(10) The entertainment needs of the minors shall be shared equally.
2. The appellant, being aggrieved with the said decision, filed the appeal now before the Court. The appeal has 5 grounds, to wit that:-
1. The learned trial magistrate erred in law and in fact in failing to appreciate that parental responsibility as provided for in the Children''s Act 2022, and in the Constitution of Kenya at Article 53(1)(e) of the Constitution of Kenya is a shared responsibility between the both the father and the mother of a child;
2. The learned magistrate erred in law and fact by issuing orders that suggests that parental responsibility is solely and largely the appellant''s duty;
3. The learned magistrate erred in law and fact in failing to consider the evidence adduced before court in its entirety and issuing orders for maintenance of Kes.30,000 per month and clothing of 15, 000/- on quarterly basis which amount is excessive and unsustainable by the appellant;
4. The learned magistrate erred in law and fact by giving orders in favor of respondent''s children to the detriment of the other children of the appellant who are undergoing basic education and in need of care and attention too; and
5. The trial court erred in law and in fact in that it''s said judgement was against the weight of the law, evidence and justice.
3. The Appellant proposes that the Court issue the following orders:-
a. A declaration that both the appellant and the respondent have equal parental responsibility for the minors DHILFA JUMA NGOZI, SUHAILA JUMAA NGOZI and TAUFIQ JUMAA NGOZI;
b. Both the appellant and the respondent to have joint legal custody of the minors;
c. Declaration that the appellant and respondent to have equal obligation towards the maintenance and education of the child as per the fees structure;
d. That the appellant to cater for medical expenses and other education related expenses and the respondent to cater for shelter, food and clothing;
e. Costs of the appeal; and
f. Any other relief and /or orders that this honorable court may deem fit to grant.
4. Since the prayers a and b of the appeal were granted by the trial magistrate it would seem to me that what us in contention is what the appellant sees as “equal obligation towards the maintenance and education of the child as per the fees structure,” and the apportionment of obligation to settle medical expenses, education-related costs, shelter, food and clothing. I must point out that the Memorandum of Appeal was subsequently amended by addition of 5 new grounds and the amendment of the prayers.
5. On 29th October 2024, this Court allowed the appellant to file an Amended Memorandum of Appeal. The Court did so on the basis that it would be in the interest of justice to allow the same. The appellant filed an Amended Memorandum of Appeal, vide which he raised 5 additional grounds of appeal. These are numbered as grounds numbers 6 to 10 of the Amended Memorandum of Appeal. There are that:-
6 The trial court erred in law and in fact by failing to find that the court had no jurisdiction to deal with issues when the minors are in Tanzania;
7 The trial court erred in law and in fact by failing to direct the respondent to bring the minors within the jurisdiction of the court first before dealing with any other issues regarding the minors;
8 The trial court erred in law and in fact by failing to find that the respondent had an obligation to work and provide for the minors;
9 The trial court erred in law and in fact by failing to find that thy minors had the right to see their father the appellant herein;
10 The trial court erred in law and in fact by failing to find the affairs of the minor cannot be ascertained in Tanzania which is outside the jurisdiction of the court.
6. The appellant therefore prayed for the following orders:-
1. That the appellant and the respondent to share equally the cost for maintenance of the minor and which entails the costs of education, medical, food, clothing, and shelter;
2. The respondent to release the minors during the holidays and the weekends to enable the appellant access rights;
3. Each party to bear their own costs of the appeal; and
4. Any other relief and or orders that this honourable Court may deem fit to grant.
7. The appellant filed a Record of Appeal. The respondent, through her advocates MPL Advocates LLP, filed a Supplementary Record of Appeal dated 20th February 2025, vide which they annexed various documents which had not been annexed by the appellant. The Supplementary Record of Appeal was filed with the leave of the Court.
8. I must mention that during the pendency of this matter, 2 applications were filed. The one dated 20th January 2025 for the production of the children was compromised on 3rd March 2025. The subsequent application dated 21st May 2025 was allowed on condition that the appellant pays Kes 15,000.00 to the respondent on or before 5th June 2025, failing which execution would issue.
9. The Court directed the parties to file written submissions and the appeal was subsequently canvassed by way of written submissions. Both parties complied with the said direction. I shall give a precis of each party’s submissions below.
