REPUBLIC OF KENYA

IN THE HIGH COURT

AT ELDORET

CIVIL APPEAL NO. 3 OF 2020

KMM......................................................................................................APPELLANT

VERSUS

MMO...................................................................................................RESPONDENT

(An Appeal from the Judgment of the Hon. D. Milimu (RM) delivered

on 10^th January, 2020 in Eldoret Children’s Case No. 120 of 2019)

JUDGMENT

1. KMM, the Appellant filed Eldoret Children’s Case No. xxx of 2019 against MMO, the Respondent. The Appellant is the father of the minor (TM) while the Respondent is the mother. The Appellant claimed that at all material times to this suit the Respondent and himself were living as husband and wife. That their union was blessed with TM (the minor) on 10^th November, 2014. It was the Appellant’s case that in August 2016, the Respondent got employment in Kapsabet and therefore had to relocate with the minor. The Appellant alleges that on or about January, 2018 he visited the minor at the Defendant’s home and found the minor was unwell and had not been taken to hospital. The Appellant further claimed that the Respondent has now cut all links of communication with him and that he has now been denied access to the minor who is very fond of him. The Appellant further alleges that the Respondent is now not keen on staying with the minor. In his plaint dated 10^th June, 2018 the Appellant sought for the following orders;

1. A mandatory order vesting the actual custody, care and control of the minor to the Plaintiff with shared legal custody with the Defendant.

2. Costs of this suit.

3. Such further or other relief that this Honourable Court may deem fit and just to grant.

2. In the judgment of 10^th January, 2020, the learned Magistrate granted legal and actual custody of the minor to the Respondent with unlimited visitation rights/ access to the Appellant upon prior arrangements with the Respondent. The Respondent was to provide shelter, food, clothing, house help and utility bills for the minor. The Appellant was directed to provide school fees and all other school needs for the minor as per the fees structure as and when the same falls due. Both parties were directed to equally provide for medical needs of the minor when need arises. The court directed the Appellant to pay Kshs.10,000/= per month as maintenance towards the upkeep of the minor and the same was to be payable on or before the 5^th of every month.

3. Being dissatisfied with part of the judgment, the Appellant has appealed to this Court on the following grounds:

1. That the learned magistrate erred in fact and in law in proceeding to draft and deliver her judgment in the absence of the Children’s Officer’s Social enquiry report as ordered on 6^th November, 2019.

2. That the learned Magistrate erred in law and in fact by taking into account irrelevant factors and failing to take into account relevant factors thereby arriving at an erroneous judgment.

3. That the learned trial Magistrate misdirected herself by failing to apply or applying wrong principles on the assessment of quantum on maintenance awardable to the Respondent thus awarding monthly maintenance which was manifestly excessive in the circumstances.

4. That the learned Magistrate erred in law in fact by failing to rescuse herself in the matter as counsel who represented the Respondent in the suit represented the learned Magistrate in a case of a similar nature in the station where the Respondent works.

5. That the learned trial Magistrate erred in law and fact by failing to consider the evidence of the Appellant.

6. That the learned Magistrate misapprehended the facts and the law in her ruling.

4. The Appellant prayed that the judgment and decree of the subordinate court be substituted with an order dismissing the Respondent’s suit with costs and allowing the Plaintiff’s suit. The Appellant also prayed that the judgment of the subordinate court dated 10^th January, 2020 be set aside and be substituted with a proper finding by this Court, and in the alternative a retrial be ordered. That costs of the appeal be awarded to the Appellant and that the court grants any other relief that it deems fit and just.

5. Parties filed their submissions which I have duly considered together with the authorities cited.

Determination

6. As I consider this the matter, I am mindful of the constitutional and statutory imperative that the best interests of the children are paramount. Article 53(2) of the Constitution of Kenya, 2010 provides:

A child’s best interests are of paramount importance in every matter concerning the child.

And Section 4(2) and (3) of the Children Act (the Act) which provide:

(2) 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 a primary consideration.

