' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
APPELLATE DIVISION
FAMILY APPEAL (HCFA) NO. E001 OF 2024
MOHAMMED ROBA DIMA………..………………….APPELLANT
VERSUS
SAFIA ABDI DUBA………………..…………………RESPONDENT
(Being an appeal from the judgment of Hon S.K AROME (Mr) Principal Magistrate delivered on 15 th May 2024 in the Marsabit Children’s Case No. E009 of 2023)
ARISING FROM
SAFIA ABDI DUBA…………………………………………PLAINTIFF
VERSUS
MOHAMMED ROBA DIMA…………………..………DEFENDANT
JUDGMENT
Introduction
This appeal arises from the judgment/decree of Honourable S.K Arome Principal Magistrate delivered on 15 th May 2024 in Marsabit Children’s case No. E009 of 2023 , where he awarded both parties joint and legal custody of their children and further directed the Appellant to;
Pay school fees for all minors including M.M as per the fee structure and pay school related expenses;
Pay NHIF Medical cover where all the minors will be listed as beneficiaries;
Provide Ksh8,000/= for food per month, which sum was to be sent to the plaintiff via Mpesa/bank deposit.
Similarly, the respondent herein was directed to open a children’s account where she would deposit a sum of Kshs. 5,000/= monthly for food, and would also include her children under her NHIF cover, since she was in gainful employment.
Pleadings
The Respondent instituted this suit against the Appellant seeking for orders to compel him to provide basic needs for his five children, which she costed at Kshs. 40,000/= per month. The Appellant filed his statement of defence, where he raised a preliminary objection to the effect that two of their children (S.M and A .M) were both adults and had not authorized the respondent to sue on their behalf. Secondly, he stated that one child (M.M) was not his biological child and demanded that DNA test be carried out to ascertain his paternity. He also acknowledged that he had a responsibility over his children and detailed how he had carried out his parental responsibility.
During the hearing of the suit, both parties testified and maintain the averments made in their pleadings and witness statement. The trial Magistrate considered the same, the submissions filed and determined the suit as outlined above.
The appellant being wholly dissatisfied by the said judgment did file his memorandum of appeal dated 13 th June 2024 and raised the following grounds of appeal;
THAT the learned Magistrate erred in law in failing to determine that the plaintiff lacked locus standi to initiate a suit on behalf of S.M and A.M, who are adults and capable to sue on their own names without their written authority.
THAT the Honourable Magistrate erred in fact and in law by failing to order for DNA to be conducted to determine the paternity of M.M despite the same being expressly contested and pleaded and proceeded to order the Defendant to maintain the minor despite the issue being the cause of divorce between the parties
THAT the learned Magistrate erred in law and in fact in ordering the defendant to remain in our matrimonial house despite the parties being divorced and thus making a determination on matrimonial property in a children’s matter.
THAT the learned trial Magistrate erred in law and in fact by issuing ultra vires orders by determining the specific place the minors should stay instead of issuing an order for provision of shelter generally.
THAT the learned Magistrate erred in fact and in law by failing to record the oral evidence given by the defendant and in fact proceeded to record evidence contrary to the testimony given by the defendant thus misrepresenting the evidence of the defendant.
THAT the Honourable Magistrate erred in law and in fact by relying on evidence not given in open court and which were a misrepresentation of the actual evidence given in court to make a determination on the case this occasioning a miscarriage of justice on the defendant.
THAT the Honourable Magistrate erred in law an in fact by failing to appreciate the totality of the evidence before him making a determination without considering the responsibilities and financial abilities of the defendant vis a vis that of the plaintiff thus placing an impossible responsibility on the Appellant.
THAT the Honourable Magistrate erred in law and fact by ordering the plaintiff to open a children’s account which she is in charge of and ordering her to make deposits therein, which is impractical and akin to the plaintiff paying herself in order to give an appearance of a balanced parental responsibility whereas the judgment is completely unfavourable to the Defendant
Analysis and Determination
I have considered this appeal and the impugned Judgment. I have also considered the submissions filed, the decisions relied on, and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123).
