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JudgmentWATSON KAGUCIA BURUGU VS PURITY8 min read

WATSON KAGUCIA BURUGU VS PURITY

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


  1. Before this court  for determination is the Appeal filed  by Watson Kagucia Burugu (the Appellant) through a Memorandum of Appeal  dated  5th March 2024. The Appeal arises out of a Ruling delivered on 27th February 2024  by Hon. Andrew Githinji Munene ,Principal  Magistrate in Nairobi Children’s Case No.E175 of  2024.
  2. The Appeal was canvassed by way of written submissions. The Appellant filed the written submissions dated 9th August 2024. The Respondent did not  respond to the appeal or file submissions.   

BACKGROUND

  1. The Respondent herein filed a suit (as Plaintiff) in the Children’s Court in Nairobi being Suit No.E175 of 2024  seeking house rent, food, clothing, school fees and other related expenses, entertainment, medical care, custody care and control over the minors, costs and any other relief befitting the best interests of the children. Accompanying the plaint was a  certificate of urgency and a chamber summons dated 24th January 2024. The Respondent in her chamber summons sought the following orders;
  2. Spent.
  3. That this Honourable Court do grant the plaintiff/applicant interim custody care and the control of the minors herein pending the hearing and final determination of this application.
  4. That this Honourable Court do grant the plaintiff/applicant interim custody care and the control of the minors herein pending the hearing and determination of this suit.
  5. That pending the hearing and determination of this application, this Honourable Court be pleased to issue interim orders compelling the Defendant/Respondent to pay the minors school fees and other related  items as hereunder;
  6. Ethan Burungu Kagucia- Kenya Shillings Seventy Five Thousand ( Kshs. 75,000/=).
  7. Joy Wanjiru Kagucia- Kenya Shillings Sixty Five Thousand Shillings (Kshs. 65,000/=).
  8. That this Honourable Court be pleased to issue interim maintenance orders against the defendant/respondent pending the hearing and determination of this application as follows;
  9. House rent- Kshs. 20,000/= per month.
  10. Food- Kshs. 20,000/= per month.
  11. Clothing- Kshs. 10,000 per child quarterly.
  12. School fees and other related items- Kshs. 180,000/= per term for both minors.
  13. Entertainment ( TV payment ,internet and  outings) to be availed during school holidays and half terms – Kshs. 10,000.
  14. Medical care-the defendant to take out a suitable medical insurance to cater for the minors.
  15. That this Honourable Court be pleased to issue interim maintenance orders against the defendant/respondent pending the hearing and determination of this suit as follows;
  16. House rent- Kshs. 20,000/= per month.
  17. Food- Kshs. 20,000/= per month.
  18. Clothing- Kshs. 10,000 per child quarterly.
  19. School fees and other related items- Kshs. 180,000/= per term for both minors.
  20. Entertainment ( TV payment ,internet and  outings) to be availed during school holidays and half terms – Kshs. 10,000.
  21. Medical care-the defendant to take out a suitable medical insurance to cater for the minors.
  22. That costs of this application be provided for.
  23. The Appellant who was the Defendant filed a replying affidavit dated 14th February 2024.  He did not deny the paternity of the children. He averred that the Respondent obtained loans that were guaranteed by him. The Respondent defaulted in repaying the loan therefore, he has partly paid the loan. The Respondent ran down the family business which he never benefitted from. He stated that he was unable to make any comtribution because he has not recovered financially. He asked the court to grant him access of the mnors.
  24. On 27th February 2024, the  trial court delivered a ruling under the following terms:
  25. Both parties to equally share school fees and school related expenses including outstanding arrears pending hearing and determination of the suit.
  26. Both parties shall share school holidays with the defendant having custody of the minors on the 1st half of school holidays.
  27. Each party to bear its own cost.  
  28. The  appellant dissatisfied  with the above orders filed a Memorandum of Appeal dated 5th March 2024 in which he listed twenty one  (21) grounds of appeal.
  29. The Appellant prayed for the following orders;
  30. That this appeal be allowed.
  31. The ruling of the subordinate court be reviewed, set aside and substituted with orders that the Respondent do transfer the minors to a public school which is affordable and/or in the alternative cater for all the financial needs from the family businesses’ income.
  32. That the appellant be allowed to stay with the minors during the period of access to offer parental love, guidance as well as psychological and emotional support as the contribution on his parental responsibility.
  33. That this Honourable Court be pleased to make any or further orders as may be just and expedient in the circumstances.
  34. Costs of the Appeal be awarded to the Appellant.

