(Being an appeal from the Judgment and Orders of Hon. R. Gitau, Senior Resident Magistrate, delivered on 2nd July 2024 in Mavoko Children’s Case No. E018 of 2023)
A. BACKGROUND
1. The Appellant and the Respondent are the biological parents of Jabari Andre Ogare, a minor born on 22nd February 2017. The parties were formerly married but subsequently separated and divorced. Following their separation, the minor remained in the Respondent’s actual care and custody.
2. By a plaint dated 6th March 2023 and subsequently amended on 1st December 2023, the Appellant instituted proceedings before the Children’s Court at Mavoko. He principally sought joint legal and actual custody, access to the minor and an opportunity to contribute towards the minor’s maintenance on terms that he considered proportionate and affordable.
3. The Respondent filed a defence dated 20th November 2023. She sought actual custody of the minor, structured access in favour of the Appellant and an order compelling the Appellant to contribute towards the minor’s maintenance.
4. During the proceedings, the trial court issued interim orders on 1st August 2023 granting the Appellant access to the minor and requiring him to contribute Kshs.45,000 per month towards the minor’s maintenance and educational needs. The Appellant applied for review of that order. In its ruling dated 14th November 2023, the trial court declined to vary the interim financial provision, holding that the issues raised required determination at the substantive hearing.
5. At the trial, each party testified. The trial court also considered affidavits of means, documentary evidence, reports by a children’s officer and a psychologist, and the minor’s views obtained through an in-camera interview.
6. In its judgment delivered on 2nd July 2024, the trial court ordered that:
a. the parties have joint legal custody of the minor;
b. the Respondent have actual or physical custody;
c. the Appellant have access on alternate weekends, half of the school holidays, mid-term breaks and alternate special occasions;
d. the minor remain at Viraj International Academy;
e. the Appellant pay Kshs.35,000 per month towards the minor’s upkeep;
f. the Kshs.35,000 be attached directly from the Appellant’s salary;
g. the minor continue receiving psychosocial support at the parties’ equal cost; and
h. each party bear their own costs.
7. Aggrieved by the judgment, the Appellant filed a Memorandum of Appeal dated 5th July 2024. Its grounds, reproduced hereunder are:
1. THAT the learned Magistrate erred in law and fact by taking into account irrelevant considerations, failing to consider relevant matters, and consequently arriving at erroneous findings.
2. THAT the learned Magistrate misled and/or induced the Appellant, who was acting in person, to withdraw his interlocutory appeal on the understanding that the matters raised therein would be fairly considered in the final judgment, thereby occasioning him an unfair hearing.
3. THAT the learned Magistrate erred in law and procedure by prematurely ordering the attachment of the Appellant’s salary without first giving him an opportunity to comply with the final maintenance order or to be heard on the proposed mode of enforcement.
4. THAT the learned Magistrate erred in law by failing to give sufficient reasons for her determination of all the material issues raised by the Appellant.
5. THAT the learned Magistrate erred in law and fact by disregarding and/or failing to give proper consideration to the Appellant’s pleadings, evidence and written submissions, thereby occasioning an injustice.
6. THAT the learned Magistrate erred in law and fact by making orders that were not in the best interests of the minor.
7. THAT the learned Magistrate erred in law and fact by ordering the Appellant to pay KShs.35,000 per month, an amount that is excessive, punitive and inconsistent with the best interests of the minor, in that;
a. the amount creates a deficit in the Appellant’s disclosed means;
b. the order is financially unsustainable;
c. the Appellant is unable to comply with the order without prejudicing his other lawful obligations; and
d. the order exposes the Appellant to the risk of being cited for breach and/or contempt.
8. THAT the learned Magistrate’s determination on maintenance was irrational, manifestly unfair and based on an improper exercise of judicial discretion, in that;
a. the amount awarded exceeded the reasonable and proved needs of the minor;
b. the amount exceeded what had previously been proposed by the Respondent; and
c. the amount exceeded the standard of upbringing previously agreed upon and/or contemplated by the parties.
9. THAT the learned Magistrate erred in law and fact by failing to consider that the maintenance award in favour of one child would prejudice and discriminate against the Appellant’s other children, who are equally entitled to his parental care and financial support.
10. THAT the learned Magistrate failed to consider the Appellant’s increased financial responsibility arising from his elder daughter’s change of school and the resulting additional educational expenses.
11. THAT the learned Magistrate erred in law and fact by failing to give proper consideration to the Appellant’s changed circumstances and his responsibility to maintain another minor child, including the additional costs of;
a. securing suitable housing;
b. employing a house help;
c. providing medical care for the child; and
d. meeting the child’s other basic needs.
12. THAT the learned Magistrate erred in law and fact by failing to consider that;
a. the Respondent unilaterally transferred the minor to a more expensive international school without consulting or obtaining the consent of the Appellant;
b. the Respondent earns substantially more than the Appellant;
c. the maintenance order unfairly places a disproportionate financial burden upon the Appellant; and
d. the Appellant should not be compelled to meet expenses attributable to the Respondent’s wider household, including the full cost of a house help serving that household.
13. THAT in all the circumstances, the learned Magistrate failed to properly balance the parties’ respective financial means, obligations and contributions and thereby arrived at orders that were neither proportionate nor consistent with the best interests of the minor.
8. The Appellant asks this Court to set aside the order attaching his salary, review the maintenance order downwards and grant such further relief as it considers appropriate.
9. In his submissions, the Appellant contends that Kshs.35,000 per month is excessive compared with his net salary of approximately Kshs.177,000. He proposes a monthly contribution of between Kshs.12,500 and Kshs.16,000. He argues that the existing order prejudices his other children, does not sufficiently account for the Respondent’s higher income and wrongly requires him to meet expenses arising from the Respondent’s household.
10. The Appellant further challenges the minor’s continued enrolment at Viraj International Academy. He maintains that the Respondent unilaterally transferred the minor to a more expensive international school and that a Kenyan curriculum school charging approximately Kshs.50,000 per term would be more affordable and sustainable.