A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph, AIR 1969 Kerala 316.
The central issue for determination in this Appeal is whether;
The trial Magistrate erred in failing to determine that the respondent lacked locus standi to sue on behalf of he children who were of Age.
The trial Magistrate erred in failing to order that a DNA test be conducted on child M.M to ascertain his paternity.
The trial court erred in ordering the respondent to remain in the matrimonial home, yet the parties were divorced.
There was misdirection and lack of appreciation of the proceedings recorded and evidence lead, leading to wrong findings by the trial court.
Who should bear the costs of this suit.
On the first issue of locus standi, the trial court in its considered judgment only made provision for the minor children , thus issue of whether or not the respondent could litigate on behalf of the two adult children was rendered mute. The Appellant was also categorical in his witness statement and evidence in chief that he had consistently undertaken parental responsibility over the said children and purposed to continue to do so.
In particular, he testified that, S.M his 1 st born daughter was currently a first-year student at KMTC -Kitui Campus and he had assumed full responsibility for her education with no assistance from the respondent and similarly, A.M his second born son, was residing with him at Dakana and had just complete his secondary schooling at Kisasi High School. His proactive participation in his elder children’s lives is commendable and applauded. The Appeal on this ground thus fails as nothing in the trial court finding turns on the said issue.
Secondly, the Appellant faulted the trial for failing to order for DNA test to determine the paternity of M.M. The appellant in his statement of defence did raise this issue and stated that it was the underlying cause of their divorce. Be that as it may he changed tune and in his evidence in chief stated as follows;
“……….. we are blessed with 5 children…….. I will provide shelter, school fees and school related expenses, medical cover.”
“…………. I have paid food and school fees for S.M and M.M I will pay school fee and school related expenses. My wife divorced me and she said she had moved on. She has another man……………………….. I will provide for the children, whether they are mine or not.”
Our constitutional and statutory law upholds the rights of children as paramount and that their best interest must be given priority. If indeed the Appellant was serious about having a DNA test conducted, he would have formally made an application for the same to be conducted before the suit was heard, but opted not to do so. His evidence in court also clearly brought out the fact that he accepted all his five children, including the last born who is adopted and undertook to provide parental responsibility, which is commendable. He cannot then, be heard to complain otherwise.
Further even in this Appeal, the Appellant is represented by counsel, and if indeed the said issue was burning, they would have still moved court to allow them adduce additional evidence and prayed for the said DNA test to be done. The Appellant again opted not do so. He must then forever hold his peace and continue to prayer for Allah’s continuous blessings as he positively undertakes his parental responsibilities.
The third issue raised was that the trial Magistrate erred by ordering the respondent to remain in the matrimonial home despite, uncontroverted evidence being led that the parties were already divorced. I have reviewed the finding made on this issue and confirm that no order was made directing the respondent to remain in their matrimonial home.
The trial courts finding was that,
“the family house at Majengo shall remain a family house where the children shall reside and call home. The house shall not be sold, leased off and/or disposed of in any other way as to deprive children shelter which is their basic need.”
The Appellant in his witness statement at paragraph 9 did depone that;
“That all the children including the plaintiff are currently residing in his house at Majengo hence he has provided shelter for them.”
I do find and hold that there was no error in the trial Magistrate holding on this issue as it ties up and aligns with the Appellants own pleadings, that the matrimonial property be utilized as shelter for their children. The Appellant also did not plead and/or offer alternative shelter for his children and cannot at this Appeal stage raise this as an issue for consideration, when the trial court was not asked to consider the same.
The trial court was also clear at paragraph 5 of the judgment, that that this arrangement would hold until either party files a matrimonial cause to determine how to share their matrimonial property. It is therefore not true that the trial court made a final determination regarding this property as alleged. This ground of Appeal therefore fails.
The Appellant also faulted the trial court for ordering that the respondent to open an account where she would deposit Kshs. 5,000/= monthly to support her children, while ordering the Appellant to pay Kshs. 8,000/= for maintenance for the minor children, yet the Appellant bore more responsibility of taking their children to school.