APPELLANT’S SUBMISSIONS.

  1. The Appellant submitted that maintenance of children is a parental responsibility for both parents. He submitted that while making an order for maintenance,  the court is bound by the provisions of Section 95 (2) (f) of the Childrens Act and Section 114(2) of the Children Act which provide as follows;

Section 95 (2) (f)

The ability of the parent, or any other person to whom the Court considers the question to be relevant, to provide for and care for the child.

Section 114 (2)

… the Court shall consider all the circumstances of the case and be guided by the following considerations—

(a) the income or earning capacity, property and other financial resources which the parties or any other person in whose favour the Court proposes to make an order, have or are likely to have in the immediate future;

(b) the financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future;

(c) The financial needs of the child and the child’s current circumstances…

  1. According to him, the trial court did not take into consideration the financial ability of each party before making the orders on maintenance. He sought to rely on the decisions of  KMM v MMO [2022] eKLR , RWM v PMM [2021] eKLR  and  Patrick Muiru Kamuguna versus Kaylift Services Limited & Another (2021) eKLR where the courts held  that trial court was obligated to take into account the income or earning capacity, property and financial resources of the parties both then and in the foreseeable future. The trial court was also to consider the parties’ financial needs, obligations or responsibilities.  He submitted that despite informing the trial court of the predicament he was in, the trial magistrate did not put into consideration  his plea that he was unable to provide any financial support for the minors.

ANALYSIS AND DETERMINATION.

  1.  The Appellant/Applicant has prayed for a review of the maintenance order. The Children Act empowers the Court to review a maintenance order made under Section 98 of the Act. Section  99 provides:

“The court shall have power to impose such conditions as it thinks fit to an order made under this section and shall have power to vary, modify or discharge any order made under section 98 with respect to the making of any financial provision, 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.

  1. Article 53 of the Constitution provides that every child is entitled to parental care and protection of both parents. Parental care is an equal responsibility of both parents whether they are married to each other or not.   

53. (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;

  1. The children  herein require inter alia, adequate diet, shelter, clothing, medical care, education and guidance. These needs are to be provided by both parents who are the parties herein. Effort must be made by both parents to provide for the child.
  2. In this appeal, this court is in effect being called upon to determine whether the trial court was properly guided when it made the ruling on interim maintenance.
  3. As a general rule or guideline, the trial court was obligated to take into account the income or earning capacity and financial abilities of both parties before rendering a decision. The trial court was also required to consider the financial needs and other requirements of the children.
  4. At this stage, it may be difficult for this court to interrogate some of the issues raised because the matter had not moved to full trial where the issues would have been interrogated
  5. In my  considered view, the appellant should have simply invoked Section 99 of the Children’s Act. 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.’’

  1. There is nothing that prevents the Applicant from moving the trial court for any order that is just to both parties. It is important to note that at all times the primary consideration is not the hardship occasioned by a maintenance order or any other consideration but the best interest of the children as stipulated under Section 4 of the Children’s Act & Article 53(2) of the Constitution.
  2. In LAO versus OK Arap M [2019] eKLR ,the court moved to vary a maintainance order and observed as follows:-

‘The court in the exercise of its power may impose conditions, vary modify or even discharge a maintenance order for the making of a financial provision. The Court may also increase or decrease or change the times of payments of the amount payable under a maintenance order. Additionally, the court has the power and discretion to temporarily suspend the whole or any part of the maintenance amount and subsequently revive it wholly or in part as it deems fit. For a party to be deserving of an order of variation of a maintenance order, it must be demonstrated that such variation is in the best interest of the child.’’

  1. In the premises, this court finds no merit in this appeal because the appellant has not demonstrated that it is in the best interest of their children to vary the interim orders given by the trial court. This appeal for that reason is disallowed. The matter is referred back to the trial court to fix the matter for hearing. This being a family matter,  I will not make any order as to costs.


SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…7thday of March 2025


    WATSON KAGUCIA BURUGU VS PURITY WATSON KAGUCIA BURUGU VS PURITY