1. Litigation involving children must never be weaponized as a tool of attrition. The dispute before this Court is a classic struggle over child maintenance that has mutated into a procedural labyrinth. It pits the fundamental rights of a minor child to survival and education against a parent's claim of limited financial means.
2. This is a first appeal arising from the Ruling of the Chief Magistrate's Court at Malindi. The decision was delivered by Hon. Joy Shiundu Wesonga (P.M.) on 14th March, 2025 in Children Case No. 3 of 2020. The appeal invokes the appellate jurisdiction of this Court to interrogate the propriety of the Trial Court's orders regarding the attachment of the Respondent's salary.
Background Facts
3. A brief background is necessary to contextualize the dispute. On 30th August, 2024, the Trial Court issued orders directing the Respondent to remit Kshs. 3,000 per month for maintenance. He was additionally ordered to pay the minor's school fees within the first two weeks of school opening. The Respondent defaulted on the school fees. The child’s education was severely jeopardized.
4. Faced with this default, the Appellant filed a Notice of Motion dated 31st January, 2025. She strictly sought the execution of the existing orders through the attachment of the Respondent's salary.
5. On 14th March, 2025, the Trial Court delivered the impugned Ruling. The Court allowed the attachment of the Respondent's salary. However, it capped the total monthly deduction for both maintenance and education at a flat sum of Kshs. 4,000.
6. The Appellant was aggrieved by the quantum awarded. She filed a Memorandum of Appeal dated 7th April, 2025. The grounds of appeal are reproduced as follows:
1. THAT the Hon. Magistrate erred in law and in fact by failing to consider and appreciate that the award of Kshs. 4,000.00 to cater for general maintenance and towards payment of school fees was too low to meet the intended obligations.
2. THAT the Hon. Magistrate erred in law and in fact by failing to consider and appreciate that the Appellant had given enough evidence that the school fees for the minor was Kshs. 8,500 per term and the award of Kshs. 4,000.00 towards maintenance and school fees was unreasonable.
3. THAT the Hon. Magistrate erred in law and in fact by failing to consider and appreciate that the award of Kshs. 4,000.00 would lead to the Appellant topping up the Respondent's responsibility while she took care of her shared responsibility on her own exclusively.
4. THAT the Hon. Magistrate erred in law and in fact by failing to appreciate that the appellant had given enough evidence that the Respondent had enough income to cater for the minor's maintenance and school fees in full as is required by the shared responsibility in raising the minor.
7. The reliefs sought in the Memorandum of Appeal are as follows:
1. That the Ruling of Hon. JOY SHIUNDU WESONGA, Principal Magistrate sitting at Malindi delivered on 14th March 2025 be varied and reviewed to enhance the amount to be attached from the Respondent's salary to Kshs. 7,000.00 per month.
Submissions by the Parties
8. The Appellant filed written submissions on 11th June, 2025. She argued that her application before the Trial Court was strictly for execution by salary attachment, not for a review of the substantive orders.
9. She submitted that by ordering a flat deduction of Kshs. 4,000, the Trial Court impermissibly altered the prior unvacated order of 30th August, 2024. She mathematically demonstrated that school fees of Kshs. 8,000 per term equates to Kshs. 2,667 per month. When added to the Kshs. 3,000 upkeep, the minimum attachment should have been Kshs. 5,667.
10. The Appellant relied on the authority of Muchiri v Boresha Maisha Self Help Group (Civil Appeal 48 of 2022) [2024] KEHC 2488 (KLR). She cited this to anchor the legal principle that a Court is strictly bound by the parties' pleadings and cannot grant unpleaded reliefs.
11. The Respondent filed submissions dated 4th July, 2025. He opposed the appeal. He argued that the Appellant failed to declare her own income as required by law.
12. The Respondent contended that the Trial Court's award of Kshs. 4,000 was fair. He relied on his payslip, reflecting a net monthly pay of Kshs. 11,664.10. He submitted that the Kshs. 4,000 deductions strictly align with the standard one-third (1/3) salary attachment rule.