The constitutional and legal matrix in our jurisdiction upholds the rights of children as paramount. Article 53 (1) (e) and 2 of The Constitution provide that:
1) Every child has the right:
(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.
(2) A child’s best interests are of paramount importance in every matter concerning the child.
Further, Section 8 (1) and (2) of the Children Act, 2022
provides that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
2. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
safeguard and promote the rights and welfare of the child;
conserve and promote the welfare of the child; and
secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
The law places equal responsibility on both parents to provide for their children. There is no justification given as to why the
respondent should provide Kshs. 5000/= , while the Appellant was to provide Kshs. 8,000/= towards their minor children up keep. In so finding, the trial court made an error, which has to be corrected.
Unfortunately, both parties did not file affidavit of means to enable the court deduce what would be their fair share of contribution. Under the circumstance the best I can do is to average the two sums and do find that on monthly basis both parties will provide Ksh. 6,500/= towards feeding of the minor children, which amount either way is fair and not burdensome on the Appellant given the other family responsibilities he undertakes.
The final issue raised was that the trial Magistrate misrepresented the evidence and testimony of the Appellant. A review of the pleadings, witness statements filed and the proceedings do not support this contention and to my mind is raised as an afterthought to muddle the water and remains an averment which is not proved.
D. Disposition
This Appeal partially succeeds only to the extent that both parties will contribute Ksh. 6,500/= monthly towards maintenance of their minor children.
All other grounds of Appeal fail and are dismissed.
Each party will bear their own costs of this Appeal given that it is a family matter.
It is so ordered .
DATED , SIGNED and DEVLIVERED virtually at Marsabit this……. day of NOVEMBER, 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this …………….day of NOVEMBER, 2025
In the presence of : -
………………………………………………………..Appellant
……………………………………………………….Respondent
……………………………………………………….Court Assistant
'
IN THE HIGH COURT OF KENYA AT MARSABIT
APPELLATE DIVISION
FAMILY APPEAL (HCFA) NO. E001 OF 2024
MOHAMMED ROBA DIMA………..………………….APPELLANT
VERSUS
SAFIA ABDI DUBA………………..…………………RESPONDENT
(Being an appeal from the judgment of Hon S.K AROME (Mr) Principal Magistrate delivered on 15 th May 2024 in the Marsabit Children’s Case No. E009 of 2023)
ARISING FROM
SAFIA ABDI DUBA…………………………………………PLAINTIFF
VERSUS
MOHAMMED ROBA DIMA…………………..………DEFENDANT
JUDGMENT
Introduction
This appeal arises from the judgment/decree of Honourable S.K Arome Principal Magistrate delivered on 15 th May 2024 in Marsabit Children’s case No. E009 of 2023 , where he awarded both parties joint and legal custody of their children and further directed the Appellant to;
Pay school fees for all minors including M.M as per the fee structure and pay school related expenses;
Pay NHIF Medical cover where all the minors will be listed as beneficiaries;
Provide Ksh8,000/= for food per month, which sum was to be sent to the plaintiff via Mpesa/bank deposit.
Similarly, the respondent herein was directed to open a children’s account where she would deposit a sum of Kshs. 5,000/= monthly for food, and would also include her children under her NHIF cover, since she was in gainful employment.
Pleadings
The Respondent instituted this suit against the Appellant seeking for orders to compel him to provide basic needs for his five children, which she costed at Kshs. 40,000/= per month. The Appellant filed his statement of defence, where he raised a preliminary objection to the effect that two of their children (S.M and A .M) were both adults and had not authorized the respondent to sue on their behalf. Secondly, he stated that one child (M.M) was not his biological child and demanded that DNA test be carried out to ascertain his paternity. He also acknowledged that he had a responsibility over his children and detailed how he had carried out his parental responsibility.
