' Introduction
1. This appeal arises from the ruling of Hon. M. Nyigei (Chief Magistrate, Kisumu) delivered on 29th August 2024 in Kisumu CMC Children’s Case No. E079 of 2021, in which the trial court reviewed a consent entered into between the parties herein on 6th July 2023, and reduced the monthly child maintenance payable by the Respondent from Kshs. 50,000/- to Kshs. 20,000/-.
2. A brief background of the matter is that the parties were previously married from 2009 to 2018, and the union was blessed with two issues, F.M. and N.F. The marriage, however, ended in divorce in 2022. In 2021, the Appellant, who had moved out with the children, filed a suit to compel the Respondent to provide financial support for the children.
3. The case led to a consent judgment on 6th July 2023, which was adopted as a court decree. The terms of the consent judgment were that the custody of the minors was given to the Appellant (mother), whereas the Respondent (father) was to pay school fees and related expenses directly to the school, and pay Kshs. 50,000 monthly for the children''s upkeep. The Respondent was also granted visitation rights.
4. The Respondent, however, failed to fully comply with the terms of the said consent judgment, a fact which led to multiple court applications by the Appellant for enforcement of the consent orders. The Respondent, on the other hand, also alleged that the Appellant failed to comply with the consent judgment, particularly in relation to allowing the Respondent’s visitation rights in respect of the children.
5. On 25th June 2024, the Respondent filed an application seeking a review of the said consent judgment from a monthly maintenance sum of Kshs. 50,000/- to Kshs. 20,000/- on the basis that the initially agreed monthly sum of Kshs. 50,000/- was unsustainable due to, among others, additional dependents and increased loan and mortgage repayment rates due to economic challenges.
6. The application was opposed by the Appellant, who also sought an upward review of the monthly maintenance amount.
7. On 29th August 2024, the trial court rendered its ruling and partially allowed the Respondent’s application, reducing the maintenance to Kshs. 20,000/-.
The Appeal
8. Aggrieved by the said decision of the trial court, the Appellant lodged an appeal to this Court, vide her amended memorandum of appeal dated 5th November 2024, raising nine grounds of appeal, key among them being that: -
i. The trial magistrate erred in law and in fact by failing to consider that the circumstances cited by the Respondent as changed were already in existence at the time the consent judgment was entered on 6th July 2023 and could therefore not serve as new grounds for granting the application for review.
ii. The trial magistrate erred in law and in fact by overlooking the substantial evidence on record showing that the Respondent had rental income from commercial residential properties, other income sources, and a sufficient salary to address the alleged changed circumstances, particularly the increased loan/mortgage repayment percentages, and therefore could not claim an inability to pay the monthly maintenance amount of Kshs. 50,000/-.
iii. The trial magistrate erred in law and in fact by concluding that the Loan/mortgage repayment percentages had increased and created difficulty in paying the monthly maintenance amount, when this alleged difficulty was not supported by evidence, thus resulting in an erroneous decision.
iv. The trial magistrate erred in law and in fact by casually reviewing the terms of a consent judgment, which in law holds the status of a binding contract, without considering the increasing subsistence needs of the minors as they grow.
v. The magistrate erred in law and in fact by ignoring overwhelming evidence on record that the Respondent had prioritized philanthropic work, specifically educating other people''s children in expensive schools which number thereof has gradually increased since the inception of this matter, while the minors herein were enrolled in relatively cheaper schools, thereby demonstrating his ability to easily raise the monthly maintenance amount.
9. Based on the grounds of appeal, the Appellant prayed that the appeal be allowed and the trial court’s ruling of 29th August 2024 and the orders flowing therefrom be set aside, and be substituted with an order of this Court dismissing the Respondent’s application dated 25th June 2024 (in Kisumu CMCC No. E079 of 2021) for review and that the monthly maintenance amount of the minors herein in the sum of Kshs. 50,000/- be reinstated, or alternatively, that the amount be reviewed upwards.
10. The Appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 6th November 2024, whilst the Respondent’s submissions are dated 15th November 2024.
Analysis and Determination
11. Having carefully reviewed the record of appeal and the parties'' submissions in support of their respective positions. I find that the core issue for determination in this appeal is whether the trial court erred in reviewing and reducing the monthly child maintenance from KShs. 50,000 to KShs. 20,000.