13. Furthermore, the Respondent pleaded competing financial obligations. He stated he supports another family of five, including a child suffering from cerebral palsy who requires specialized medical care. He argued that maintenance must not exceed a parent's financial reach.
Issues for Determination
14. The Court has reviewed the pleadings, the record of appeal, and the rival submissions filed by the parties. The Court frames the following issues for determination:
(a) Whether the Trial Court erred in law by suo motu varying the existing maintenance orders during an application strictly for execution.
(b) Whether this Appellate Court should impeach the decision of the Trial Court.
Analysis
15. This is a first appeal. At the same time, this Court reminds itself that this is an interlocutory Appeal. The dispute before the Children’s Court is yet to be fully heard and determined. Therefore, in this Appeal the Court will restrain itself from making any conclusions or determinations that may poison the mind of the Trial Court below.
16. The duty of a first Appellate Court is well settled in this jurisdiction.
17. The foundational jurisprudence is found in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. The Court of Appeal articulated this duty as follows:
"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.".
18. This Appellate Court is not bound to blindly rubber-stamp the Trial Court's findings. It must subject the entire evidentiary record to a fresh and exhaustive scrutiny.
(a) Whether the Trial Court erred in law by suo motu varying the existing maintenance orders during an application strictly for execution.
19. On the first issue, the correct law regarding civil procedure and the variation of maintenance orders is unequivocal. Section 116(3) of the Children Act 2022 permits the variation of maintenance orders only upon proof of a significant change of circumstances. Crucially, this requires a formal application by a party.
20. The Appellant’s Notice of Motion dated 31st January, 2025 was purely an enforcement mechanism. It sought a salary attachment to cure the Respondent's defaults. Neither party formally applied to review or vary the substantive amounts ordered on 30th August, 2024.
21. The Trial Court erroneously collapsed the dual obligations—Kshs. 3,000 for upkeep and the separate payment of school fees—into a single, reduced monthly attachment of Kshs. 4,000. This action constituted a suo motu downward review of the maintenance order.
22. As correctly cited by the Appellant, a Court cannot rewrite pleadings. It cannot grant reliefs that were never sought. The Trial Court misdirected itself procedurally. The Appellate Court must impeach the decision of the Trial Court on this procedural ground.
(b) Whether this Appellate Court should impeach the decision of the Trial Court.
23. On the second issue, the Court re-evaluates the evidence. Can the challenge stand? Yes. The Respondent's payslip shows a gross earning of Kshs. 29,860.00. The net pay is reduced to Kshs. 11,664.10 largely due to voluntary SACCO loan recoveries taking up over Kshs. 9,300.
24. Jurisprudence dictates that the constitutional duty to maintain a child supersedes voluntary commercial debts. A parent cannot shield their income behind SACCO loans to defeat a child's right to survival and education. In JMR v RNM [2022] KEHC 27021 (KLR), the Court held that a parent's subjective sense of what they can afford does not displace the best interests of the child.
25. The Appellant provided evidence that school fees stand at Kshs. 8,000 to Kshs. 8,500 per term. Broken down monthly, this is approximately Kshs. 2,667 to Kshs. 2,833. When added to the Kshs. 3,000 monthly upkeep, the minor's established financial need from the Respondent is near Kshs. 5,667 per month.
26. The Trial Court’s award of Kshs. 4,000 leaves a monthly deficit. It forces the Appellant to shoulder a disproportionate burden, contrary to the interim orders granted by the Trial Court on 30th August, 2024. That order has neither been reviewed nor set aside by way of an Appeal to this Court.
27. Exercising the mandate under Selle v Associated Motor Boat, this Appellate Court reaches a different outcome. The evidence demonstrates that Kshs. 4,000 is insufficient to cover the Respondent's established portion of school fees and upkeep.
