1. The respondent in this appeal filed a notice of motion application dated 14th February 2024 in the court below, vide which he sought to have the Court review, vary, and or set aside orders emanating from its orders issued on 26th July 2023, as well as the orders emanating from the ruling delivered on 27th November 2023.
2. After hearing the parties, the trial magistrate, the Hon Nelly Chepchirchir, found that there were new developments that were sufficient in her view to review the orders of the court. The new developments, inter alia, are that one of the children is now based in Nakuru. The learned magistrate reasoned that Kes 20,000.00 was too high in the circumstances and ordered that the amount payable be revised downwards to Kes 10,000.00. She also ordered that the amount would be subject to a 10% increment every 3 years. Whenever the older child visited the mother in Mombasa, the respondent would pay Kes 2,500.00 per week to cater for the maintenance of the said older child. She directed the appellant to look for a smaller house within three months, preferably one with two bedrooms, whose rent would be paid by both parties equally, and ordered that in the intervening period, the respondent would continue paying rent for the house she was in at the time.
3. The appellant was aggrieved by the said decision and filed the instant appeal. The appeal raises six grounds, which I shall set out below. These are:-
1. That the learned magistrate erred in law and fact when she reviewed the order of 26th July 2023 against the best interests of the children;
2. That the learned magistrate erred in law and fact in taking into account the respondent’s best interest instead of the children’s best interest in arriving at her decision;
3. That the learned magistrate erred in law and fact in issuing peremptory orders before the hearing and determination of the main suit, thereby prejudicing the appellant;
4. That the learned magistrate erred in law and in fact in issuing orders without considering that the appellant did not have adequate means, thereby rendering the decision unjust and unreasonable;
5. That the learned magistrate erred in law and fact in providing maintenance of Kes 10,000.00 for only one minor, disregarding the fact that there are two minors involved in the matter; and
6. That the learned Magistrate erred in law and fact in providing the maintenance amount of Kes 10,000.00 for one minor, which is inadequate and does not sufficiently cater for the needs of the minor.
4. The appellant seeks to have the ruling of the trial Court made on 3rd May 2024 set aside, the maintenance amount revised upwards to cater for the needs of both minors involved, and costs of the appeal and the Court below.
5. Pursuant to the directions issued by this Court on 8th July 2024, the appeal was canvassed by way of written submissions, which were subsequently highlighted on 28th November 2024. I will provide a summary of the parties' submissions below.
6. I note that at this point, the main suit has not been heard. This is an appeal against the interlocutory decision of the Court.
7. The written submissions of the appellant are dated 23rd August 2024. The appellant’s counsel, Messrs. Kibatia & Co., submitted that the paramount consideration in children's matters was their best interest. It was contended that the orders made on 26th July 2023 provided essential maintenance and support for the minors, “ensuring their welfare and well-being”. The counsel for the appellant contended that by reviewing the orders, the learned magistrate” failed to uphold this fundamental principle, contrary to the provisions of the Children’s Act and established legal precedent.
8. Ms. Wambui learned counsel for the appellant submitted that the learned magistrate gave undue weight to the assertions made by the respondent, catered to his interests rather than those of the children and failed to give due weight to provision of Article 53(1)(e) of the Constitution of Kenya which provides that every child is entitled to “parental care and protection, which includes equal responsibility of the father and mother to provide for the child whether they are married to each other or not.” She urged that the learned magistrate should also have considered the best interest principle as stipulated in Article 53(2) of the Constitution of Kenya and Section 8(1) of the Children Act.
9. Ms Wambui submitted that there was insufficient consideration of the means of the parties, the adequacy of the amount provided, and the fact that the appellant was taking care of 2, rather than one, child.
10. It was contended, relying on the case of EMM vs MOO [2016]eKLR, that equal responsibility did not mean equal or similar contribution. It was argued that, based on the ratio in the case of KMM vs MMO [2022] eKLR, an inquiry should have been conducted into the respective means of the parties. Had the learned magistrate done so, she would have ensured an equitable distribution of financial responsibility, which would have provided good protection for the children.
11. Ms. Wambui submitted that the learned Magistrate issued peremptory orders which took effect immediately before the full case was heard. In particular, she was aggrieved by the decision to award Kes 10,000.00 per month, subject to a 10% increment every 3 years. This, she submitted, was a permanent order which could only have been issued upon conclusion of the hearing. The issuance of the said order, she submitted, compromised the hearing of the main suit and would probably influence its outcome. She contended that the trial Court did so even when many matters were still in contention.