11. On salary attachment, the Appellant submits that the order was made prematurely, before he had an opportunity to comply with the final maintenance order. He also contends that the attachment may adversely affect his employment and ability to obtain credit facilities.
12. The Respondent opposes the appeal. She first raises a preliminary objection that the record does not contain a certified decree, contrary to Order 42 of the Civil Procedure Rules. She relies on Fredrick Mwangi Njuguna v East African Growers Ltd [2015] KEHC 5151 (KLR) and argues that the omission renders the appeal fatally defective.
13. On the merits, the Respondent relies upon SKN v GMM [2024] KEHC 2552 (KLR). She submits that the trial court considered the Appellant’s affidavit of means, the parties’ evidence and the needs of the minor before reducing the interim amount from Kshs.45,000 to Kshs.35,000 per month. She maintains that the Appellant’s proposed payment of Kshs.12,500 to Kshs.16,000 is inadequate.
14. The Respondent further submits that direct attachment was justified by the Appellant’s history of delayed or irregular payments and would ensure continuity in the minor’s support. She asks the Court to dismiss the appeal and uphold the trial court’s judgment.
B. ISSUES FOR DETERMINATION
15. Having considered the Memorandum of Appeal, record, evidence, submissions and authorities, the following issues arise:
a. whether the appeal is incompetent for omission of a certified decree;
b. whether the Appellant was denied a fair hearing or the trial magistrate demonstrated bias;
c. whether the trial court erred in fixing the Appellant’s contribution at Kshs.35,000 per month;
d. whether the trial court erred in ordering that the minor remain at Viraj International Academy;
e. whether the direct attachment of the Appellant’s salary was lawful and procedurally proper; and
f. what orders should issue.
C. DUTY OF THIS COURT
16. Under Section 99 of the Children Act, 2022, an appeal from the Children’s Court lies to the High Court on matters of fact and law.
17. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and reach its own independent conclusions, while bearing in mind that it did not see or hear the witnesses. That duty was stated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and has repeatedly been affirmed by the Court of Appeal, including in Dennis v SOO [2023] KECA 881 (KLR).
18. Nevertheless, the Court should not casually displace the trial court’s factual findings or exercise of discretion. In Ephantus Mwangi & another v Duncan Mwangi Wambugu [1984] KECA 54 (KLR), the Court of Appeal held that an appellate court will not normally interfere with findings of fact unless they were based on no evidence, resulted from a misapprehension of the evidence, or were reached through the application of a wrong principle.
19. Similarly, where the challenged order involves judicial discretion, appellate interference is warranted where the lower court misdirected itself, considered irrelevant matters, omitted relevant matters, or reached a plainly wrong result. See NBR v JO [2017] KECA 585 (KLR).
20. Above all, Article 53(2) of the Constitution and section 8 of the Children Act require the child’s best interests to be the paramount consideration. The appeal is not primarily a contest between the parents. Every order must ultimately promote the minor’s welfare, stability and development.
D. ANALYSIS AND DETERMINATION
(i) Whether omission of the certified decree renders the appeal incompetent
21. The Respondent contends that the appeal is fatally defective because the Record of Appeal contains the judgment but not the certified decree. She relies on Order 42 rules 2 and 13(4) of the Civil Procedure Rules and Fredrick Mwangi Njuguna v East African Growers Ltd [2015] KEHC 5151 (KLR).
22. A decree is an important appellate document because it is the formal expression of the decision challenged. Nevertheless, the Court of Appeal has clarified that its omission does not invariably require an appeal to be struck out where the defect is curable, the judgment is available, the orders appealed against are ascertainable and the opposing party has suffered no prejudice. See Kenya Commercial Finance Company Ltd v Richard Akwesera Onditi [2010] KECA 134 (KLR) and Teachers Service Commission v Kamau & 19 others [2023] KECA 990 (KLR).
23. The entire judgment delivered on 2nd July 2024 is contained in the record. The orders challenged are clear, and the Respondent has fully addressed the appeal on its merits. No uncertainty or prejudice has been demonstrated.
24. This is also a children’s matter. Section 95(3) of the Children Act, 2022 recognises that delay in determining a question concerning a child is likely to prejudice the child’s welfare. Striking out the appeal on a curable omission would merely prolong the parties’ conflict without advancing the minor’s interests.
25. The preliminary objection is therefore rejected. The Appellant shall, however, file a supplementary record containing the certified decree within thirty days.
(ii) Alleged bias and denial of a fair hearing
26. The Appellant alleges that the trial magistrate manipulated him into withdrawing an interlocutory appeal on the understanding that his concerns would be favourably determined in the final judgment. He also used expressions suggesting corruption and prejudice.
27. The allegation is serious. The applicable test is whether a fair-minded and informed observer, having considered the relevant facts, would reasonably apprehend that the judicial officer was not impartial. An adverse ruling, without more, does not establish bias.
28. The record shows that the Appellant was permitted to file an amended plaint, witness statements, documents, affidavits of means, applications and written submissions. He testified and cross-examined the Respondent. The trial court also considered the children officer’s reports, the psychologist’s reports and the minor’s views.
29. The Appellant obtained joint legal custody, structured access and a reduction of the interim monthly obligation from KShs.45,000 to KShs.35,000. Those outcomes do not support the allegation that the court had predetermined the dispute against him.
30. No transcript, affidavit, correspondence or court order has been identified showing that the magistrate promised a favourable judgment or procured withdrawal of the interlocutory appeal through deception. The record instead indicates that the court stated that the maintenance issues would be considered at the full hearing, which they ultimately were.
31. The allegation of bias is therefore not proved. The Appellant was entitled to criticise the reasoning and challenge the orders on appeal, but allegations of corruption against a judicial officer ought not to be made without cogent evidence.