28. The Appellant seeks a variation to Kshs. 7,000 per month. The Court must balance this against the Respondent's gross income and his unrefuted evidence of maintaining another child with severe medical needs. A balance must be struck to ensure the maintenance order does not become financially ruinous, yet fully safeguards the minor's welfare.
29. Mathematical precision based on the 30th August, 2024 order dictates a combined monthly requirement of Kshs. 5,667. Rounding this figure to Kshs. 6,000 per month is equitable, proportionate, and strictly within the Respondent's means when voluntary loan deductions are properly subordinated to his parental duties.
30. This sum respects the limits of the one-third rule of the Respondent's actual gross disposable income. It ensures the minor remains in school without the Appellant resorting to constant litigation.
31. The challenge mounted in the Memorandum of Appeal succeeds. The Trial Court erred in varying the unvacated orders suo motu and in capping the attachment at an unreasonably low figure.
32. As to costs, the Court notes that the same ordinarily follow the event and lie at the discretion of this Court. The Court reminds itself that it has a duty to save on costs. In matters of this nature the Court would rather promote harmony and reconciliation between the parties that will be co-parenting for a considerable period of time in the future. In matters such as this, there is no winner or loser. The Court bends to accommodate and promote the best interests of the child. In exercise of its discretion, the Court directs that each party bears its own costs of this Appeal.
Determination
33. Consequently, the Court partially allows the Appeal and makes the following orders:
(a) The Appeal is HEREBY partially allowed.
(b) That the Ruling of Hon. JOY SHIUNDU WESONGA, Principal Magistrate sitting at Malindi delivered on 14th March, 2025 is HEREBY varied and reviewed to enhance the amount to be attached from the Respondent's salary to Kshs. 6,000.00 per month.
(c) This sum shall cater concurrently for the minor's monthly upkeep and school fees.
(d) The Respondent's employer is directed to remit the said sum directly to the Appellant's specified bank account by the 5th day of every month.
(e) Each party shall bear their own costs of this Appeal to foster future co-parenting harmony.
34. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
N/A for Shila Baraka, the Appellant acting in person.
Miss Mona for the Respondent.
Mr. Mohamed - Court Assistant.
2. This is a first appeal arising from the Ruling of the Chief Magistrate's Court at Malindi. The decision was delivered by Hon. Joy Shiundu Wesonga (P.M.) on 14th March, 2025 in Children Case No. 3 of 2020. The appeal invokes the appellate jurisdiction of this Court to interrogate the propriety of the Trial Court's orders regarding the attachment of the Respondent's salary.
Background Facts
3. A brief background is necessary to contextualize the dispute. On 30th August, 2024, the Trial Court issued orders directing the Respondent to remit Kshs. 3,000 per month for maintenance. He was additionally ordered to pay the minor's school fees within the first two weeks of school opening. The Respondent defaulted on the school fees. The child’s education was severely jeopardized.
4. Faced with this default, the Appellant filed a Notice of Motion dated 31st January, 2025. She strictly sought the execution of the existing orders through the attachment of the Respondent's salary.
5. On 14th March, 2025, the Trial Court delivered the impugned Ruling. The Court allowed the attachment of the Respondent's salary. However, it capped the total monthly deduction for both maintenance and education at a flat sum of Kshs. 4,000.
6. The Appellant was aggrieved by the quantum awarded. She filed a Memorandum of Appeal dated 7th April, 2025. The grounds of appeal are reproduced as follows:
1. THAT the Hon. Magistrate erred in law and in fact by failing to consider and appreciate that the award of Kshs. 4,000.00 to cater for general maintenance and towards payment of school fees was too low to meet the intended obligations.
2. THAT the Hon. Magistrate erred in law and in fact by failing to consider and appreciate that the Appellant had given enough evidence that the school fees for the minor was Kshs. 8,500 per term and the award of Kshs. 4,000.00 towards maintenance and school fees was unreasonable.