12. Counsel submitted that the denial of the right to present their case was a fundamental breach. Reliance was placed on the decision of the Court in the case of Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) [2018] KEHC 8941 (KLR), where the Court stated that:-
“62. To my mind, the factors which the Respondent intended to take into consideration in determining the complaint ought to have been presented to the applicant with as much particularity as the circumstances required and the Applicant’s version on the same heard and considered before the decision which clearly was adverse to the Applicant’s interests was taken. It is in this respect that I associate myself with the position in Board of Education vs. Rice; [1911] AC 179 in which Lord Loreburn LC stated that:
“a decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it, is fundamental to the principle of law (which governs public administration as much as it does adjudication) that to act in good faith and listen fairly to both sides is ‘a duty lying upon everyone who decides anything."
13. The written submissions of the respondent are dated 14th October 2024. The firm of MA Mohamed & Co. Advocates filed the same. The respondent contended that the appeal has no merit and should be dismissed.
14. It was urged that since the decision was delivered, there had been a change of the circumstances, as both children are now in Nakuru, unlike before. There was, however, a lack of clarity on the said averment as the respondent’s counsel, in subsequent paragraphs, submitted that the appellant lived with the younger child. It was also contended that only one of the children was of school-going age. Mr Mohamed, learned counsel for the respondent, submitted that the parties had been divorced and were living separately.
15. Mr Mohamed identified the issue for determination in this matter as being whether the appeal was merited.
16. He submitted that the respondent lived in Nakuru with one of the children, SA. The appellant lived with IR, who was not of school-going age. He urged that it was unfair for the respondent to pay for a 3-bedroom house in Mombasa, occupied by the appellant and a 3-year-old child, paying Kes 20,000.00 as maintenance to the appellant and at the same time, shoulder his living expenses as well as those of SA without the input of the appellant.
17. Just as Ms. Wambui had done, Mr. Mohamed relied on Article 53(1) (e) and 53(2) of the Constitution. Additionally, he referred to sections 31 and 32, as well as section 110 of the Children Act, 2022, and urged that maintenance was the obligation and responsibility of both parents.
18. It was submitted that the respondent was bearing the most burden of bringing up the children. Further, it was contended that the respondent’s finances were strained due to the increased cost of living. Having been transferred to Nakuru, it was very expensive for him to manage two households. He urged that the appellant wanted to retain a high standard of living at his expense. He relied on the case of EM vs AM [2020]eKLR, where the Court observed that:-
“It would therefore appear to me that the Respondent is merely interested in maintaining the “high standard he had already set for the children,” at the expense of the appellant. She has equated this “ high standard” to the best interest of the children.”
19. Counsel submitted that in determining the level of maintenance care that should be taken to ensure that the husband is not depressed. In support of the said contention, reliance was placed in the case of Crispus Maghanga Mzae vs Mary Mukhwana Kwanusu, Mombasa HCDC NO 58 of 2004, where it was stated that:-
“When fixing the amount of maintenance, the Court must ensure that the sum fixed is in all circumstances fair, reasonable and that the figure does not depress the husband.”
20. Mr. Mohamed therefore prayed that the appeal be dismissed with costs to the Respondent.
21. I have considered the record of the court below and the written and oral submissions of the parties. In my view, the issues that fall for determination are the following:-
1. Was the Court below correct to review its previous ruling?
2. Whether the Court below made peremptory orders that prejudiced the hearing of the matter?
3. Whether the appeal has merit?
4. What orders should be issued?
22. This is the first appeal. The appeal is against an interlocutory decision of the Court below. As already indicated the main suit is still pending before the trial court.
23. It is trite law that the Court, when considering matters concerning children, must have their best interest as the paramount consideration. Article 53(2) of the Constitution is emphatic that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
24. The Constitution is also clear that parental responsibility is shared between both parents, regardless of whether they are married to each other. It provides in clear terms that:-
“(1) Every child has the right—
(a) to a name and nationality from birth;
(b) to free and compulsory basic education;
(c) to basic nutrition, shelter and health care;
(d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
(e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not…” (emphasis added).
25. The provisions of the Constitution are given effect by section 8(1) of the Children Act, 2022 which states as follows:-
“(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.”
26. Was the Court right in its decision to review the ruling on the grounds of new developments? Can this court disturb the findings of the trial court? The Court, in the case of Mbogo v Shah (1968) 93, stated as follows:-
“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision might have been different.”