During the hearing of the suit, both parties testified and maintain the averments made in their pleadings and witness statement. The trial Magistrate considered the same, the submissions filed and determined the suit as outlined above.
The appellant being wholly dissatisfied by the said judgment did file his memorandum of appeal dated 13 th June 2024 and raised the following grounds of appeal;
THAT the learned Magistrate erred in law in failing to determine that the plaintiff lacked locus standi to initiate a suit on behalf of S.M and A.M, who are adults and capable to sue on their own names without their written authority.
THAT the Honourable Magistrate erred in fact and in law by failing to order for DNA to be conducted to determine the paternity of M.M despite the same being expressly contested and pleaded and proceeded to order the Defendant to maintain the minor despite the issue being the cause of divorce between the parties
THAT the learned Magistrate erred in law and in fact in ordering the defendant to remain in our matrimonial house despite the parties being divorced and thus making a determination on matrimonial property in a children’s matter.
THAT the learned trial Magistrate erred in law and in fact by issuing ultra vires orders by determining the specific place the minors should stay instead of issuing an order for provision of shelter generally.
THAT the learned Magistrate erred in fact and in law by failing to record the oral evidence given by the defendant and in fact proceeded to record evidence contrary to the testimony given by the defendant thus misrepresenting the evidence of the defendant.
THAT the Honourable Magistrate erred in law and in fact by relying on evidence not given in open court and which were a misrepresentation of the actual evidence given in court to make a determination on the case this occasioning a miscarriage of justice on the defendant.
THAT the Honourable Magistrate erred in law an in fact by failing to appreciate the totality of the evidence before him making a determination without considering the responsibilities and financial abilities of the defendant vis a vis that of the plaintiff thus placing an impossible responsibility on the Appellant.
THAT the Honourable Magistrate erred in law and fact by ordering the plaintiff to open a children’s account which she is in charge of and ordering her to make deposits therein, which is impractical and akin to the plaintiff paying herself in order to give an appearance of a balanced parental responsibility whereas the judgment is completely unfavourable to the Defendant
Analysis and Determination
I have considered this appeal and the impugned Judgment. I have also considered the submissions filed, the decisions relied on, and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123).
A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph, AIR 1969 Kerala 316.
The central issue for determination in this Appeal is whether;
The trial Magistrate erred in failing to determine that the respondent lacked locus standi to sue on behalf of he children who were of Age.
The trial Magistrate erred in failing to order that a DNA test be conducted on child M.M to ascertain his paternity.
The trial court erred in ordering the respondent to remain in the matrimonial home, yet the parties were divorced.
There was misdirection and lack of appreciation of the proceedings recorded and evidence lead, leading to wrong findings by the trial court.
Who should bear the costs of this suit.
On the first issue of locus standi, the trial court in its considered judgment only made provision for the minor children , thus issue of whether or not the respondent could litigate on behalf of the two adult children was rendered mute. The Appellant was also categorical in his witness statement and evidence in chief that he had consistently undertaken parental responsibility over the said children and purposed to continue to do so.
In particular, he testified that, S.M his 1 st born daughter was currently a first-year student at KMTC -Kitui Campus and he had assumed full responsibility for her education with no assistance from the respondent and similarly, A.M his second born son, was residing with him at Dakana and had just complete his secondary schooling at Kisasi High School. His proactive participation in his elder children’s lives is commendable and applauded. The Appeal on this ground thus fails as nothing in the trial court finding turns on the said issue.
Secondly, the Appellant faulted the trial for failing to order for DNA test to determine the paternity of M.M. The appellant in his statement of defence did raise this issue and stated that it was the underlying cause of their divorce. Be that as it may he changed tune and in his evidence in chief stated as follows;
“……….. we are blessed with 5 children…….. I will provide shelter, school fees and school related expenses, medical cover.”
“…………. I have paid food and school fees for S.M and M.M I will pay school fee and school related expenses. My wife divorced me and she said she had moved on. She has another man……………………….. I will provide for the children, whether they are mine or not.”