(iii) Principles governing maintenance
32. Article 53(1)(e) of the Constitution provides that every child has the right to parental care and protection, including the equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. Under Article 53(2), the child’s best interests are of paramount importance in every matter concerning the child.
33. Sections 31, 32 and 110 of the Children Act reinforce those obligations. Section 110 specifically provides that it is the joint duty and responsibility of both parents to maintain their child. Sections 113 and 118 empower the court to make financial provision concerning the child’s education, medical care, housing, clothing and other needs.
34. Equal parental responsibility does not invariably mean an identical division of every expense. It means that neither parent may abdicate responsibility and that each must make a real contribution proportionate to his or her means, resources, responsibilities and the child’s reasonable needs. The contribution of the parent with actual custody includes direct expenditure and the daily labour of caring for the child, but actual custody does not excuse that parent from making a financial contribution where he or she has the means.
35. In Stephen Blanchet v Akach Adhiambo Langi [2010] KECA 181 (KLR), the Court of Appeal emphasised that the contributions of both parents must be actual, fair and enforceable rather than merely nominal. In HKN v LNW [2024] KECA 437 (KLR), the Court reaffirmed that parental responsibility is joint and that the child’s best interests remain the controlling consideration.
36. The “best interests” principle does not mean that any amount demanded for a child must automatically be granted. The court must distinguish between:
a. the child’s proved and reasonable needs;
b. the parents’ preferred lifestyle choices;
c. expenses attributable to the wider household; and
d. expenditure which one parent incurred unilaterally without consulting the other.
37. A maintenance order should be adequate but also realistic and sustainable. An order which predictably overwhelms the paying parent, produces chronic default and generates repeated enforcement proceedings may ultimately work against the child’s welfare.
38. The court must equally avoid permitting a parent to escape responsibility by prioritizing discretionary expenditure, consumer loans or personal lifestyle choices above a child’s basic needs. Financial hardship must be proved and scrutinized; it cannot merely be asserted.
(iv) whether the trial court erred in fixing the Appellant’s contribution at Kshs.35,000 per month
The Appellant’s position
39. The Appellant’s evidence was that his net salary was approximately KShs.177,000 per month. He initially disclosed rental income of between KShs.40,000 and KShs.45,000 per month, but later stated that the tenant had vacated. He also disclosed mortgage or house-loan deductions, a vehicle loan, rent for his present residence, household expenses, a house help, an education policy and obligations towards his other children.
40. The Appellant contended that the award of KShs.35,000 per month consumed approximately one-fifth of his net salary and left insufficient resources for his other children. He proposed a contribution of between KShs.12,500 and KShs.16,000 per month, although his amended plaint and earlier evidence had proposed KShs.20,000.
41. His case on the other children cannot be dismissed as irrelevant. The birth certificate produced established another biological child, and it was not disputed that he also had an older daughter. Those children are protected by the same Article 53 of the Constitution. The Court cannot fashion an order which treats the child in this case as having an exclusive or superior claim over the Appellant’s lawful parental resources.
42. However, not every expense relied upon by the Appellant deserves equal weight. The Appellant cannot place mortgage payments, a motor-vehicle loan, tithes, discretionary household expenditure or voluntary financial commitments ahead of the minor’s basic needs. Nor can the Court make provision for hypothetical future children.
43. The Appellant’s responsibility towards a stepchild also does not automatically rank in the same manner as his statutory obligation towards his biological children unless the legal and evidential basis of that responsibility is established. His strongest relevant considerations are therefore his net income, existing biological children, reasonable housing costs and proved essential expenses.
44. The Court must also take into account that the Appellant admitted that he had no documentary evidence of regular support for this minor between 2019 and August 2023. His previous absence from the child’s financial life does not justify an excessive current order, but it weakens the suggestion that the Respondent’s concerns regarding consistency were entirely unfounded.
45. There was also evidence that payments under the interim order were delayed or disputed. The Appellant’s obligation must consequently remain substantial, definite and payable on a fixed date. The proper remedy is not to reduce it to a merely token amount.
The Respondent’s position
46. The Respondent has provided the minor’s actual home and daily care since the parties separated. She has met the costs of food, shelter, clothing, medical care, education and supervision and has had to organise the child’s routine while managing the parties’ difficult co-parenting relationship.
47. Those contributions are significant and cannot be ignored simply because they are not all reflected in cash receipts. The person with actual custody bears an ongoing economic and caregiving burden which the non-custodial parent does not bear to the same extent.
48. The Respondent was therefore entitled to insist that the Appellant make a meaningful and regular contribution. Her opposition to the Appellant’s proposed KShs.12,500 to KShs.16,000 is justified because that amount would inadequately reflect his admitted income, the minor’s ordinary needs and the Respondent’s day-to-day caregiving burden.
49. The Respondent’s case, however, also has limits. Actual custody does not make her financial obligation merely notional. The evidence before the trial court indicated that she had stable employment and materially greater earnings than the Appellant. She was therefore capable of bearing a substantial share of the child’s monetary expenses.
50. Neither may the Appellant be compelled to pay for the Respondent’s wider household. The entire salary and food cost of a house help serving the Respondent, her partner, their other child and the general household cannot be attributed solely to the minor. Only a reasonable proportion connected to the care of the minor may properly form part of his maintenance.
51. The income of the Respondent’s new partner does not replace the parental responsibility of either biological parent. Unless a proper statutory basis is established, the new partner cannot be treated as primarily responsible for the minor’s maintenance. Equally, his presence in the household does not permit the Respondent to attribute the whole household expenditure to the minor and recover it from the Appellant.
Assessment of the appropriate monthly contribution
52. The evidence included a draft parental responsibility arrangement dated 12 June 2023. It was neither signed by both parties nor adopted as an order and therefore did not amount to a binding consent. It nevertheless provides relevant evidence of the parties’ negotiations and their then assessment of the child’s expenditure.
53. That draft identified monthly household and personal expenses of approximately KShs.38,813, including food, clothing, a housekeeper and uncovered medication. It proposed equal sharing of those items, which would have placed the Appellant’s contribution at approximately KShs.19,406 per month before educational expenses.