(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act 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—

(a) safeguard and promote the rights and welfare of the child;

(b)  conserve and promote the welfare of the child;

(c)  secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

7. The Appellant has faulted the learned trial Magistrate for determining the matter in the absence of the social inquiry reported which had been ordered on 6^th November, 2019. The court in SMW V EWM [2019] eKLR stated that:

“Sharing of parental responsibility for children should not be arbitrary.  It should be well laid out by the parties.  Children courts have a responsibility, to pursue the procedure that least disrupts the lives of the children involved, that least adds to the friction between warring parents. My humble view is this:

1. The first point of stop should have been the social inquiry report.  S.76 of the Children Act clearly lays out the ‘welfare check list’. The principles laid out there provide for the court an objective checklist which can be investigated through a request for a social inquiry report from the Department of Children Services. Through this report the court would be provided with an independent analysis of the state of the child or children as at the time the matter is being litigated.  It would also bring on board the voices of the children to be heard above the cantakary that is their parent’s disagreement. The report would give the status quo of the welfare of the children, and the status of each parent through a home visit, if necessary, school visit. The court would also get a glimpse of the underlying issues which the warring parents would have an opportunity to bring on board giving the court the chance to interrogate the necessity for psycho social support and any other appropriate s. 114 orders.”

8. This court is alive to the fact that ordinarily, custody of children of tender years will often be granted to the mother of the child unless it is demonstrated that there are exceptional circumstances to grant custody to the father.  However, it is my view that such a social inquiry is necessary and would have aided the trial Magistrate in determining whether the Respondent’s living conditions were suitable to offer care and protection to the minor.

9. The Appellant has also faulted the learned trial Magistrate for applying the wrong principles on the assessment of quantum on maintenance awardable to the Respondent, by awarding monthly maintenance which was manifestly excessive in the circumstances. Further in determining the terms of maintenance the Appellant has faulted the trial court for failing to consider the earning capacity of the parties, that none of the parties filed an affidavit of means neither did they tender any evidence of their monthly salary or income.

10. The law relating to maintenance of a child is contained in the Constitution of Kenya, 2010 and the Children Act. Article 53 of the Constitution provides:

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;

 11. Maintenance is an aspect of parental care and is the responsibility of both parents of a child. Section 94(1) of the Children Act stipulates the considerations by which the Court shall be guided when making an order for financial provision for the maintenance of a child. These considerations include inter alia:

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 foreseeable future;

b.    the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;

c.    the financial needs of the child and the child’s current circumstances;

d. …

12. While considering the order for financial provision for the maintenance of children, the 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. As regard, the children, the Court was required to bear in mind their financial needs and circumstances.

13. The record before court has no indication on the earning capacity of the parties. The record however only indicates that the Respondent took a loan of Kshs. 800,000/= and gave it to the Appellant to further his education.

14. Parental responsibility is a shared responsibility between the parents of a child. The learned Magistrate directed the Appellant to take care of school fees and school related expenses and in addition a monthly sum of Kshs. 10,000/=. The Respondent on the other hand was directed to take care of shelter, food, clothing, house-help and utility bills.  It would appear to me that the learned Magistrate placed a heavier responsibility on the Appellant without knowing just how much each of the parties brought in by way of income. With regard to the terms of maintenance, I note that the Children’s Court failed to conduct a proper inquiry and assessment into the level of the incomes of both parents and their respective financial responsibilities in apportioning maintenance.

15. The Appellant herein has also faulted the learned trial Magistrate for failing to recuse herself having been represented by counsel for the Respondent in a case of a similar nature.

16. I have looked at the proceedings before the Hon. D. Milimu Resident Magistrate.  Both parties were ably represented in court by counsel.  The Appellant did not raise the issue of bias during the proceedings.  No application was made to the trial Magistrate for her recusal from hearing of the case.  It is trite that perceived bias against a Judicial officer ought not to cause disqualification of the Judicial officer from presiding over a case unless such bias is personal or based on some extra-judicial reason. I have considered the averments by the Appellant and it is my finding that no semblance of bias was demonstrated. In any event, the Appellant should have raised the issue of bias at the trial court and not at the appeal stage.

17. In the end, having evaluated the evidence and the law, I am satisfied that there is sufficient ground to interfere with the order of the learned Magistrate, in so far as it relates to the maintenance of the minor. Accordingly, I make the following orders:

1. I remit this case back to the Children’s Court only to the extent that the court shall conduct a proper inquiry and assessment into the financial ability of each parent to apportion responsibility equitably and in accordance with affidavit of means.

2. The Children Officer to avail a social inquiry report on the welfare of the minor based on the check list under section 76 of the Children Act including a home visit for each of the parents.

3. Each party shall bear its own costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH OF MARCH 2022.

E. K. OGOLA

JUDGE