(Being an appeal from the Ruling and or order of Hon. D. Milimu (SRM) issued on 18th December 2023 in Thika Children Case No. 34 of 2020)
1. This appeal arises from a ruling by the Thika Children’s Court in Case No. 34 of 2020. In that matter, the Respondent filed an application dated 9th March 2023 seeking, among other prayers, that the court:
a. Review the judgment dated 26/10/2020 and make provision for only one of the minors.
b. Declares that B.W.M (eldest minor) is not the Respondent’s biological minor and delete her particulars from the Respondent’s NHIF cover and also strike out the Respondent’s name on her birth certificate.
2. The trial court allowed the respondent’s application, reviewed its judgment of 26th October 2020, and declared that the eldest minor is not the respondent’s biological child and his details be deleted from the birth certificate and his NHIF cover.
3. Aggrieved by the ruling, the appellant filed the present appeal via a Memorandum of Appeal dated 13th February 2024. The appellant contends that the trial court made several errors in law and fact by allowing the respondent’s application dated 9th March 2023. Specifically, the appellant argues that the ruling was granted despite the strength of her own submissions, and that the review of the maintenance amount for the minor B.M.G.M failed to take into account the current economic challenges. She further asserts that the court disregarded the respondent’s long-standing parental responsibility by ordering his name to be struck off from the birth certificate of the first minor. In addition, she criticizes the court’s directive requiring the respondent to cater for the second minor’s medical needs via NHIF without proposing alternative medical support or considering the minor’s health condition. The appellant also claims that her plea for the upkeep of both minors was overlooked, and that the court did not sufficiently consider the real-life circumstances of the parties involved and the children’s welfare. She stated that the trial court failed to exercise judicial discretion properly in arriving at the impugned ruling
4. The appellant prayed that the appeal be allowed by reviewing the ruling on the Application dated 9th March 2023 and that ordered the respondent to provide for a medical scheme for the 2nd minor and reviewing the orders on upkeep. The appellant also seeks costs of the appeal.
5. The appeal was argued through written submissions. The Appellant filed submissions dated 4th November 2024 in support of the appeal. The Respondent filed submissions dated 26th November 2024 in response.
6. The Appellant reiterated the factual background of the case, stating that she and the Respondent had an intermittent relationship which led to the birth of one child, B.M.G.M. She further submitted that she is also the mother of another minor, B.W.M., for whom the Respondent had voluntarily assumed parental responsibility. Referring to Section 13 of the Children’s Act, 2022, the Appellant noted that the trial court's judgment dated 26th October 2020 had ordered the Respondent to cater for B.M.G.M.’s school fees and related expenses in line with the prevailing fee structure. However, she contended that the Respondent had failed to honor this obligation.
7. Citing Section 32 of the Children’s Act, which outlines the shared parental responsibility between both parents, the Appellant submitted that she has been solely bearing the financial burden of supporting the minor. She argued that the provisions outlined in the court’s ruling of 18th December 2023 were inadequate in meeting the needs of the minor. Consequently, she urged this court to review and revise the financial obligations of each parent in maintaining the minor, relying on Article 53(2) of the Constitution, Section 94(1) of the Children’s Act, and the authority of SKW v MWI [2015] eKLR.
8. On the issue of the removal of the eldest minor, B.W.M., from the Respondent’s records, the Appellant submitted that the Respondent had previously assumed parental responsibility for the child, which was formalized through a birth certificate identifying him as the father. Therefore, she asserted that the Respondent remains legally bound under Section 94(1) of the Children’s Act. In support of her position, she cited LAO v OK Arap M [2019] eKLR.
9. In conclusion, the Appellant urged the court to revisit and enhance the Respondent’s financial contribution toward the upkeep of both minors as sought in the Application dated 9th March 2023. Specifically, she proposed monthly allocations of Kshs 15,000 for food and Kshs 20,000 for shelter. She also requested that the Respondent personally shop for the minors’ clothing every three months, fully cater for school fees and related expenses according to the fee structure, provide for leisure and entertainment, and secure a comprehensive medical cover for both minors.