54. The document also proposed an education contribution ratio of 42% by the Appellant and 58% by the Respondent. The ratio was not binding, but it was consistent with the parties’ comparative means and constitutes a useful evidential benchmark.
55. The trial court fixed the Appellant’s contribution at KShs.35,000 per month. It stated that it had considered his net salary, his other children, the temporary loss of rental income and the Respondent’s circumstances. However, it did not set out a calculation linking KShs.35,000 to the minor’s proved monthly needs or clearly distinguish ordinary upkeep from school fees and the international-school premium.
56. The figure represented approximately 19.8% of the Appellant’s admitted net salary. That percentage is not necessarily excessive when viewed alone. It must, however, be considered alongside his obligation to maintain his other biological children, his reasonable living costs and the Respondent’s greater earning capacity.
57. The Appellant’s affidavit of means disclosed a deficit, but that deficit cannot be accepted without qualification. It included expenditure which could not properly rank ahead of child maintenance, and the loss of rental income may have been temporary. His immovable property and employment also demonstrated a greater financial capacity than his proposed KShs.12,500 to KShs.16,000 suggested.
58. The Respondent, on the other hand, has actual custody and bears the greater practical caregiving burden, but she also has the higher demonstrated income and made the major educational decision without the Appellant’s agreement.
59. Putting both parties in consideration, I find that:
a. the Appellant’s proposed KShs.12,500 to KShs.16,000 is insufficient;
b. the trial court’s KShs.35,000 award did not adequately distinguish the child’s ordinary needs from the premium created by the unilateral choice of an international school;
c. the Appellant’s other biological children are relevant and cannot be treated as an afterthought;
d. the Respondent must make a substantial financial contribution in addition to her caregiving contribution; and
e. the amount ordered must be capable of regular compliance without becoming merely punitive.
60. A monthly contribution of KShs.20,000 towards the minor’s ordinary upkeep is, in my assessment, fair, meaningful and sustainable. It is broadly consistent with the Appellant’s approximate half-share of the ordinary expenses identified during the parties’ negotiations, while recognising that some household costs must be apportioned rather than charged wholly to the child.
61. That amount does not include the Appellant’s contribution towards tuition and essential school requirements, which must be dealt with separately to avoid confusion and duplication.
(v) Choice of school and educational expenses
62. The Appellant complains that the Respondent transferred the minor to Viraj International Academy without his knowledge or consent. He does not dispute that the school provides quality education or that the child has made progress there. His objections relate principally to affordability, the Cambridge curriculum and future sustainability.
63. The Respondent’s position is that she selected the school when she was solely meeting the minor’s needs and the Appellant was absent from his financial and daily upbringing. She contends that the child is settled and that a transfer would disrupt his education.
64. Both positions have merit. The Respondent was faced with the practical responsibility of providing education during the Appellant’s absence. The Court cannot ignore that she paid the fees and maintained continuity when the Appellant was not contributing. The selection was therefore not shown to have been made solely to burden him.
65. Nevertheless, education is a major aspect of parental responsibility. Section 32 of the Children Act places parental responsibility upon both parents on an equal basis. Section 33(2)(i), though framed in the context of parental responsibility agreements, reflects the legislative expectation that decisions concerning a child’s education should be jointly made.
66. Joint legal custody is not an ornamental declaration. It requires consultation on major decisions, including the school, curriculum, non-emergency medical treatment, relocation and travel. A parent with actual custody does not thereby acquire exclusive power to make all important decisions.
67. The Respondent’s unilateral transfer was therefore inconsistent with proper co-parenting. A parent cannot select a substantially more expensive school without consultation and then treat the whole resulting cost as an enforceable obligation against the other parent.
68. At the same time, it would be wrong to order an immediate transfer merely to penalise the Respondent. The child is settled at the school, no complaint has been made about his academic progress, and the trial court found that moving between materially different curricula could disrupt him. Under section 95(2)(b) and (c) of the Children Act, the Court must consider the child’s educational needs and the likely effect of a change in circumstances.
69. In JO v SAO [2016] KECA 55 (KLR), the Court of Appeal emphasised that the child’s best interests must be assessed objectively rather than through the competing preferences of the parents. In LAC & another v MJC [2022] KECA 68 (KLR), the Court similarly stressed the importance of stability and the child’s welfare in determining parental arrangements.
70. The minor should therefore remain at Viraj International Academy for the time being. However, the Respondent must bear the additional cost arising from her unilateral preference for that school over the affordable alternative proved by the Appellant.
71. The Appellant produced evidence of schools offering the Kenyan curriculum at approximately KShs.50,000 per term. Using that as a reasonable benchmark and the parties’ previous proposed ratio of 42% to 58%, the Appellant’s contribution would be KShs.21,000 per school term. The Respondent shall meet the remainder of Viraj International Academy’s tuition fees.
72. This result preserves the child’s educational stability while ensuring that one parent does not unilaterally determine the standard of expenditure and compel the other to fund it irrespective of affordability.
73. Essential books, stationery and uniform are legitimate educational expenses. They shall be shared in the ratio of 42% by the Appellant and 58% by the Respondent upon production of invoices or receipts. Optional trips, clubs, entertainment and extracurricular expenses shall not be imposed upon the other parent without prior consultation and written agreement.
78. Neither parent shall change the minor’s school or curriculum in future without the other’s written consent. If they cannot agree, either may seek directions from the Children’s Court before the change is made. The Court will not permit either parent to “spend first and consult later.”
(vi) Whether the salary attachment was lawful
79. The trial court directed that the KShs.35,000 monthly contribution be attached from the Appellant’s salary. Its reason was that the parties’ toxic relationship made reconciliation of payments difficult and that direct attachment was prudent and convenient.
80. The Respondent submits that attachment was justified because the Appellant had made irregular payments under the interim order and had previously been found in contempt. She contends that direct deduction would protect the child from interruptions in maintenance.