27. The trial court was required to consider the parties' circumstances as it made its decision. Makhandia, J (as he then was) in Joachim Ndaire Macharia vs. Mary Wangare Ndaire & Another Nyeri HCCA No. 63 of 2006 held that:
“The law on parental responsibility is that the same is shared, and the expenses incurred by the respondent ought to have been shared by both the appellant and the respondent…In ordering the appellant to pay Kshs 50,000.00 the court did not, under section 94 of the Children’s Act consider that the appellant had another family, his financial means had not been thoroughly investigated and the fact also that the respondent had some form of income. If the appellant earns Kshs7000.00 to 8,000.00 the justice of the case would not have demanded that he be compelled to pay Kshs. 5,000.00 per month. Therefore the sum of Kshs 50,000 and 5,000.00 respectively ordered by the learned Magistrate to be paid by the appellant were excessive having regard to the above circumstances and calls for intervention. Therefore since the expenses were Kshs 46,800/= the Kshs 50,000/= is reduced to Kshs 23,400/= and the monthly sum of Kshs 5,000/= reduced to Kshs 2,000/=.”
28. I agree with what Chitembwe, J stated in the case of AAJ vs. AA suing through MM [2018] eKLR where he noted that:
“The Court should not simply consider the interest of the children in maintenance cases and close its eyes on the needs of the parent who is expected to cater for the children...It is not the duty of the Court to burden parents with heavy maintenance expenses which visibly amounts to pampering the child.”
29. Although the court below ought not to have made the findings on the adjustment of the maintenance sums after every three years, I do not think that this prejudiced the appellant greatly to the extent suggested. This is a matter which the parties can revisit during trial.
30. The Court, in reviewing its previous decision, took into consideration
1. The fact that the divorce between the parties was concluded;
2. The fact that one child lived outside the matrimonial home and attended school in Nakuru.
31. The Court found as being sufficient new developments to award Kes 10,000.00 and ordered that whenever one child was the applicant, the Respondent would pay Kes 2,500.00 per week.
32. The Court also gave the applicant 3 months to look for a new accommodation and ordered that rent for the new house would be shared on a 50:50 basis.
33. In my view, the Court below properly exercised its discretion. The decision on review was not so bad as to justify this Court in disturbing it. In the circumstances, I decline to allow the appeal. The appeal is dismissed with no orders as to costs.
34. It is so ordered.
Dated and signed at Mombasa, this 23rd day of May 2025. Delivered virtually through Microsoft TEAMS.
2. After hearing the parties, the trial magistrate, the Hon Nelly Chepchirchir, found that there were new developments that were sufficient in her view to review the orders of the court. The new developments, inter alia, are that one of the children is now based in Nakuru. The learned magistrate reasoned that Kes 20,000.00 was too high in the circumstances and ordered that the amount payable be revised downwards to Kes 10,000.00. She also ordered that the amount would be subject to a 10% increment every 3 years. Whenever the older child visited the mother in Mombasa, the respondent would pay Kes 2,500.00 per week to cater for the maintenance of the said older child. She directed the appellant to look for a smaller house within three months, preferably one with two bedrooms, whose rent would be paid by both parties equally, and ordered that in the intervening period, the respondent would continue paying rent for the house she was in at the time.
3. The appellant was aggrieved by the said decision and filed the instant appeal. The appeal raises six grounds, which I shall set out below. These are:-
1. That the learned magistrate erred in law and fact when she reviewed the order of 26th July 2023 against the best interests of the children;
2. That the learned magistrate erred in law and fact in taking into account the respondent’s best interest instead of the children’s best interest in arriving at her decision;
3. That the learned magistrate erred in law and fact in issuing peremptory orders before the hearing and determination of the main suit, thereby prejudicing the appellant;
4. That the learned magistrate erred in law and in fact in issuing orders without considering that the appellant did not have adequate means, thereby rendering the decision unjust and unreasonable;
5. That the learned magistrate erred in law and fact in providing maintenance of Kes 10,000.00 for only one minor, disregarding the fact that there are two minors involved in the matter; and
6. That the learned Magistrate erred in law and fact in providing the maintenance amount of Kes 10,000.00 for one minor, which is inadequate and does not sufficiently cater for the needs of the minor.
4. The appellant seeks to have the ruling of the trial Court made on 3rd May 2024 set aside, the maintenance amount revised upwards to cater for the needs of both minors involved, and costs of the appeal and the Court below.
5. Pursuant to the directions issued by this Court on 8th July 2024, the appeal was canvassed by way of written submissions, which were subsequently highlighted on 28th November 2024. I will provide a summary of the parties' submissions below.