10. The Respondent addressed three key issues: (i) whether the prayers sought in the appeal should be granted, (ii) whether the appeal has merit, and (iii) who should bear the costs of the application.
11. On the first issue, the Respondent submitted that the trial court was correct in ordering the removal of the 1st minor’s name from both the birth certificate and the NHIF medical cover, as the court had been presented with credible evidence supporting this position. To reinforce his submission, the respondent relied on the case of FOA v RAO & 2 Others (Miscellaneous Civil Application E195 of 2023) [2024] KEHC 6844 (KLR) (Ruling dated 10 June 2024). He further stated that it was during a visit to the Registrar of Persons, where he intended to initiate the removal of the minor’s details, that he discovered a second birth certificate for the child issued on 29th July 2005 listing another individual, George Kagotho Waititu, as the father. The respondent denied having assumed parental responsibility for a child who was not biologically his, as alleged by the appellant. Regarding the appellant’s proposal for a comprehensive medical scheme, the respondent argued that it was financially unrealistic given that he is already supporting other children, and the NHIF cover previously provided represents the extent of what he can afford. On the prayer for review of the ruling dated 9th March 2023, the respondent submitted that such a request is premature, as the appellant had not first sought review of the ruling before the trial court that delivered the ruling as mandated under Order 45 Rule 1 of the Civil Procedure Rules.
12. In addressing the merits of the appeal, the Respondent argued that there is no evidence to demonstrate that the trial court failed to consider the Appellant’s averments in the application for maintenance and upkeep of the minors. He maintained that the court did, in fact, make a ruling on the provisions for the minors, and that the resulting obligations placed on him were more extensive than what he had requested.
13. The Respondent also cited Section 79G of the Civil Procedure Act, pointing out that the judgment being appealed was delivered on 18th December 2023, while the Memorandum of Appeal was filed on 13th February 2024 beyond the permitted time limit for filing an appeal. He therefore submitted that the appeal was filed out of time and appears to be an afterthought, and as such, should not be entertained.
14. On the issue of costs, the Respondent submitted that he is entitled to be awarded costs of the application, relying on the precedent established in DGM v EWG [2021] eKLR.
Analysis and determination
15. This court has carefully examined the grounds of appeal, the trial court's proceedings, and the respective submissions of both the Appellant and the Respondent. Before delving into the substantive issues, it is important to reiterate the role of this court as the appellate court.
16. As the first appellate court, this court is duty-bound to re-evaluate and re-assess the evidence presented in the lower court and to arrive at its own independent conclusions. However, it must remain cognizant of the fact that the trial court had the advantage of observing the demeanour of witnesses and hearing their testimonies directly. This guiding principle was articulated in the Court of Appeal decisions of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Ltd [1985] EA 424, which state that an appellate court should only interfere with a lower court’s exercise of discretion if it is satisfied that the decision was plainly wrong either due to a misdirection in law, reliance on irrelevant factors, failure to consider relevant matters, or because the decision resulted in an unjust conclusion.
17. Upon thorough review of the pleadings, the evidence adduced before the trial court, and the submissions made in this appeal, the key issues for determination are as follows:
a. Whether the appeal was filed out of time.
b. Whether the appeal is merited.
Whether the appeal was filed out of time.
18. The issue of whether this appeal was filed within the prescribed time was raised by the respondent in his submissions and must be addressed before considering the substantive grounds of appeal. The appellant did not address this issue.
19. Section 79G of the Civil Procedure Act governs the time frame for filing appeals from subordinate courts to the High Court. It provides that an appeal must be filed within thirty days from the date of the decree or order being appealed, excluding any period which the lower court certifies as necessary for preparing and delivering a copy of the decree or order. Notably, the law also allows appeals to be admitted out of time if the appellant demonstrates good and sufficient cause for the delay.