81. The Appellant contends that
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A. BACKGROUND
1. The Appellant and the Respondent are the biological parents of Jabari Andre Ogare, a minor born on 22nd February 2017. The parties were formerly married but subsequently separated and divorced. Following their separation, the minor remained in the Respondent’s actual care and custody.
2. By a plaint dated 6th March 2023 and subsequently amended on 1st December 2023, the Appellant instituted proceedings before the Children’s Court at Mavoko. He principally sought joint legal and actual custody, access to the minor and an opportunity to contribute towards the minor’s maintenance on terms that he considered proportionate and affordable.
3. The Respondent filed a defence dated 20th November 2023. She sought actual custody of the minor, structured access in favour of the Appellant and an order compelling the Appellant to contribute towards the minor’s maintenance.
4. During the proceedings, the trial court issued interim orders on 1st August 2023 granting the Appellant access to the minor and requiring him to contribute Kshs.45,000 per month towards the minor’s maintenance and educational needs. The Appellant applied for review of that order. In its ruling dated 14th November 2023, the trial court declined to vary the interim financial provision, holding that the issues raised required determination at the substantive hearing.
5. At the trial, each party testified. The trial court also considered affidavits of means, documentary evidence, reports by a children’s officer and a psychologist, and the minor’s views obtained through an in-camera interview.
6. In its judgment delivered on 2nd July 2024, the trial court ordered that:
a. the parties have joint legal custody of the minor;
b. the Respondent have actual or physical custody;
c. the Appellant have access on alternate weekends, half of the school holidays, mid-term breaks and alternate special occasions;
d. the minor remain at Viraj International Academy;
e. the Appellant pay Kshs.35,000 per month towards the minor’s upkeep;
f. the Kshs.35,000 be attached directly from the Appellant’s salary;
g. the minor continue receiving psychosocial support at the parties’ equal cost; and
h. each party bear their own costs.
7. Aggrieved by the judgment, the Appellant filed a Memorandum of Appeal dated 5th July 2024. Its grounds, reproduced hereunder are:
1. THAT the learned Magistrate erred in law and fact by taking into account irrelevant considerations, failing to consider relevant matters, and consequently arriving at erroneous findings.
2. THAT the learned Magistrate misled and/or induced the Appellant, who was acting in person, to withdraw his interlocutory appeal on the understanding that the matters raised therein would be fairly considered in the final judgment, thereby occasioning him an unfair hearing.
3. THAT the learned Magistrate erred in law and procedure by prematurely ordering the attachment of the Appellant’s salary without first giving him an opportunity to comply with the final maintenance order or to be heard on the proposed mode of enforcement.
4. THAT the learned Magistrate erred in law by failing to give sufficient reasons for her determination of all the material issues raised by the Appellant.
5. THAT the learned Magistrate erred in law and fact by disregarding and/or failing to give proper consideration to the Appellant’s pleadings, evidence and written submissions, thereby occasioning an injustice.
6. THAT the learned Magistrate erred in law and fact by making orders that were not in the best interests of the minor.
7. THAT the learned Magistrate erred in law and fact by ordering the Appellant to pay KShs.35,000 per month, an amount that is excessive, punitive and inconsistent with the best interests of the minor, in that;
a. the amount creates a deficit in the Appellant’s disclosed means;
b. the order is financially unsustainable;
c. the Appellant is unable to comply with the order without prejudicing his other lawful obligations; and
d. the order exposes the Appellant to the risk of being cited for breach and/or contempt.
8. THAT the learned Magistrate’s determination on maintenance was irrational, manifestly unfair and based on an improper exercise of judicial discretion, in that;
a. the amount awarded exceeded the reasonable and proved needs of the minor;
b. the amount exceeded what had previously been proposed by the Respondent; and
c. the amount exceeded the standard of upbringing previously agreed upon and/or contemplated by the parties.
9. THAT the learned Magistrate erred in law and fact by failing to consider that the maintenance award in favour of one child would prejudice and discriminate against the Appellant’s other children, who are equally entitled to his parental care and financial support.
10. THAT the learned Magistrate failed to consider the Appellant’s increased financial responsibility arising from his elder daughter’s change of school and the resulting additional educational expenses.
11. THAT the learned Magistrate erred in law and fact by failing to give proper consideration to the Appellant’s changed circumstances and his responsibility to maintain another minor child, including the additional costs of;
a. securing suitable housing;
b. employing a house help;
c. providing medical care for the child; and
d. meeting the child’s other basic needs.
12. THAT the learned Magistrate erred in law and fact by failing to consider that;
a. the Respondent unilaterally transferred the minor to a more expensive international school without consulting or obtaining the consent of the Appellant;
b. the Respondent earns substantially more than the Appellant;
c. the maintenance order unfairly places a disproportionate financial burden upon the Appellant; and
d. the Appellant should not be compelled to meet expenses attributable to the Respondent’s wider household, including the full cost of a house help serving that household.
13. THAT in all the circumstances, the learned Magistrate failed to properly balance the parties’ respective financial means, obligations and contributions and thereby arrived at orders that were neither proportionate nor consistent with the best interests of the minor.
8. The Appellant asks this Court to set aside the order attaching his salary, review the maintenance order downwards and grant such further relief as it considers appropriate.
9. In his submissions, the Appellant contends that Kshs.35,000 per month is excessive compared with his net salary of approximately Kshs.177,000. He proposes a monthly contribution of between Kshs.12,500 and Kshs.16,000. He argues that the existing order prejudices his other children, does not sufficiently account for the Respondent’s higher income and wrongly requires him to meet expenses arising from the Respondent’s household.
10. The Appellant further challenges the minor’s continued enrolment at Viraj International Academy. He maintains that the Respondent unilaterally transferred the minor to a more expensive international school and that a Kenyan curriculum school charging approximately Kshs.50,000 per term would be more affordable and sustainable.