12. Article 53 (2) of the Constitution provides:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
13. Further, Section 8(1) of the Children’s Act 2022 is clear that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be the primary consideration. The section further provides that the best interests of the child shall include, but shall not be limited to, the considerations set out in the First Schedule to the Act.
14. The First Schedule of the Children’s Act 2022 lists down the considerations to be taken into account when ascertaining what is in the best interest of a child to include: -
i. The age, maturity, stage of development, gender, background and any other relevant characteristic of the child.
ii. Distinct special needs (if any) arising from chronic ailment or disability.
iii. The relationship of the child with the child''s parent(s) and/or guardian(s) and any other persons who may significantly affect the child''s welfare.
iv. The preference of the child, if old enough to express a meaningful preference.
v. The duration and adequacy of the child''s current living arrangements and the desirability of maintaining continuity.
vi. The stability of any proposed living arrangements for the child;
vii. The motivation of the parties involved and their capacities to give the child love, affection and guidance.
viii. The child''s adjustment to the child''s present home, school and community.
ix. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
x. The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
xi. Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent''s/guardian’s willingness to use those methods.
xii. The effect on the child if one parent/guardian has sole authority over the child''s upbringing.
xiii. The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
xiv. The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child.
xv. Where the child is under one year of age, whether the child is being breast-fed.
xvi. The existence of a parent''s or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
xvii. Where there is a person residing with a parent or guardian, whether that person—
a. been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code, or any other legislation.
b. has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony.
xviii. Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child.
15. The first issue taken up by the Appellant was that the trial court erred in law by reviewing a consent judgment without evidence of new and material circumstances. According to the Appellant, it is a settled principle of law that a consent judgment is binding and can only be set aside on grounds of fraud, mistake, misrepresentation, or other sufficient cause. The Appellant asserted that none of the grounds for setting aside existed in this case.
16. The Respondent, on the other hand, argued that the trial court had the power to review the orders in the manner that it did. According to the Respondent, the power to review maintenance orders is granted by the Children Act, 2022.
17. Whereas it is a well-established legal principle that a consent judgment is akin to a contract and can only be set aside or reviewed under specific circumstances, such as fraud, collusion, or a mistake (See Flora N. Wasike v Destimo Wamboko [1988] eKLR, where Hancox JA held that a consent judgment “has contractual effect and can only be set aside on grounds which would justify setting a contract aside”), the law provides an exception in cases involving children.
18. Section 116(3), Section 119(b), and Section 120 of the Children Act, 2022, gives the court the discretion to review periodic financial payments for a child if there is a significant change in circumstances of either parent, provided the review is in the best interest of the child. Section 116 of the Act provides that:-
“116. Duration of financial provisions
(1) A maintenance order requiring financial provision to be made through periodic payments shall commence on the date of the application, or on such later date as the Court may direct.
(2) An order under subsection (1) shall remain in force until the child’s eighteenth birthday subject to the provisions of section 111.
(3) The Court may review the order for periodic payment upon—
(a) the death of the person liable to make the periodic payment
(b) significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.” [Emphasis added]
19. Further, Section 119 of the Act provides that:-
“119. In relation to an order made under section 116, the Court may -
a) impose such conditions as the Court deems fit;
b) vary, modify or discharge any order made under section 116 with respect to making of any financial provision, by altering the schedule of payments or by increasing or diminishing the amount payable; or
c) temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the Court deems fit.”
20. Where child maintenance orders are entered into by consent (as was the case herein) of the parties, the specific provision is Section 120 of the Act, which provides as follows: -
“120. Power to vary maintenance agreements
Where the parents, guardians or custodians of a child enter into an agreement, whether orally or in writing, in respect of the maintenance of the child, the Court may, upon application, vary the terms of the agreement if the Court is satisfied that such variation is reasonable and in the best interest of the child.”
21. This Court (Limo J) in JMM v GMM & 2 others (Children suing through their mother and next friend ZMK) [2021] KEHC 3523 (KLR) in upholding the court’s power to review maintenance orders in children matters, stated as follows: -
“The Children Court is seized with jurisdiction & discretion to vary the orders made to suit the expediencies currently obtaining. Section 99 of the Children’s Act provides;
‘‘The court shall have the power to impose such conditions as it thinks fit to an order made under this section and shall have the power to vary, modify or discharge any order made under Section 98 concerning the making of any financial provisions, by altering the times of payments or by increasing or diminishing the amount payable or may temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the court thinks fit.’’