6. I note that at this point, the main suit has not been heard. This is an appeal against the interlocutory decision of the Court.
7. The written submissions of the appellant are dated 23rd August 2024. The appellant’s counsel, Messrs. Kibatia & Co., submitted that the paramount consideration in children's matters was their best interest. It was contended that the orders made on 26th July 2023 provided essential maintenance and support for the minors, “ensuring their welfare and well-being”. The counsel for the appellant contended that by reviewing the orders, the learned magistrate” failed to uphold this fundamental principle, contrary to the provisions of the Children’s Act and established legal precedent.
8. Ms. Wambui learned counsel for the appellant submitted that the learned magistrate gave undue weight to the assertions made by the respondent, catered to his interests rather than those of the children and failed to give due weight to provision of Article 53(1)(e) of the Constitution of Kenya which provides that every child is entitled to “parental care and protection, which includes equal responsibility of the father and mother to provide for the child whether they are married to each other or not.” She urged that the learned magistrate should also have considered the best interest principle as stipulated in Article 53(2) of the Constitution of Kenya and Section 8(1) of the Children Act.
9. Ms Wambui submitted that there was insufficient consideration of the means of the parties, the adequacy of the amount provided, and the fact that the appellant was taking care of 2, rather than one, child.
10. It was contended, relying on the case of EMM vs MOO [2016]eKLR, that equal responsibility did not mean equal or similar contribution. It was argued that, based on the ratio in the case of KMM vs MMO [2022] eKLR, an inquiry should have been conducted into the respective means of the parties. Had the learned magistrate done so, she would have ensured an equitable distribution of financial responsibility, which would have provided good protection for the children.
11. Ms. Wambui submitted that the learned Magistrate issued peremptory orders which took effect immediately before the full case was heard. In particular, she was aggrieved by the decision to award Kes 10,000.00 per month, subject to a 10% increment every 3 years. This, she submitted, was a permanent order which could only have been issued upon conclusion of the hearing. The issuance of the said order, she submitted, compromised the hearing of the main suit and would probably influence its outcome. She contended that the trial Court did so even when many matters were still in contention.
12. Counsel submitted that the denial of the right to present their case was a fundamental breach. Reliance was placed on the decision of the Court in the case of Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) [2018] KEHC 8941 (KLR), where the Court stated that:-
“62. To my mind, the factors which the Respondent intended to take into consideration in determining the complaint ought to have been presented to the applicant with as much particularity as the circumstances required and the Applicant’s version on the same heard and considered before the decision which clearly was adverse to the Applicant’s interests was taken. It is in this respect that I associate myself with the position in Board of Education vs. Rice; [1911] AC 179 in which Lord Loreburn LC stated that:
“a decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it, is fundamental to the principle of law (which governs public administration as much as it does adjudication) that to act in good faith and listen fairly to both sides is ‘a duty lying upon everyone who decides anything."
13. The written submissions of the respondent are dated 14th October 2024. The firm of MA Mohamed & Co. Advocates filed the same. The respondent contended that the appeal has no merit and should be dismissed.
14. It was urged that since the decision was delivered, there had been a change of the circumstances, as both children are now in Nakuru, unlike before. There was, however, a lack of clarity on the said averment as the respondent’s counsel, in subsequent paragraphs, submitted that the appellant lived with the younger child. It was also contended that only one of the children was of school-going age. Mr Mohamed, learned counsel for the respondent, submitted that the parties had been divorced and were living separately.
15. Mr Mohamed identified the issue for determination in this matter as being whether the appeal was merited.
16. He submitted that the respondent lived in Nakuru with one of the children, SA. The appellant lived with IR, who was not of school-going age. He urged that it was unfair for the respondent to pay for a 3-bedroom house in Mombasa, occupied by the appellant and a 3-year-old child, paying Kes 20,000.00 as maintenance to the appellant and at the same time, shoulder his living expenses as well as those of SA without the input of the appellant.
17. Just as Ms. Wambui had done, Mr. Mohamed relied on Article 53(1) (e) and 53(2) of the Constitution. Additionally, he referred to sections 31 and 32, as well as section 110 of the Children Act, 2022, and urged that maintenance was the obligation and responsibility of both parents.
18. It was submitted that the respondent was bearing the most burden of bringing up the children. Further, it was contended that the respondent’s finances were strained due to the increased cost of living. Having been transferred to Nakuru, it was very expensive for him to manage two households. He urged that the appellant wanted to retain a high standard of living at his expense. He relied on the case of EM vs AM [2020]eKLR, where the Court observed that:-
“It would therefore appear to me that the Respondent is merely interested in maintaining the “high standard he had already set for the children,” at the expense of the appellant. She has equated this “ high standard” to the best interest of the children.”