10. The submissions of the Appellant are dated 14th April 2025. Vide the aid submissions, the appellant’s counsel, Mutisya Mwanzia & Ondeng Advocates, submitted that the appellant and the respondent were married on 16th July 2015 and were blessed with issues born in 2016, 2017, and 2019. The parties cohabited as a married couple until 2021, which they separated. Counsel for the appellant urged that the Respondent blocked communication between the parties and was using the legal process to punish the appellant.
11. In arguing the appeal, the counsel for the appellant, Mr Chege, condensed the ten grounds of appeal into three, which he then argued subsequently in the written submissions.
12. Regarding grounds 1 to 4 of the appeal, it was urged that Article 53(1) (e) of the Constitution created an equal responsibility for both parents to maintain their children. Counsel also relied on section 32 of the Children Act. It was contended that the obligation the Court levied on the Appellant was onerous as he had to pay school fees, maintenance of Kes.30, 000/- monthly, and Kes.15,000/-, quarterly for clothes and to provide medical cover for the children. It was further averred that the respondent changed the school the children were attending without consulting him. Lastly, it was submitted that in arriving at figures payable as school fees, the Court below did not properly address itself to the amounts payable and made arithmetical errors.
13. The Appellant’s counsel urged that the Appellant had another family and earned a net salary of Kes 37,010.00, which was insufficient to meet the Obligations imposed on him by the Court. Counsel relied on the decision of A Ndungu, J in HWN -vs- GKC [2018] eKLR, where the court observed that:-
“Orders of maintenance, like all other orders of court, should not be given in vain. Such orders must pass the test of practical enforcement. It behoves on the court to call for and analyze with circumspection the earnings of the parents on the one hand and the needs of the children on the other. This is especially important in a case such as this one where there is an indication that the Applicant has another family.”
14. The appellant also relied on the case of JCW v LWK [2024] KEHC 8583 (KLR), wherein Chemitei, J cited the case of EMM Vs MOO [2016]eKLR, in which the Court observed that:-
“…Although parents may not have equal financial ability for the Court to demand equal contribution, one must at least exhibit some sense of seriousness in making some contribution as a sign of good will that he or she is not geared towards overburdening the other parent for the sole purpose of punishing him or her using the best interests of a child principle or as a ground to settle scores out of marital differences.”
15. The court did not see submissions in respect of ground 5.
16. The appellant submitted in regard to grounds 6 to 10 of the appeal that the Court was required to inquire into the best interest of the Children under section 8 of the Children Act (which Section gives effect to Article 53(2) of the Constitution.
17. Counsel relied on the case of MAA v ABS [2018] KEHC 8340 (KLR) where Thande, J held that:-
“32. What is stated in Section 4 (3)(b) of the Act is the paramountcy principle which is vital in all matters concerning children and must be given prominence. While considering this matter, this Court was alert to the welfare of the child herein who is of tender years. The matter is not about the Appellant and the Respondent and their interests are secondary to those of the child. The foregoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter alia safeguard, conserve and promote the rights and welfare of the child herein.”
18. It was urged that the children, who are all of tender years, were in Tanzania and that it was necessary for them to be brought to Kenya so that the Court could have jurisdiction.
19. The appellant thus urged the Court to allow the appeal as the learned magistrate ignored the evidence of the appellant and gave him the full responsibilities alone.
20. The submissions of the respondent are dated 21st April 2025. The respondent’s counsel, Mr Mureithi, urged that this Court should dismiss the appeal as it was “without merit, unfounded on facts and law, and is an abuse of the Court process.”
21. It was conceded that both parties got married in Tanga, Tanzania, on 16th July 2015 and that they have 3 children together. The counsel for the respondent urged that the appellant was a man of means and that he was employed by the Kenya Ports Authority as Grade HMA4 Harbour Crane Operator and that his basic pay was Kes.116,460.00 and that his gross salary was Kes.369,000.00 as per the December 2024 pay ship which was exhibited in page 184 of the Supplementary Record of Appeal dated 20th February 2025.
22. According to the respondent, there were 3 issues for determination by the Court. These are:-
1. What was the duty of the first appellate court?
2. Whether the instant appeal is meritorious; and
3. Which party should bear the costs of the appeal?
23. Counsel submitted that this being the first appeal, the Court was called upon to re-evaluate, reassess, and re-analyze the record and to determine whether the conclusion reached by the trial Court can stand, and to give reasons either way. In support of the said thesis, counsel relied on the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR) where the Court stated as follows:-
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:-
“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
24. Mr. Mureithi submitted that the Court was being called upon to substitute specific enforceable orders with general prayers that would lead to uncertainty, be unenforceable, and impossible to implement. Issuance of such orders, it was urged, would not be in the best interest of the children.