22. In EKK & Another vs HKK (2020) eKLR Honourable Justice L.W. Gitari held that;
“Under Sections 73 and 99 of the Act the court is given wide discretion to impose conditions and to vary orders given regarding maintenance of a child. It would mean that in matters concerning maintenance of children, the court has discretion to vary the consent orders on application by the parties. Section 100 of the Act provides where the parents and guardian or custodian of a child, have entered into an agreement whether oral or written in respect of the maintenance of the child, the court may upon application vary terms of the agreement if it is satisfied that such variation is reasonable and in the best interest of the child.”
23. The sections cited by the Judges in the above-cited authorities are still applicable to date despite the repeal of the then Children Act, as they have been replicated in the current Children Act 2022, in sections 119 and 120.
24. From the above, it is therefore clear that in children’s cases, courts retain continuing jurisdiction to vary maintenance orders where circumstances materially change. Section 120 of the Children Act, 2022 expressly empowers the court to review consent maintenance orders in the event of a material change in circumstances, provided the best interests of the child are not undermined.
25. It therefore follows that in the present case, the trial court had jurisdiction to entertain the application. The key question that is left for determination, therefore, is whether the circumstances presented by the Respondent were sufficient to warrant such a review.
26. The Appellant’s position is that there was no basis for the trial court to exercise its review powers under the Children Act. The Appellant maintained that the trial court was wrong in failing to find that there had not been any material change of circumstances in the manner contemplated under section 116(3) of the Act to warrant a review of the consent maintenance orders.
27. The Appellant maintained that the trial court erroneously assumed hardship on the part of the Respondent without sufficient evidence. According to the Appellant, the trial court''s decision was speculative, as it was not provided with evidence of income from the Respondent''s investments to justify the claim of financial strain.
28. It was further the Appellant’s position that in reaching its decision, the trial court appeared to have overlooked the Respondent’s repeated failure to comply with the terms of the consent order. The Appellant asserted that the trial court disregarded the best interests of the minors by condoning the Respondent’s non-compliance by reducing the maintenance amount in the face of increased living costs and the children’s growing needs.
29. The Appellant asserted that the Kshs. 50,000/- maintenance amount is minimal in comparison to the Respondent''s substantial earnings and that he has significant investments, including rental properties, which provide him with enhanced access to credit.
30. The Respondent, on the other hand, supported the trial court’s decision and contended that he has other financial obligations, including loan and mortgage repayments, and that the income from his rental properties is insufficient to meet these liabilities. The Respondent also stated he has a new family with two other children to support.
31. The Respondent, in his submissions, however, portrayed the Appellant as litigious and money-minded, arguing that her primary goal is to frustrate and financially cripple him rather than to act in the minors'' best interest. The Respondent highlighted that the Appellant has allegedly denied him visitation and access to the children, which is a violation of the same consent judgment she seeks to enforce.
32. The Respondent further argued that the Kshs. 20,000 maintenance is sufficient for the children''s needs, bearing in mind that he covers their school fees and medical expenses directly.
33. In determining this appeal I am well guided by the decision in Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123 and Peters v Sunday Post Limited [1958] on the duty of the appellate court to re-evaluate the evidence before the trial court as well as the judgment and arrive at its independent conclusion bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.
34. As pointed out above, there is no dispute that in children matters, unlike in ordinary suits, the court always has jurisdiction to review or vary orders to suit the best interest of the child, which is the paramount point for consideration.
35. The central question before this Court is whether the circumstances as presented by the Respondent before the trial court warrant the exercise of this Court''s review jurisdiction. The power of review, while discretionary, is circumscribed by well-established principles that have been crystallized through judicial precedent.
36. Under Section 120 of the Children Act, the Court has the jurisdiction, upon application, to review and “vary the terms of a consent maintenance agreement in respect of a child if the Court is satisfied that such variation is reasonable and in the best interest of the child. Section 116(3) (b) of the Act provides that for such a variation to be permitted by the court. there must be a significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.