11. On salary attachment, the Appellant submits that the order was made prematurely, before he had an opportunity to comply with the final maintenance order. He also contends that the attachment may adversely affect his employment and ability to obtain credit facilities.
12. The Respondent opposes the appeal. She first raises a preliminary objection that the record does not contain a certified decree, contrary to Order 42 of the Civil Procedure Rules. She relies on Fredrick Mwangi Njuguna v East African Growers Ltd [2015] KEHC 5151 (KLR) and argues that the omission renders the appeal fatally defective.
13. On the merits, the Respondent relies upon SKN v GMM [2024] KEHC 2552 (KLR). She submits that the trial court considered the Appellant’s affidavit of means, the parties’ evidence and the needs of the minor before reducing the interim amount from Kshs.45,000 to Kshs.35,000 per month. She maintains that the Appellant’s proposed payment of Kshs.12,500 to Kshs.16,000 is inadequate.
14. The Respondent further submits that direct attachment was justified by the Appellant’s history of delayed or irregular payments and would ensure continuity in the minor’s support. She asks the Court to dismiss the appeal and uphold the trial court’s judgment.
B. ISSUES FOR DETERMINATION
15. Having considered the Memorandum of Appeal, record, evidence, submissions and authorities, the following issues arise:
a. whether the appeal is incompetent for omission of a certified decree;
b. whether the Appellant was denied a fair hearing or the trial magistrate demonstrated bias;
c. whether the trial court erred in fixing the Appellant’s contribution at Kshs.35,000 per month;
d. whether the trial court erred in ordering that the minor remain at Viraj International Academy;
e. whether the direct attachment of the Appellant’s salary was lawful and procedurally proper; and
f. what orders should issue.
C. DUTY OF THIS COURT
16. Under Section 99 of the Children Act, 2022, an appeal from the Children’s Court lies to the High Court on matters of fact and law.
17. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and reach its own independent conclusions, while bearing in mind that it did not see or hear the witnesses. That duty was stated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and has repeatedly been affirmed by the Court of Appeal, including in Dennis v SOO [2023] KECA 881 (KLR).
18. Nevertheless, the Court should not casually displace the trial court’s factual findings or exercise of discretion. In Ephantus Mwangi & another v Duncan Mwangi Wambugu [1984] KECA 54 (KLR), the Court of Appeal held that an appellate court will not normally interfere with findings of fact unless they were based on no evidence, resulted from a misapprehension of the evidence, or were reached through the application of a wrong principle.
19. Similarly, where the challenged order involves judicial discretion, appellate interference is warranted where the lower court misdirected itself, considered irrelevant matters, omitted relevant matters, or reached a plainly wrong result. See NBR v JO [2017] KECA 585 (KLR).
20. Above all, Article 53(2) of the Constitution and section 8 of the Children Act require the child’s best interests to be the paramount consideration. The appeal is not primarily a contest between the parents. Every order must ultimately promote the minor’s welfare, stability and development.
D. ANALYSIS AND DETERMINATION
(i) Whether omission of the certified decree renders the appeal incompetent
21. The Respondent contends that the appeal is fatally defective because the Record of Appeal contains the judgment but not the certified decree. She relies on Order 42 rules 2 and 13(4) of the Civil Procedure Rules and Fredrick Mwangi Njuguna v East African Growers Ltd [2015] KEHC 5151 (KLR).
22. A decree is an important appellate document because it is the formal expression of the decision challenged. Nevertheless, the Court of Appeal has clarified that its omission does not invariably require an appeal to be struck out where the defect is curable, the judgment is available, the orders appealed against are ascertainable and the opposing party has suffered no prejudice. See Kenya Commercial Finance Company Ltd v Richard Akwesera Onditi [2010] KECA 134 (KLR) and Teachers Service Commission v Kamau & 19 others [2023] KECA 990 (KLR).
23. The entire judgment delivered on 2nd July 2024 is contained in the record. The orders challenged are clear, and the Respondent has fully addressed the appeal on its merits. No uncertainty or prejudice has been demonstrated.
24. This is also a children’s matter. Section 95(3) of the Children Act, 2022 recognises that delay in determining a question concerning a child is likely to prejudice the child’s welfare. Striking out the appeal on a curable omission would merely prolong the parties’ conflict without advancing the minor’s interests.
25. The preliminary objection is therefore rejected. The Appellant shall, however, file a supplementary record containing the certified decree within thirty days.
(ii) Alleged bias and denial of a fair hearing
26. The Appellant alleges that the trial magistrate manipulated him into withdrawing an interlocutory appeal on the understanding that his concerns would be favourably determined in the final judgment. He also used expressions suggesting corruption and prejudice.
27. The allegation is serious. The applicable test is whether a fair-minded and informed observer, having considered the relevant facts, would reasonably apprehend that the judicial officer was not impartial. An adverse ruling, without more, does not establish bias.
28. The record shows that the Appellant was permitted to file an amended plaint, witness statements, documents, affidavits of means, applications and written submissions. He testified and cross-examined the Respondent. The trial court also considered the children officer’s reports, the psychologist’s reports and the minor’s views.
29. The Appellant obtained joint legal custody, structured access and a reduction of the interim monthly obligation from KShs.45,000 to KShs.35,000. Those outcomes do not support the allegation that the court had predetermined the dispute against him.
30. No transcript, affidavit, correspondence or court order has been identified showing that the magistrate promised a favourable judgment or procured withdrawal of the interlocutory appeal through deception. The record instead indicates that the court stated that the maintenance issues would be considered at the full hearing, which they ultimately were.
31. The allegation of bias is therefore not proved. The Appellant was entitled to criticise the reasoning and challenge the orders on appeal, but allegations of corruption against a judicial officer ought not to be made without cogent evidence.
(iii) Principles governing maintenance
32. Article 53(1)(e) of the Constitution provides that every child has the right to parental care and protection, including the equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. Under Article 53(2), the child’s best interests are of paramount importance in every matter concerning the child.