20. Order 50 Rule 4 of the Civil Procedure Rules, excludes the period from 21st December to 13th January recognized as the Christmas court vacation from the computation of time for filing pleadings and related actions.
21. The Respondent submitted that the ruling under appeal was delivered on 18th December 2023, while the Memorandum of Appeal was filed on 13th February 2024, thereby suggesting the appeal was filed out of time. Given that the ruling was delivered on 18th December 2023, the period between 21st December 2023 and 13th January 2024 should not count towards the thirty-day timeline for filing the appeal. This position is supported by the decision in Gabriel Osimbo v Chrispinus Mandare [2020] eKLR, where the Court of Appeal confirmed that Order 50 Rule 4 applies to the computation of time for appeals filed in the High Court, unless expressly stated otherwise. In addition, Section 57(b) of the Interpretation and General Provisions Act reinforces this principle by providing that if the final day of any prescribed period falls on a Sunday or a day which the court is officially closed, the next working day should be considered.
22. The Respondent contends that the appellant did not seek leave to file the appeal out of time. Upon review, I note that the impugned ruling was delivered on 18th December 2023 two days before the statutory time for filing appeals stopped counting due to the court’s Christmas recess. Therefore, the time for filing the appeal resumed on Monday, 15th January 2024. Including the two working days in December (19th and 20th), and counting from 15th January to 13th February 2024, a total of thirty-two days had elapsed. This means the appeal was filed beyond the statutory 30-day period provided under Section 79G of the Civil Procedure Act. No leave of court was sought or granted to file the appeal out of time. Consequently, the appeal was time-barred and thus filed without proper leave of court.
23. Having established that the appeal was time barred I draw guidance from the Supreme Court decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the Court held as follows:
“ No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court’s Registry. This is irregular as that document is unknown in law and the same should be struck out.
The upshot of the above is that the appeal herein is time barred and is therefore struck out. Given that this is a matter involving children I will not make any orders as to costs.
Orders accordingly.
1. This appeal arises from a ruling by the Thika Children’s Court in Case No. 34 of 2020. In that matter, the Respondent filed an application dated 9th March 2023 seeking, among other prayers, that the court:
a. Review the judgment dated 26/10/2020 and make provision for only one of the minors.
b. Declares that B.W.M (eldest minor) is not the Respondent’s biological minor and delete her particulars from the Respondent’s NHIF cover and also strike out the Respondent’s name on her birth certificate.
2. The trial court allowed the respondent’s application, reviewed its judgment of 26th October 2020, and declared that the eldest minor is not the respondent’s biological child and his details be deleted from the birth certificate and his NHIF cover.
3. Aggrieved by the ruling, the appellant filed the present appeal via a Memorandum of Appeal dated 13th February 2024. The appellant contends that the trial court made several errors in law and fact by allowing the respondent’s application dated 9th March 2023. Specifically, the appellant argues that the ruling was granted despite the strength of her own submissions, and that the review of the maintenance amount for the minor B.M.G.M failed to take into account the current economic challenges. She further asserts that the court disregarded the respondent’s long-standing parental responsibility by ordering his name to be struck off from the birth certificate of the first minor. In addition, she criticizes the court’s directive requiring the respondent to cater for the second minor’s medical needs via NHIF without proposing alternative medical support or considering the minor’s health condition. The appellant also claims that her plea for the upkeep of both minors was overlooked, and that the court did not sufficiently consider the real-life circumstances of the parties involved and the children’s welfare. She stated that the trial court failed to exercise judicial discretion properly in arriving at the impugned ruling
4. The appellant prayed that the appeal be allowed by reviewing the ruling on the Application dated 9th March 2023 and that ordered the respondent to provide for a medical scheme for the 2nd minor and reviewing the orders on upkeep. The appellant also seeks costs of the appeal.