37. From the record, it is evident that the Respondent relied on, among others, the fact that the interest rate for his mortgage had gone up, thereby adversely affecting his ability to comply with the consent agreement of remitting a monthly maintenance of Kshs. 50,000/-. He instead proposed a sum of Kshs. 20,000/- in that regard.
38. The trial court, in its impugned ruling, found that the Respondent''s change in circumstances justified a reduction in maintenance. The trial court, in allowing the application, specifically stated as follows: -
“The defendant has attached two letters from Prime Bank to show how his loan/mortgage percentages were reviewed upwards. This is a good reason that the court can consider in an application for review, such as this one at hand.”
39. The fact of interest rates going up obviously has the effect of reducing the disposable income and may, in fact, be “a significant change of circumstances” within the meaning of section 116(3)(b) of the Children Act to warrant a review of the maintenance orders, where the same is in the best interest of the child.
40. In this case, the trial court clearly pointed out that it relied on the letter from Prime Bank Limited, which indicated that the interest rate had gone up, thereby negatively impacting the Appellant’s ability to comply with the consent order, thereby warranting a review of the maintenance sum from Kshs. 50,000/- monthly to Kshs. 20,000/- monthly.
41. This Court notes that following entry of the consent between the parties herein, the Respondent failed to comply with the said order for over months, and that the arrears continued to pile up, an indication that the Respondent may have encountered some difficulties in complying with the orders. The non-compliance by the Respondent has led to numerous applications by the Appellant for an execution consent order.
42. It is a settled principle of law that an appellate court can only interfere with the discretionary powers of the trial court where it is demonstrated that the trial court misdirected itself in some matters and as a result arrived at an erroneous decision, or unless it is manifest from the case as a whole that the court has been clearly wrong. See Mbogo & Another vs Shah, [1968] EA, where the Court stated as follows: -
“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.
The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”
43. In the present case, I agree with the trial court that insisting on Kshs. 50,000, when it was demonstrably not forthcoming, would prejudice the minors more than benefit them. A steady, realistic flow of Kshs. 20,000 is preferable to a higher figure that breeds default and litigation.
44. The best interest of the minors is not served when parents litigate continuously in court over their upkeep. Bearing in mind that the Respondent has already provided for the education and medical needs of the children, the best interest of the children, in my view, as pointed out above, would be best served by a steady inflow of the Kshs. 20,000 as reviewed by the court, as opposed to the sum of Kshs. 50,000, which, from the record, has not been forthcoming.
45. The allegation by the Appellant that the Respondent had prioritized philanthropic work, including educating other people’s children, cannot be a ground to deny an application for variation of a maintenance order since the Respondent, like the rest in society, often lends a hand to other children from vulnerable backgrounds. In any event, no evidence was adduced in support of this allegation.
46. Based on the above and bearing in mind that the trial court exercised its discretionary powers in reviewing the consent orders, I find nothing to warrant this court’s interference with the discretionary powers of the trial court, who the benefit of hearing the testimonies and demeanor of the parties herein.
47. Before I conclude, I wish to point out that the Court has noted the Respondent’s submissions that the Appellant has allegedly denied him and or frustrated visitation and access to the children. I reiterate that parental responsibility encompasses not only financial support but also presence. The Appellant is directed not to frustrate the Respondent’s access rights as earlier ordered. The parties are encouraged to pursue counseling and mediation to ensure the children enjoy the presence of both parents.
48. In light of the foregoing, the appeal fails. However, for avoidance of doubt, this judgment should not be construed to mean that the parties are not at liberty to, in the future, apply for variation of the maintenance orders as provided under the Act.
Final Orders
i. The ruling of Hon. M. Nyigei (CM) delivered on 29th August 2024, reducing the monthly maintenance from Kshs. 50,000 to Kshs. 20,000 is hereby upheld.
ii. The parties are reminded of their liberty under the Children Act to seek review of maintenance orders upon proof of material change of circumstances.
iii. Each party shall bear their own costs, this being a children’s matter.
49. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 29TH DAY OF MAY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
JEJI for h/b Odhiambo…………for the Appellant
Atulo……………for the Respondent
'
1. This appeal arises from the ruling of Hon. M. Nyigei (Chief Magistrate, Kisumu) delivered on 29th August 2024 in Kisumu CMC Children’s Case No. E079 of 2021, in which the trial court reviewed a consent entered into between the parties herein on 6th July 2023, and reduced the monthly child maintenance payable by the Respondent from Kshs. 50,000/- to Kshs. 20,000/-.
2. A brief background of the matter is that the parties were previously married from 2009 to 2018, and the union was blessed with two issues, F.M. and N.F. The marriage, however, ended in divorce in 2022. In 2021, the Appellant, who had moved out with the children, filed a suit to compel the Respondent to provide financial support for the children.
3. The case led to a consent judgment on 6th July 2023, which was adopted as a court decree. The terms of the consent judgment were that the custody of the minors was given to the Appellant (mother), whereas the Respondent (father) was to pay school fees and related expenses directly to the school, and pay Kshs. 50,000 monthly for the children''s upkeep. The Respondent was also granted visitation rights.
4. The Respondent, however, failed to fully comply with the terms of the said consent judgment, a fact which led to multiple court applications by the Appellant for enforcement of the consent orders. The Respondent, on the other hand, also alleged that the Appellant failed to comply with the consent judgment, particularly in relation to allowing the Respondent’s visitation rights in respect of the children.
5. On 25th June 2024, the Respondent filed an application seeking a review of the said consent judgment from a monthly maintenance sum of Kshs. 50,000/- to Kshs. 20,000/- on the basis that the initially agreed monthly sum of Kshs. 50,000/- was unsustainable due to, among others, additional dependents and increased loan and mortgage repayment rates due to economic challenges.
6. The application was opposed by the Appellant, who also sought an upward review of the monthly maintenance amount.
7. On 29th August 2024, the trial court rendered its ruling and partially allowed the Respondent’s application, reducing the maintenance to Kshs. 20,000/-.
The Appeal
8. Aggrieved by the said decision of the trial court, the Appellant lodged an appeal to this Court, vide her amended memorandum of appeal dated 5th November 2024, raising nine grounds of appeal, key among them being that: -
i. The trial magistrate erred in law and in fact by failing to consider that the circumstances cited by the Respondent as changed were already in existence at the time the consent judgment was entered on 6th July 2023 and could therefore not serve as new grounds for granting the application for review.
ii. The trial magistrate erred in law and in fact by overlooking the substantial evidence on record showing that the Respondent had rental income from commercial residential properties, other income sources, and a sufficient salary to address the alleged changed circumstances, particularly the increased loan/mortgage repayment percentages, and therefore could not claim an inability to pay the monthly maintenance amount of Kshs. 50,000/-.
iii. The trial magistrate erred in law and in fact by concluding that the Loan/mortgage repayment percentages had increased and created difficulty in paying the monthly maintenance amount, when this alleged difficulty was not supported by evidence, thus resulting in an erroneous decision.
iv. The trial magistrate erred in law and in fact by casually reviewing the terms of a consent judgment, which in law holds the status of a binding contract, without considering the increasing subsistence needs of the minors as they grow.
v. The magistrate erred in law and in fact by ignoring overwhelming evidence on record that the Respondent had prioritized philanthropic work, specifically educating other people''s children in expensive schools which number thereof has gradually increased since the inception of this matter, while the minors herein were enrolled in relatively cheaper schools, thereby demonstrating his ability to easily raise the monthly maintenance amount.
9. Based on the grounds of appeal, the Appellant prayed that the appeal be allowed and the trial court’s ruling of 29th August 2024 and the orders flowing therefrom be set aside, and be substituted with an order of this Court dismissing the Respondent’s application dated 25th June 2024 (in Kisumu CMCC No. E079 of 2021) for review and that the monthly maintenance amount of the minors herein in the sum of Kshs. 50,000/- be reinstated, or alternatively, that the amount be reviewed upwards.
10. The Appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 6th November 2024, whilst the Respondent’s submissions are dated 15th November 2024.
Analysis and Determination
11. Having carefully reviewed the record of appeal and the parties'' submissions in support of their respective positions. I find that the core issue for determination in this appeal is whether the trial court erred in reviewing and reducing the monthly child maintenance from KShs. 50,000 to KShs. 20,000.