33. Sections 31, 32 and 110 of the Children Act reinforce those obligations. Section 110 specifically provides that it is the joint duty and responsibility of both parents to maintain their child. Sections 113 and 118 empower the court to make financial provision concerning the child’s education, medical care, housing, clothing and other needs.
34. Equal parental responsibility does not invariably mean an identical division of every expense. It means that neither parent may abdicate responsibility and that each must make a real contribution proportionate to his or her means, resources, responsibilities and the child’s reasonable needs. The contribution of the parent with actual custody includes direct expenditure and the daily labour of caring for the child, but actual custody does not excuse that parent from making a financial contribution where he or she has the means.
35. In Stephen Blanchet v Akach Adhiambo Langi [2010] KECA 181 (KLR), the Court of Appeal emphasised that the contributions of both parents must be actual, fair and enforceable rather than merely nominal. In HKN v LNW [2024] KECA 437 (KLR), the Court reaffirmed that parental responsibility is joint and that the child’s best interests remain the controlling consideration.
36. The “best interests” principle does not mean that any amount demanded for a child must automatically be granted. The court must distinguish between:
a. the child’s proved and reasonable needs;
b. the parents’ preferred lifestyle choices;
c. expenses attributable to the wider household; and
d. expenditure which one parent incurred unilaterally without consulting the other.
37. A maintenance order should be adequate but also realistic and sustainable. An order which predictably overwhelms the paying parent, produces chronic default and generates repeated enforcement proceedings may ultimately work against the child’s welfare.
38. The court must equally avoid permitting a parent to escape responsibility by prioritizing discretionary expenditure, consumer loans or personal lifestyle choices above a child’s basic needs. Financial hardship must be proved and scrutinized; it cannot merely be asserted.
(iv) whether the trial court erred in fixing the Appellant’s contribution at Kshs.35,000 per month
The Appellant’s position
39. The Appellant’s evidence was that his net salary was approximately KShs.177,000 per month. He initially disclosed rental income of between KShs.40,000 and KShs.45,000 per month, but later stated that the tenant had vacated. He also disclosed mortgage or house-loan deductions, a vehicle loan, rent for his present residence, household expenses, a house help, an education policy and obligations towards his other children.
40. The Appellant contended that the award of KShs.35,000 per month consumed approximately one-fifth of his net salary and left insufficient resources for his other children. He proposed a contribution of between KShs.12,500 and KShs.16,000 per month, although his amended plaint and earlier evidence had proposed KShs.20,000.
41. His case on the other children cannot be dismissed as irrelevant. The birth certificate produced established another biological child, and it was not disputed that he also had an older daughter. Those children are protected by the same Article 53 of the Constitution. The Court cannot fashion an order which treats the child in this case as having an exclusive or superior claim over the Appellant’s lawful parental resources.
42. However, not every expense relied upon by the Appellant deserves equal weight. The Appellant cannot place mortgage payments, a motor-vehicle loan, tithes, discretionary household expenditure or voluntary financial commitments ahead of the minor’s basic needs. Nor can the Court make provision for hypothetical future children.
43. The Appellant’s responsibility towards a stepchild also does not automatically rank in the same manner as his statutory obligation towards his biological children unless the legal and evidential basis of that responsibility is established. His strongest relevant considerations are therefore his net income, existing biological children, reasonable housing costs and proved essential expenses.
44. The Court must also take into account that the Appellant admitted that he had no documentary evidence of regular support for this minor between 2019 and August 2023. His previous absence from the child’s financial life does not justify an excessive current order, but it weakens the suggestion that the Respondent’s concerns regarding consistency were entirely unfounded.
45. There was also evidence that payments under the interim order were delayed or disputed. The Appellant’s obligation must consequently remain substantial, definite and payable on a fixed date. The proper remedy is not to reduce it to a merely token amount.
The Respondent’s position
46. The Respondent has provided the minor’s actual home and daily care since the parties separated. She has met the costs of food, shelter, clothing, medical care, education and supervision and has had to organise the child’s routine while managing the parties’ difficult co-parenting relationship.
47. Those contributions are significant and cannot be ignored simply because they are not all reflected in cash receipts. The person with actual custody bears an ongoing economic and caregiving burden which the non-custodial parent does not bear to the same extent.
48. The Respondent was therefore entitled to insist that the Appellant make a meaningful and regular contribution. Her opposition to the Appellant’s proposed KShs.12,500 to KShs.16,000 is justified because that amount would inadequately reflect his admitted income, the minor’s ordinary needs and the Respondent’s day-to-day caregiving burden.
49. The Respondent’s case, however, also has limits. Actual custody does not make her financial obligation merely notional. The evidence before the trial court indicated that she had stable employment and materially greater earnings than the Appellant. She was therefore capable of bearing a substantial share of the child’s monetary expenses.
50. Neither may the Appellant be compelled to pay for the Respondent’s wider household. The entire salary and food cost of a house help serving the Respondent, her partner, their other child and the general household cannot be attributed solely to the minor. Only a reasonable proportion connected to the care of the minor may properly form part of his maintenance.
51. The income of the Respondent’s new partner does not replace the parental responsibility of either biological parent. Unless a proper statutory basis is established, the new partner cannot be treated as primarily responsible for the minor’s maintenance. Equally, his presence in the household does not permit the Respondent to attribute the whole household expenditure to the minor and recover it from the Appellant.
Assessment of the appropriate monthly contribution
52. The evidence included a draft parental responsibility arrangement dated 12 June 2023. It was neither signed by both parties nor adopted as an order and therefore did not amount to a binding consent. It nevertheless provides relevant evidence of the parties’ negotiations and their then assessment of the child’s expenditure.
53. That draft identified monthly household and personal expenses of approximately KShs.38,813, including food, clothing, a housekeeper and uncovered medication. It proposed equal sharing of those items, which would have placed the Appellant’s contribution at approximately KShs.19,406 per month before educational expenses.