3. THAT the Hon. Magistrate erred in law and in fact by failing to consider and appreciate that the award of Kshs. 4,000.00 would lead to the Appellant topping up the Respondent's responsibility while she took care of her shared responsibility on her own exclusively.
4. THAT the Hon. Magistrate erred in law and in fact by failing to appreciate that the appellant had given enough evidence that the Respondent had enough income to cater for the minor's maintenance and school fees in full as is required by the shared responsibility in raising the minor.
7. The reliefs sought in the Memorandum of Appeal are as follows:
1. That the Ruling of Hon. JOY SHIUNDU WESONGA, Principal Magistrate sitting at Malindi delivered on 14th March 2025 be varied and reviewed to enhance the amount to be attached from the Respondent's salary to Kshs. 7,000.00 per month.
Submissions by the Parties
8. The Appellant filed written submissions on 11th June, 2025. She argued that her application before the Trial Court was strictly for execution by salary attachment, not for a review of the substantive orders.
9. She submitted that by ordering a flat deduction of Kshs. 4,000, the Trial Court impermissibly altered the prior unvacated order of 30th August, 2024. She mathematically demonstrated that school fees of Kshs. 8,000 per term equates to Kshs. 2,667 per month. When added to the Kshs. 3,000 upkeep, the minimum attachment should have been Kshs. 5,667.
10. The Appellant relied on the authority of Muchiri v Boresha Maisha Self Help Group (Civil Appeal 48 of 2022) [2024] KEHC 2488 (KLR). She cited this to anchor the legal principle that a Court is strictly bound by the parties' pleadings and cannot grant unpleaded reliefs.
11. The Respondent filed submissions dated 4th July, 2025. He opposed the appeal. He argued that the Appellant failed to declare her own income as required by law.
12. The Respondent contended that the Trial Court's award of Kshs. 4,000 was fair. He relied on his payslip, reflecting a net monthly pay of Kshs. 11,664.10. He submitted that the Kshs. 4,000 deductions strictly align with the standard one-third (1/3) salary attachment rule.
13. Furthermore, the Respondent pleaded competing financial obligations. He stated he supports another family of five, including a child suffering from cerebral palsy who requires specialized medical care. He argued that maintenance must not exceed a parent's financial reach.
Issues for Determination
14. The Court has reviewed the pleadings, the record of appeal, and the rival submissions filed by the parties. The Court frames the following issues for determination:
(a) Whether the Trial Court erred in law by suo motu varying the existing maintenance orders during an application strictly for execution.
(b) Whether this Appellate Court should impeach the decision of the Trial Court.
Analysis
15. This is a first appeal. At the same time, this Court reminds itself that this is an interlocutory Appeal. The dispute before the Children’s Court is yet to be fully heard and determined. Therefore, in this Appeal the Court will restrain itself from making any conclusions or determinations that may poison the mind of the Trial Court below.
16. The duty of a first Appellate Court is well settled in this jurisdiction.
17. The foundational jurisprudence is found in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. The Court of Appeal articulated this duty as follows:
"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.".
18. This Appellate Court is not bound to blindly rubber-stamp the Trial Court's findings. It must subject the entire evidentiary record to a fresh and exhaustive scrutiny.
(a) Whether the Trial Court erred in law by suo motu varying the existing maintenance orders during an application strictly for execution.
19. On the first issue, the correct law regarding civil procedure and the variation of maintenance orders is unequivocal. Section 116(3) of the Children Act 2022 permits the variation of maintenance orders only upon proof of a significant change of circumstances. Crucially, this requires a formal application by a party.
20. The Appellant’s Notice of Motion dated 31st January, 2025 was purely an enforcement mechanism. It sought a salary attachment to cure the Respondent's defaults. Neither party formally applied to review or vary the substantive amounts ordered on 30th August, 2024.
21. The Trial Court erroneously collapsed the dual obligations—Kshs. 3,000 for upkeep and the separate payment of school fees—into a single, reduced monthly attachment of Kshs. 4,000. This action constituted a suo motu downward review of the maintenance order.