12. Article 53 (2) of the Constitution provides:-
“A child’s best interests are of paramount importance in every matter concerning the child.”
13. Further, Section 8(1) of the Children’s Act 2022 is clear that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be the primary consideration. The section further provides that the best interests of the child shall include, but shall not be limited to, the considerations set out in the First Schedule to the Act.
14. The First Schedule of the Children’s Act 2022 lists down the considerations to be taken into account when ascertaining what is in the best interest of a child to include: -
i. The age, maturity, stage of development, gender, background and any other relevant characteristic of the child.
ii. Distinct special needs (if any) arising from chronic ailment or disability.
iii. The relationship of the child with the child''s parent(s) and/or guardian(s) and any other persons who may significantly affect the child''s welfare.
iv. The preference of the child, if old enough to express a meaningful preference.
v. The duration and adequacy of the child''s current living arrangements and the desirability of maintaining continuity.
vi. The stability of any proposed living arrangements for the child;
vii. The motivation of the parties involved and their capacities to give the child love, affection and guidance.
viii. The child''s adjustment to the child''s present home, school and community.
ix. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
x. The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
xi. Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent''s/guardian’s willingness to use those methods.
xii. The effect on the child if one parent/guardian has sole authority over the child''s upbringing.
xiii. The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
xiv. The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child.
xv. Where the child is under one year of age, whether the child is being breast-fed.
xvi. The existence of a parent''s or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
xvii. Where there is a person residing with a parent or guardian, whether that person—
a. been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code, or any other legislation.
b. has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony.
xviii. Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child.
15. The first issue taken up by the Appellant was that the trial court erred in law by reviewing a consent judgment without evidence of new and material circumstances. According to the Appellant, it is a settled principle of law that a consent judgment is binding and can only be set aside on grounds of fraud, mistake, misrepresentation, or other sufficient cause. The Appellant asserted that none of the grounds for setting aside existed in this case.
16. The Respondent, on the other hand, argued that the trial court had the power to review the orders in the manner that it did. According to the Respondent, the power to review maintenance orders is granted by the Children Act, 2022.
17. Whereas it is a well-established legal principle that a consent judgment is akin to a contract and can only be set aside or reviewed under specific circumstances, such as fraud, collusion, or a mistake (See Flora N. Wasike v Destimo Wamboko [1988] eKLR, where Hancox JA held that a consent judgment “has contractual effect and can only be set aside on grounds which would justify setting a contract aside”), the law provides an exception in cases involving children.
18. Section 116(3), Section 119(b), and Section 120 of the Children Act, 2022, gives the court the discretion to review periodic financial payments for a child if there is a significant change in circumstances of either parent, provided the review is in the best interest of the child. Section 116 of the Act provides that:-
“116. Duration of financial provisions
(1) A maintenance order requiring financial provision to be made through periodic payments shall commence on the date of the application, or on such later date as the Court may direct.
(2) An order under subsection (1) shall remain in force until the child’s eighteenth birthday subject to the provisions of section 111.
(3) The Court may review the order for periodic payment upon—
(a) the death of the person liable to make the periodic payment
(b) significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.” [Emphasis added]
19. Further, Section 119 of the Act provides that:-
“119. In relation to an order made under section 116, the Court may -
a) impose such conditions as the Court deems fit;
b) vary, modify or discharge any order made under section 116 with respect to making of any financial provision, by altering the schedule of payments or by increasing or diminishing the amount payable; or
c) temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the Court deems fit.”
20. Where child maintenance orders are entered into by consent (as was the case herein) of the parties, the specific provision is Section 120 of the Act, which provides as follows: -
“120. Power to vary maintenance agreements
Where the parents, guardians or custodians of a child enter into an agreement, whether orally or in writing, in respect of the maintenance of the child, the Court may, upon application, vary the terms of the agreement if the Court is satisfied that such variation is reasonable and in the best interest of the child.”