19. Counsel submitted that in determining the level of maintenance care that should be taken to ensure that the husband is not depressed. In support of the said contention, reliance was placed in the case of Crispus Maghanga Mzae vs Mary Mukhwana Kwanusu, Mombasa HCDC NO 58 of 2004, where it was stated that:-
“When fixing the amount of maintenance, the Court must ensure that the sum fixed is in all circumstances fair, reasonable and that the figure does not depress the husband.”
20. Mr. Mohamed therefore prayed that the appeal be dismissed with costs to the Respondent.
21. I have considered the record of the court below and the written and oral submissions of the parties. In my view, the issues that fall for determination are the following:-
1. Was the Court below correct to review its previous ruling?
2. Whether the Court below made peremptory orders that prejudiced the hearing of the matter?
3. Whether the appeal has merit?
4. What orders should be issued?
22. This is the first appeal. The appeal is against an interlocutory decision of the Court below. As already indicated the main suit is still pending before the trial court.
23. It is trite law that the Court, when considering matters concerning children, must have their best interest as the paramount consideration. Article 53(2) of the Constitution is emphatic that:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
24. The Constitution is also clear that parental responsibility is shared between both parents, regardless of whether they are married to each other. It provides in clear terms that:-
“(1) Every child has the right—
(a) to a name and nationality from birth;
(b) to free and compulsory basic education;
(c) to basic nutrition, shelter and health care;
(d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
(e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not…” (emphasis added).
25. The provisions of the Constitution are given effect by section 8(1) of the Children Act, 2022 which states as follows:-
“(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.”
26. Was the Court right in its decision to review the ruling on the grounds of new developments? Can this court disturb the findings of the trial court? The Court, in the case of Mbogo v Shah (1968) 93, stated as follows:-
“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision might have been different.”
27. The trial court was required to consider the parties' circumstances as it made its decision. Makhandia, J (as he then was) in Joachim Ndaire Macharia vs. Mary Wangare Ndaire & Another Nyeri HCCA No. 63 of 2006 held that:
“The law on parental responsibility is that the same is shared, and the expenses incurred by the respondent ought to have been shared by both the appellant and the respondent…In ordering the appellant to pay Kshs 50,000.00 the court did not, under section 94 of the Children’s Act consider that the appellant had another family, his financial means had not been thoroughly investigated and the fact also that the respondent had some form of income. If the appellant earns Kshs7000.00 to 8,000.00 the justice of the case would not have demanded that he be compelled to pay Kshs. 5,000.00 per month. Therefore the sum of Kshs 50,000 and 5,000.00 respectively ordered by the learned Magistrate to be paid by the appellant were excessive having regard to the above circumstances and calls for intervention. Therefore since the expenses were Kshs 46,800/= the Kshs 50,000/= is reduced to Kshs 23,400/= and the monthly sum of Kshs 5,000/= reduced to Kshs 2,000/=.”
28. I agree with what Chitembwe, J stated in the case of AAJ vs. AA suing through MM [2018] eKLR where he noted that:
“The Court should not simply consider the interest of the children in maintenance cases and close its eyes on the needs of the parent who is expected to cater for the children...It is not the duty of the Court to burden parents with heavy maintenance expenses which visibly amounts to pampering the child.”
29. Although the court below ought not to have made the findings on the adjustment of the maintenance sums after every three years, I do not think that this prejudiced the appellant greatly to the extent suggested. This is a matter which the parties can revisit during trial.
30. The Court, in reviewing its previous decision, took into consideration
1. The fact that the divorce between the parties was concluded;
2. The fact that one child lived outside the matrimonial home and attended school in Nakuru.
31. The Court found as being sufficient new developments to award Kes 10,000.00 and ordered that whenever one child was the applicant, the Respondent would pay Kes 2,500.00 per week.
32. The Court also gave the applicant 3 months to look for a new accommodation and ordered that rent for the new house would be shared on a 50:50 basis.
33. In my view, the Court below properly exercised its discretion. The decision on review was not so bad as to justify this Court in disturbing it. In the circumstances, I decline to allow the appeal. The appeal is dismissed with no orders as to costs.
34. It is so ordered.
Dated and signed at Mombasa, this 23rd day of May 2025. Delivered virtually through Microsoft TEAMS.