54. The document also proposed an education contribution ratio of 42% by the Appellant and 58% by the Respondent. The ratio was not binding, but it was consistent with the parties’ comparative means and constitutes a useful evidential benchmark.
55. The trial court fixed the Appellant’s contribution at KShs.35,000 per month. It stated that it had considered his net salary, his other children, the temporary loss of rental income and the Respondent’s circumstances. However, it did not set out a calculation linking KShs.35,000 to the minor’s proved monthly needs or clearly distinguish ordinary upkeep from school fees and the international-school premium.
56. The figure represented approximately 19.8% of the Appellant’s admitted net salary. That percentage is not necessarily excessive when viewed alone. It must, however, be considered alongside his obligation to maintain his other biological children, his reasonable living costs and the Respondent’s greater earning capacity.
57. The Appellant’s affidavit of means disclosed a deficit, but that deficit cannot be accepted without qualification. It included expenditure which could not properly rank ahead of child maintenance, and the loss of rental income may have been temporary. His immovable property and employment also demonstrated a greater financial capacity than his proposed KShs.12,500 to KShs.16,000 suggested.
58. The Respondent, on the other hand, has actual custody and bears the greater practical caregiving burden, but she also has the higher demonstrated income and made the major educational decision without the Appellant’s agreement.
59. Putting both parties in consideration, I find that:
a. the Appellant’s proposed KShs.12,500 to KShs.16,000 is insufficient;
b. the trial court’s KShs.35,000 award did not adequately distinguish the child’s ordinary needs from the premium created by the unilateral choice of an international school;
c. the Appellant’s other biological children are relevant and cannot be treated as an afterthought;
d. the Respondent must make a substantial financial contribution in addition to her caregiving contribution; and
e. the amount ordered must be capable of regular compliance without becoming merely punitive.
60. A monthly contribution of KShs.20,000 towards the minor’s ordinary upkeep is, in my assessment, fair, meaningful and sustainable. It is broadly consistent with the Appellant’s approximate half-share of the ordinary expenses identified during the parties’ negotiations, while recognising that some household costs must be apportioned rather than charged wholly to the child.
61. That amount does not include the Appellant’s contribution towards tuition and essential school requirements, which must be dealt with separately to avoid confusion and duplication.
(v) Choice of school and educational expenses
62. The Appellant complains that the Respondent transferred the minor to Viraj International Academy without his knowledge or consent. He does not dispute that the school provides quality education or that the child has made progress there. His objections relate principally to affordability, the Cambridge curriculum and future sustainability.
63. The Respondent’s position is that she selected the school when she was solely meeting the minor’s needs and the Appellant was absent from his financial and daily upbringing. She contends that the child is settled and that a transfer would disrupt his education.
64. Both positions have merit. The Respondent was faced with the practical responsibility of providing education during the Appellant’s absence. The Court cannot ignore that she paid the fees and maintained continuity when the Appellant was not contributing. The selection was therefore not shown to have been made solely to burden him.
65. Nevertheless, education is a major aspect of parental responsibility. Section 32 of the Children Act places parental responsibility upon both parents on an equal basis. Section 33(2)(i), though framed in the context of parental responsibility agreements, reflects the legislative expectation that decisions concerning a child’s education should be jointly made.
66. Joint legal custody is not an ornamental declaration. It requires consultation on major decisions, including the school, curriculum, non-emergency medical treatment, relocation and travel. A parent with actual custody does not thereby acquire exclusive power to make all important decisions.
67. The Respondent’s unilateral transfer was therefore inconsistent with proper co-parenting. A parent cannot select a substantially more expensive school without consultation and then treat the whole resulting cost as an enforceable obligation against the other parent.
68. At the same time, it would be wrong to order an immediate transfer merely to penalise the Respondent. The child is settled at the school, no complaint has been made about his academic progress, and the trial court found that moving between materially different curricula could disrupt him. Under section 95(2)(b) and (c) of the Children Act, the Court must consider the child’s educational needs and the likely effect of a change in circumstances.
69. In JO v SAO [2016] KECA 55 (KLR), the Court of Appeal emphasised that the child’s best interests must be assessed objectively rather than through the competing preferences of the parents. In LAC & another v MJC [2022] KECA 68 (KLR), the Court similarly stressed the importance of stability and the child’s welfare in determining parental arrangements.
70. The minor should therefore remain at Viraj International Academy for the time being. However, the Respondent must bear the additional cost arising from her unilateral preference for that school over the affordable alternative proved by the Appellant.
71. The Appellant produced evidence of schools offering the Kenyan curriculum at approximately KShs.50,000 per term. Using that as a reasonable benchmark and the parties’ previous proposed ratio of 42% to 58%, the Appellant’s contribution would be KShs.21,000 per school term. The Respondent shall meet the remainder of Viraj International Academy’s tuition fees.
72. This result preserves the child’s educational stability while ensuring that one parent does not unilaterally determine the standard of expenditure and compel the other to fund it irrespective of affordability.
73. Essential books, stationery and uniform are legitimate educational expenses. They shall be shared in the ratio of 42% by the Appellant and 58% by the Respondent upon production of invoices or receipts. Optional trips, clubs, entertainment and extracurricular expenses shall not be imposed upon the other parent without prior consultation and written agreement.
78. Neither parent shall change the minor’s school or curriculum in future without the other’s written consent. If they cannot agree, either may seek directions from the Children’s Court before the change is made. The Court will not permit either parent to “spend first and consult later.”
(vi) Whether the salary attachment was lawful
79. The trial court directed that the KShs.35,000 monthly contribution be attached from the Appellant’s salary. Its reason was that the parties’ toxic relationship made reconciliation of payments difficult and that direct attachment was prudent and convenient.
80. The Respondent submits that attachment was justified because the Appellant had made irregular payments under the interim order and had previously been found in contempt. She contends that direct deduction would protect the child from interruptions in maintenance.
81. The Appellant contends that
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