21. This Court (Limo J) in JMM v GMM & 2 others (Children suing through their mother and next friend ZMK) [2021] KEHC 3523 (KLR) in upholding the court’s power to review maintenance orders in children matters, stated as follows: -
“The Children Court is seized with jurisdiction & discretion to vary the orders made to suit the expediencies currently obtaining. Section 99 of the Children’s Act provides;
‘‘The court shall have the power to impose such conditions as it thinks fit to an order made under this section and shall have the power to vary, modify or discharge any order made under Section 98 concerning the making of any financial provisions, by altering the times of payments or by increasing or diminishing the amount payable or may temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the court thinks fit.’’
22. In EKK & Another vs HKK (2020) eKLR Honourable Justice L.W. Gitari held that;
“Under Sections 73 and 99 of the Act the court is given wide discretion to impose conditions and to vary orders given regarding maintenance of a child. It would mean that in matters concerning maintenance of children, the court has discretion to vary the consent orders on application by the parties. Section 100 of the Act provides where the parents and guardian or custodian of a child, have entered into an agreement whether oral or written in respect of the maintenance of the child, the court may upon application vary terms of the agreement if it is satisfied that such variation is reasonable and in the best interest of the child.”
23. The sections cited by the Judges in the above-cited authorities are still applicable to date despite the repeal of the then Children Act, as they have been replicated in the current Children Act 2022, in sections 119 and 120.
24. From the above, it is therefore clear that in children’s cases, courts retain continuing jurisdiction to vary maintenance orders where circumstances materially change. Section 120 of the Children Act, 2022 expressly empowers the court to review consent maintenance orders in the event of a material change in circumstances, provided the best interests of the child are not undermined.
25. It therefore follows that in the present case, the trial court had jurisdiction to entertain the application. The key question that is left for determination, therefore, is whether the circumstances presented by the Respondent were sufficient to warrant such a review.
26. The Appellant’s position is that there was no basis for the trial court to exercise its review powers under the Children Act. The Appellant maintained that the trial court was wrong in failing to find that there had not been any material change of circumstances in the manner contemplated under section 116(3) of the Act to warrant a review of the consent maintenance orders.
27. The Appellant maintained that the trial court erroneously assumed hardship on the part of the Respondent without sufficient evidence. According to the Appellant, the trial court''s decision was speculative, as it was not provided with evidence of income from the Respondent''s investments to justify the claim of financial strain.
28. It was further the Appellant’s position that in reaching its decision, the trial court appeared to have overlooked the Respondent’s repeated failure to comply with the terms of the consent order. The Appellant asserted that the trial court disregarded the best interests of the minors by condoning the Respondent’s non-compliance by reducing the maintenance amount in the face of increased living costs and the children’s growing needs.
29. The Appellant asserted that the Kshs. 50,000/- maintenance amount is minimal in comparison to the Respondent''s substantial earnings and that he has significant investments, including rental properties, which provide him with enhanced access to credit.
30. The Respondent, on the other hand, supported the trial court’s decision and contended that he has other financial obligations, including loan and mortgage repayments, and that the income from his rental properties is insufficient to meet these liabilities. The Respondent also stated he has a new family with two other children to support.
31. The Respondent, in his submissions, however, portrayed the Appellant as litigious and money-minded, arguing that her primary goal is to frustrate and financially cripple him rather than to act in the minors'' best interest. The Respondent highlighted that the Appellant has allegedly denied him visitation and access to the children, which is a violation of the same consent judgment she seeks to enforce.
32. The Respondent further argued that the Kshs. 20,000 maintenance is sufficient for the children''s needs, bearing in mind that he covers their school fees and medical expenses directly.
33. In determining this appeal I am well guided by the decision in Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123 and Peters v Sunday Post Limited [1958] on the duty of the appellate court to re-evaluate the evidence before the trial court as well as the judgment and arrive at its independent conclusion bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.
34. As pointed out above, there is no dispute that in children matters, unlike in ordinary suits, the court always has jurisdiction to review or vary orders to suit the best interest of the child, which is the paramount point for consideration.
35. The central question before this Court is whether the circumstances as presented by the Respondent before the trial court warrant the exercise of this Court''s review jurisdiction. The power of review, while discretionary, is circumscribed by well-established principles that have been crystallized through judicial precedent.
36. Under Section 120 of the Children Act, the Court has the jurisdiction, upon application, to review and “vary the terms of a consent maintenance agreement in respect of a child if the Court is satisfied that such variation is reasonable and in the best interest of the child. Section 116(3) (b) of the Act provides that for such a variation to be permitted by the court. there must be a significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.