Our constitutional and statutory law upholds the rights of children as paramount and that their best interest must be given priority. If indeed the Appellant was serious about having a DNA test conducted, he would have formally made an application for the same to be conducted before the suit was heard, but opted not to do so. His evidence in court also clearly brought out the fact that he accepted all his five children, including the last born who is adopted and undertook to provide parental responsibility, which is commendable. He cannot then, be heard to complain otherwise.
Further even in this Appeal, the Appellant is represented by counsel, and if indeed the said issue was burning, they would have still moved court to allow them adduce additional evidence and prayed for the said DNA test to be done. The Appellant again opted not do so. He must then forever hold his peace and continue to prayer for Allah’s continuous blessings as he positively undertakes his parental responsibilities.
The third issue raised was that the trial Magistrate erred by ordering the respondent to remain in the matrimonial home despite, uncontroverted evidence being led that the parties were already divorced. I have reviewed the finding made on this issue and confirm that no order was made directing the respondent to remain in their matrimonial home.
The trial courts finding was that,
“the family house at Majengo shall remain a family house where the children shall reside and call home. The house shall not be sold, leased off and/or disposed of in any other way as to deprive children shelter which is their basic need.”
The Appellant in his witness statement at paragraph 9 did depone that;
“That all the children including the plaintiff are currently residing in his house at Majengo hence he has provided shelter for them.”
I do find and hold that there was no error in the trial Magistrate holding on this issue as it ties up and aligns with the Appellants own pleadings, that the matrimonial property be utilized as shelter for their children. The Appellant also did not plead and/or offer alternative shelter for his children and cannot at this Appeal stage raise this as an issue for consideration, when the trial court was not asked to consider the same.
The trial court was also clear at paragraph 5 of the judgment, that that this arrangement would hold until either party files a matrimonial cause to determine how to share their matrimonial property. It is therefore not true that the trial court made a final determination regarding this property as alleged. This ground of Appeal therefore fails.
The Appellant also faulted the trial court for ordering that the respondent to open an account where she would deposit Kshs. 5,000/= monthly to support her children, while ordering the Appellant to pay Kshs. 8,000/= for maintenance for the minor children, yet the Appellant bore more responsibility of taking their children to school.
The constitutional and legal matrix in our jurisdiction upholds the rights of children as paramount. Article 53 (1) (e) and 2 of The Constitution provide that:
1) Every child has the right:
(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.
(2) A child’s best interests are of paramount importance in every matter concerning the child.
Further, Section 8 (1) and (2) of the Children Act, 2022
provides that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
2. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
safeguard and promote the rights and welfare of the child;
conserve and promote the welfare of the child; and
secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
The law places equal responsibility on both parents to provide for their children. There is no justification given as to why the
respondent should provide Kshs. 5000/= , while the Appellant was to provide Kshs. 8,000/= towards their minor children up keep. In so finding, the trial court made an error, which has to be corrected.
Unfortunately, both parties did not file affidavit of means to enable the court deduce what would be their fair share of contribution. Under the circumstance the best I can do is to average the two sums and do find that on monthly basis both parties will provide Ksh. 6,500/= towards feeding of the minor children, which amount either way is fair and not burdensome on the Appellant given the other family responsibilities he undertakes.
The final issue raised was that the trial Magistrate misrepresented the evidence and testimony of the Appellant. A review of the pleadings, witness statements filed and the proceedings do not support this contention and to my mind is raised as an afterthought to muddle the water and remains an averment which is not proved.
D. Disposition
This Appeal partially succeeds only to the extent that both parties will contribute Ksh. 6,500/= monthly towards maintenance of their minor children.
All other grounds of Appeal fail and are dismissed.
Each party will bear their own costs of this Appeal given that it is a family matter.
It is so ordered .
DATED , SIGNED and DEVLIVERED virtually at Marsabit this……. day of NOVEMBER, 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this …………….day of NOVEMBER, 2025
In the presence of : -
………………………………………………………..Appellant
……………………………………………………….Respondent
……………………………………………………….Court Assistant
'