25. It was contended that the appellant had a good salary and that he earned a gross pay of Kes.360,000.00 per month. Mr Mureithi urged that equal responsibility did not mean that both parties had to contribute a similar amount towards the upkeep of the children.
26. In support of the said contention, counsel relied on the case of G. O. & 2 others (Suing thru’ their mother and next friend) E. M. M. v M. O. O. [2016] KEHC 2325 (KLR), where Meoli, J, stated that:-
“15. 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.”
27. It was urged that while the Appellant sought the aid of the Court, he had approached the Court with unclean hands and was therefore undeserving of equitable relief.
28. On costs, counsel submitted that costs should follow the event. Reliance was placed on the decision of the Court in DGM v EWG [2021] KEHC 2940 (KLR), where C Kariuki, J, awarded costs in a matter before the Family Court. Mr Mureithi, therefore, prayed that this Court should award his client the costs of the appeal.
29. This being a first appeal, this court must re-evaluate and reassess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
30. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case, the learned Judges of Appeal stated 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.”
31. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court 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. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR), Mativo, J, as he then was, stated as follows regarding the duty of the first appellate court:-
“A first appellate court is the final court of fact ordinarily, and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard on both questions of law as also on facts, and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.”
33. This is an appeal against the decision of the children’s Court. This Court must, in addition to the considerations that have been set out above, also take into account the paramountcy clause of the Constitution Act.
34. Article 53(2) of the Constitution provides that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
35. Section 8 of the Children Act, 2022, 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:-
(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.
(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.
(4) The Cabinet Secretary shall issue guidelines to give effect to this section.”
36. In addition, I must also consider what section 32(1) of the Children Act, 2022, which provides that:-
“(1) Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility, whether or not the child is born within or outside wedlock.”
37. I have perused the proceedings and the judgment of the Court below. I note that the said Court apportioned the responsibilities to the parties, and that the mother and the father were each assigned specific duties. The greater financial burden appears to have been placed on the appellant, who was required to pay school fees as per the “fee structure where the minors are currently schooling,” to pay Kes.30,000/- towards the upkeep of the three children, provide a medical cover for them and Kes 15,000/- per quarter for clothes. It is urged that in doing so, the Court placed an unduly onerous obligation on the appellant. Is that the case?
38. This Court notes that while the respondent does not appear to be in gainful employment, the appellant, on the other hand, is in gainful employment with Kenya Ports Authority and earns a gross pay of Kes.361,132.18. Although the net pay is given as Kes.37,010/-, the balance appears to have been reduced to a great extent by the salary advances of Kes32,000/- and Kes.77,000/- that he took. Taking into account his salary advances, it would appear to me that the Appellant had a net pay of Kes.146,000.00, which amount could not be considered a pittance.
39. The Appellant prays that the Court order the parties to maintain the children equally. With respect, I disagree. “Equally”, as propounded in our law, takes into consideration several considerations, including which parent has custody of the minors. It is conceded that the children are of tender years and that they are with the mother.
40. Further, I must take into account the fact that both parents don’t have the same earning power. In arriving at this conclusion, I am guided by the decision of Meoli, J, in G. O. & 2 others (Suing thru’ their mother and next friend) E. M. M. v M. O. O. [2016] KEHC 2325 (KLR), where the need for equity when reckoning contribution was considered.
41. Although the children are in Tanzania, I do not see their presence there as an impediment to this Court’s jurisdiction nor a reason for me to shirk my duty to adjudicate the matter. In any case, since the appellant seeks specific prayers against the respondent, it must be taken that the appellant concedes the jurisdiction of this court and cannot approbate and reprobate jurisdiction at the same time.
42. Having considered the matter at length, I cannot fault the trial Court. The decision of the trial magistrate was measured. He took into account all the relevant facts and made a decision that I am unable to fault.
43. The upshot of the foregoing is that I find no merit in the appeal and dismiss the same. I uphold the decision of the Court below.
44. Regarding costs, I order that each party bear his or her own costs of the appeal. Noting the nature of the matter, awarding costs will not promote cohesion and reconciliation between parties who, regardless of the situation, must bring up the three children together.
45. It is so ordered.
Dated and signed at Mombasa, this 4th day of September 2025. Delivered virtually through Microsoft TEAMS.
'