22. As correctly cited by the Appellant, a Court cannot rewrite pleadings. It cannot grant reliefs that were never sought. The Trial Court misdirected itself procedurally. The Appellate Court must impeach the decision of the Trial Court on this procedural ground.
(b) Whether this Appellate Court should impeach the decision of the Trial Court.
23. On the second issue, the Court re-evaluates the evidence. Can the challenge stand? Yes. The Respondent's payslip shows a gross earning of Kshs. 29,860.00. The net pay is reduced to Kshs. 11,664.10 largely due to voluntary SACCO loan recoveries taking up over Kshs. 9,300.
24. Jurisprudence dictates that the constitutional duty to maintain a child supersedes voluntary commercial debts. A parent cannot shield their income behind SACCO loans to defeat a child's right to survival and education. In JMR v RNM [2022] KEHC 27021 (KLR), the Court held that a parent's subjective sense of what they can afford does not displace the best interests of the child.
25. The Appellant provided evidence that school fees stand at Kshs. 8,000 to Kshs. 8,500 per term. Broken down monthly, this is approximately Kshs. 2,667 to Kshs. 2,833. When added to the Kshs. 3,000 monthly upkeep, the minor's established financial need from the Respondent is near Kshs. 5,667 per month.
26. The Trial Court’s award of Kshs. 4,000 leaves a monthly deficit. It forces the Appellant to shoulder a disproportionate burden, contrary to the interim orders granted by the Trial Court on 30th August, 2024. That order has neither been reviewed nor set aside by way of an Appeal to this Court.
27. Exercising the mandate under Selle v Associated Motor Boat, this Appellate Court reaches a different outcome. The evidence demonstrates that Kshs. 4,000 is insufficient to cover the Respondent's established portion of school fees and upkeep.
28. The Appellant seeks a variation to Kshs. 7,000 per month. The Court must balance this against the Respondent's gross income and his unrefuted evidence of maintaining another child with severe medical needs. A balance must be struck to ensure the maintenance order does not become financially ruinous, yet fully safeguards the minor's welfare.
29. Mathematical precision based on the 30th August, 2024 order dictates a combined monthly requirement of Kshs. 5,667. Rounding this figure to Kshs. 6,000 per month is equitable, proportionate, and strictly within the Respondent's means when voluntary loan deductions are properly subordinated to his parental duties.
30. This sum respects the limits of the one-third rule of the Respondent's actual gross disposable income. It ensures the minor remains in school without the Appellant resorting to constant litigation.
31. The challenge mounted in the Memorandum of Appeal succeeds. The Trial Court erred in varying the unvacated orders suo motu and in capping the attachment at an unreasonably low figure.
32. As to costs, the Court notes that the same ordinarily follow the event and lie at the discretion of this Court. The Court reminds itself that it has a duty to save on costs. In matters of this nature the Court would rather promote harmony and reconciliation between the parties that will be co-parenting for a considerable period of time in the future. In matters such as this, there is no winner or loser. The Court bends to accommodate and promote the best interests of the child. In exercise of its discretion, the Court directs that each party bears its own costs of this Appeal.
Determination
33. Consequently, the Court partially allows the Appeal and makes the following orders:
(a) The Appeal is HEREBY partially allowed.
(b) That the Ruling of Hon. JOY SHIUNDU WESONGA, Principal Magistrate sitting at Malindi delivered on 14th March, 2025 is HEREBY varied and reviewed to enhance the amount to be attached from the Respondent's salary to Kshs. 6,000.00 per month.
(c) This sum shall cater concurrently for the minor's monthly upkeep and school fees.
(d) The Respondent's employer is directed to remit the said sum directly to the Appellant's specified bank account by the 5th day of every month.
(e) Each party shall bear their own costs of this Appeal to foster future co-parenting harmony.
34. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
N/A for Shila Baraka, the Appellant acting in person.
Miss Mona for the Respondent.
Mr. Mohamed - Court Assistant.