5. The appeal was argued through written submissions. The Appellant filed submissions dated 4th November 2024 in support of the appeal. The Respondent filed submissions dated 26th November 2024 in response.
6. The Appellant reiterated the factual background of the case, stating that she and the Respondent had an intermittent relationship which led to the birth of one child, B.M.G.M. She further submitted that she is also the mother of another minor, B.W.M., for whom the Respondent had voluntarily assumed parental responsibility. Referring to Section 13 of the Children’s Act, 2022, the Appellant noted that the trial court's judgment dated 26th October 2020 had ordered the Respondent to cater for B.M.G.M.’s school fees and related expenses in line with the prevailing fee structure. However, she contended that the Respondent had failed to honor this obligation.
7. Citing Section 32 of the Children’s Act, which outlines the shared parental responsibility between both parents, the Appellant submitted that she has been solely bearing the financial burden of supporting the minor. She argued that the provisions outlined in the court’s ruling of 18th December 2023 were inadequate in meeting the needs of the minor. Consequently, she urged this court to review and revise the financial obligations of each parent in maintaining the minor, relying on Article 53(2) of the Constitution, Section 94(1) of the Children’s Act, and the authority of SKW v MWI [2015] eKLR.
8. On the issue of the removal of the eldest minor, B.W.M., from the Respondent’s records, the Appellant submitted that the Respondent had previously assumed parental responsibility for the child, which was formalized through a birth certificate identifying him as the father. Therefore, she asserted that the Respondent remains legally bound under Section 94(1) of the Children’s Act. In support of her position, she cited LAO v OK Arap M [2019] eKLR.
9. In conclusion, the Appellant urged the court to revisit and enhance the Respondent’s financial contribution toward the upkeep of both minors as sought in the Application dated 9th March 2023. Specifically, she proposed monthly allocations of Kshs 15,000 for food and Kshs 20,000 for shelter. She also requested that the Respondent personally shop for the minors’ clothing every three months, fully cater for school fees and related expenses according to the fee structure, provide for leisure and entertainment, and secure a comprehensive medical cover for both minors.
10. The Respondent addressed three key issues: (i) whether the prayers sought in the appeal should be granted, (ii) whether the appeal has merit, and (iii) who should bear the costs of the application.
11. On the first issue, the Respondent submitted that the trial court was correct in ordering the removal of the 1st minor’s name from both the birth certificate and the NHIF medical cover, as the court had been presented with credible evidence supporting this position. To reinforce his submission, the respondent relied on the case of FOA v RAO & 2 Others (Miscellaneous Civil Application E195 of 2023) [2024] KEHC 6844 (KLR) (Ruling dated 10 June 2024). He further stated that it was during a visit to the Registrar of Persons, where he intended to initiate the removal of the minor’s details, that he discovered a second birth certificate for the child issued on 29th July 2005 listing another individual, George Kagotho Waititu, as the father. The respondent denied having assumed parental responsibility for a child who was not biologically his, as alleged by the appellant. Regarding the appellant’s proposal for a comprehensive medical scheme, the respondent argued that it was financially unrealistic given that he is already supporting other children, and the NHIF cover previously provided represents the extent of what he can afford. On the prayer for review of the ruling dated 9th March 2023, the respondent submitted that such a request is premature, as the appellant had not first sought review of the ruling before the trial court that delivered the ruling as mandated under Order 45 Rule 1 of the Civil Procedure Rules.
12. In addressing the merits of the appeal, the Respondent argued that there is no evidence to demonstrate that the trial court failed to consider the Appellant’s averments in the application for maintenance and upkeep of the minors. He maintained that the court did, in fact, make a ruling on the provisions for the minors, and that the resulting obligations placed on him were more extensive than what he had requested.
13. The Respondent also cited Section 79G of the Civil Procedure Act, pointing out that the judgment being appealed was delivered on 18th December 2023, while the Memorandum of Appeal was filed on 13th February 2024 beyond the permitted time limit for filing an appeal. He therefore submitted that the appeal was filed out of time and appears to be an afterthought, and as such, should not be entertained.