37. From the record, it is evident that the Respondent relied on, among others, the fact that the interest rate for his mortgage had gone up, thereby adversely affecting his ability to comply with the consent agreement of remitting a monthly maintenance of Kshs. 50,000/-. He instead proposed a sum of Kshs. 20,000/- in that regard.
38. The trial court, in its impugned ruling, found that the Respondent''s change in circumstances justified a reduction in maintenance. The trial court, in allowing the application, specifically stated as follows: -
“The defendant has attached two letters from Prime Bank to show how his loan/mortgage percentages were reviewed upwards. This is a good reason that the court can consider in an application for review, such as this one at hand.”
39. The fact of interest rates going up obviously has the effect of reducing the disposable income and may, in fact, be “a significant change of circumstances” within the meaning of section 116(3)(b) of the Children Act to warrant a review of the maintenance orders, where the same is in the best interest of the child.
40. In this case, the trial court clearly pointed out that it relied on the letter from Prime Bank Limited, which indicated that the interest rate had gone up, thereby negatively impacting the Appellant’s ability to comply with the consent order, thereby warranting a review of the maintenance sum from Kshs. 50,000/- monthly to Kshs. 20,000/- monthly.
41. This Court notes that following entry of the consent between the parties herein, the Respondent failed to comply with the said order for over months, and that the arrears continued to pile up, an indication that the Respondent may have encountered some difficulties in complying with the orders. The non-compliance by the Respondent has led to numerous applications by the Appellant for an execution consent order.
42. It is a settled principle of law that an appellate court can only interfere with the discretionary powers of the trial court where it is demonstrated that the trial court misdirected itself in some matters and as a result arrived at an erroneous decision, or unless it is manifest from the case as a whole that the court has been clearly wrong. See Mbogo & Another vs Shah, [1968] EA, where the Court stated as follows: -
“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.
The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”
43. In the present case, I agree with the trial court that insisting on Kshs. 50,000, when it was demonstrably not forthcoming, would prejudice the minors more than benefit them. A steady, realistic flow of Kshs. 20,000 is preferable to a higher figure that breeds default and litigation.
44. The best interest of the minors is not served when parents litigate continuously in court over their upkeep. Bearing in mind that the Respondent has already provided for the education and medical needs of the children, the best interest of the children, in my view, as pointed out above, would be best served by a steady inflow of the Kshs. 20,000 as reviewed by the court, as opposed to the sum of Kshs. 50,000, which, from the record, has not been forthcoming.
45. The allegation by the Appellant that the Respondent had prioritized philanthropic work, including educating other people’s children, cannot be a ground to deny an application for variation of a maintenance order since the Respondent, like the rest in society, often lends a hand to other children from vulnerable backgrounds. In any event, no evidence was adduced in support of this allegation.
46. Based on the above and bearing in mind that the trial court exercised its discretionary powers in reviewing the consent orders, I find nothing to warrant this court’s interference with the discretionary powers of the trial court, who the benefit of hearing the testimonies and demeanor of the parties herein.
47. Before I conclude, I wish to point out that the Court has noted the Respondent’s submissions that the Appellant has allegedly denied him and or frustrated visitation and access to the children. I reiterate that parental responsibility encompasses not only financial support but also presence. The Appellant is directed not to frustrate the Respondent’s access rights as earlier ordered. The parties are encouraged to pursue counseling and mediation to ensure the children enjoy the presence of both parents.
48. In light of the foregoing, the appeal fails. However, for avoidance of doubt, this judgment should not be construed to mean that the parties are not at liberty to, in the future, apply for variation of the maintenance orders as provided under the Act.
Final Orders
i. The ruling of Hon. M. Nyigei (CM) delivered on 29th August 2024, reducing the monthly maintenance from Kshs. 50,000 to Kshs. 20,000 is hereby upheld.
ii. The parties are reminded of their liberty under the Children Act to seek review of maintenance orders upon proof of material change of circumstances.
iii. Each party shall bear their own costs, this being a children’s matter.
49. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 29TH DAY OF MAY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
JEJI for h/b Odhiambo…………for the Appellant
Atulo……………for the Respondent
'