14. On the issue of costs, the Respondent submitted that he is entitled to be awarded costs of the application, relying on the precedent established in DGM v EWG [2021] eKLR.
Analysis and determination
15. This court has carefully examined the grounds of appeal, the trial court's proceedings, and the respective submissions of both the Appellant and the Respondent. Before delving into the substantive issues, it is important to reiterate the role of this court as the appellate court.
16. As the first appellate court, this court is duty-bound to re-evaluate and re-assess the evidence presented in the lower court and to arrive at its own independent conclusions. However, it must remain cognizant of the fact that the trial court had the advantage of observing the demeanour of witnesses and hearing their testimonies directly. This guiding principle was articulated in the Court of Appeal decisions of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Ltd [1985] EA 424, which state that an appellate court should only interfere with a lower court’s exercise of discretion if it is satisfied that the decision was plainly wrong either due to a misdirection in law, reliance on irrelevant factors, failure to consider relevant matters, or because the decision resulted in an unjust conclusion.
17. Upon thorough review of the pleadings, the evidence adduced before the trial court, and the submissions made in this appeal, the key issues for determination are as follows:
a. Whether the appeal was filed out of time.
b. Whether the appeal is merited.
Whether the appeal was filed out of time.
18. The issue of whether this appeal was filed within the prescribed time was raised by the respondent in his submissions and must be addressed before considering the substantive grounds of appeal. The appellant did not address this issue.
19. Section 79G of the Civil Procedure Act governs the time frame for filing appeals from subordinate courts to the High Court. It provides that an appeal must be filed within thirty days from the date of the decree or order being appealed, excluding any period which the lower court certifies as necessary for preparing and delivering a copy of the decree or order. Notably, the law also allows appeals to be admitted out of time if the appellant demonstrates good and sufficient cause for the delay.
20. Order 50 Rule 4 of the Civil Procedure Rules, excludes the period from 21st December to 13th January recognized as the Christmas court vacation from the computation of time for filing pleadings and related actions.
21. The Respondent submitted that the ruling under appeal was delivered on 18th December 2023, while the Memorandum of Appeal was filed on 13th February 2024, thereby suggesting the appeal was filed out of time. Given that the ruling was delivered on 18th December 2023, the period between 21st December 2023 and 13th January 2024 should not count towards the thirty-day timeline for filing the appeal. This position is supported by the decision in Gabriel Osimbo v Chrispinus Mandare [2020] eKLR, where the Court of Appeal confirmed that Order 50 Rule 4 applies to the computation of time for appeals filed in the High Court, unless expressly stated otherwise. In addition, Section 57(b) of the Interpretation and General Provisions Act reinforces this principle by providing that if the final day of any prescribed period falls on a Sunday or a day which the court is officially closed, the next working day should be considered.
22. The Respondent contends that the appellant did not seek leave to file the appeal out of time. Upon review, I note that the impugned ruling was delivered on 18th December 2023 two days before the statutory time for filing appeals stopped counting due to the court’s Christmas recess. Therefore, the time for filing the appeal resumed on Monday, 15th January 2024. Including the two working days in December (19th and 20th), and counting from 15th January to 13th February 2024, a total of thirty-two days had elapsed. This means the appeal was filed beyond the statutory 30-day period provided under Section 79G of the Civil Procedure Act. No leave of court was sought or granted to file the appeal out of time. Consequently, the appeal was time-barred and thus filed without proper leave of court.
23. Having established that the appeal was time barred I draw guidance from the Supreme Court decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the Court held as follows:
“ No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court’s Registry. This is irregular as that document is unknown in law and the same should be struck out.
The upshot of the above is that the appeal herein is time barred and is therefore struck out. Given that this is a matter involving children I will not make any orders as to costs.
Orders accordingly.