1.The appellant EIM and the respondent ZMO were married between 2003 and 2010. Their child TO was born between them on 10th June 2003. On 16th May 2012 the appellant filed a plaint at the Children Court at Milimani complaining that the respondent had failed to maintain and educate the child. She sought an order that the respondent be ordered to pay Kshs.40,000/= monthly towards the upkeep and education of the child.
2.With the suit was a chamber summons seeking an interim order for payment of fees and upkeep. She obtained interim orders. The application came up for interparte hearing on 27th July 2012. The respondent had been served but had not defended the application. The order for the payment of Kshs.30,000/= was extended. The respondent eventually opposed the application. On 4th August 2012 a consent order was recorded that the respondent would continue to pay the monthly upkeep. On 18th April 2014 a consent was recorded that there was arrears of Kshs.480,000/= owed by the respondent; the respondent would liquidate the arrears by paying Kshs.100,000/= on or before 24th March 2014; the balance of Kshs.380,000/= would be paid in monthly instalments of Kshs.15,000/= beginning 15th April 2014 and on every 15th of succeeding month until completion; the ordered Kshs.30,000/= per month would continue to be paid on the 15th of each month starting April 2014 alongside with the arrears; and, in case of any default, execution would issue for the total arrears. The respondent failed to pay as agreed which led to several notices to show cause at the Children Court.
3.The respondent in Civil Appeal No. 13 of 2013 before this court appealed and was directed to pay Kshs.70,000/= within 30 days and obtained stay for one month. He filed another appeal in Civil Appeal No. 33 of 2013. On 30th May 2013 the orders above were discharged. The appeals were subsequently dismissed.
4.The dispute before the Children Court was eventually heard and a judgment delivered on 30th April 2015. The court considered the financial means of the parties. It ordered contribution towards maintenance of the child. The respondent was to pay the child’s fees and related expenses; he was ordered to pay Kshs.10,000/= monthly towards the child’s food expenses and Kshs.5,000/= monthly towards clothing and entertainment; and lastly, he was to clear the arrears arising from the orders of 27th July 2012.
5.In an application dated 4th May 2016, the respondent sought the stay of the orders dated 27th July 2012, their review and setting aside. He claimed that the orders were based on concealment of material facts; that the appellant had remarried and her new husband should take care of her; and that the Kshs.30,000/= maintenance was excessive as the respondent had other children to take care of.
6.On 21st July 2017 the learned magistrate (Senior Principal Magistrate), having considered the Notice to Show Cause dated 5th August 2016 (because the respondent had failed to comply with the previous orders including the judgment and the arrears having risen to Kshs.608,651/=) and the respondent’s application for review, allowed the respondent’s application for review and ordered the arrears to be dispensed with, thereby dismissing the Notice to Show Cause. She stated as follows:-
7.Earlier in the ruling, the court had observed as follows:-
8.This is the ruling that led to the present appeal whose grounds were as follows:-
9.The appellant asked that the ruling be set aside, the notice of motion dated 4th March 2016 be dismissed with costs and the Notice To Show Cause dated 15th August 2016 be allowed, the respondent be ordered to pay Kshs.713,651/= arrears outstanding as of May 2017 and in default he be committed to civil jail.
10.Mr. Sumba appeared for the appellant and Mr. Oonge appeared for the respondent. They agreed, and filed written submissions on the appeal. I have considered what each had to say.
11.This being a first appeal, this court is called upon to subject the whole evidence before the trial court to a fresh and exhaustive review and reach its own conclusions thereon, while remembering that it did not have the opportunity to see and hear the parties as they testified (Selle & Another –v- Associated Motor Boat Co. Ltd & Others EA 123).
12.On the onset, it should be considered that, even if the respondent was coming to court for review on the application dated 4th March 2016 to review the orders of 27th July 2012, the entire suit had proceeded to conclusion and a judgment delivered on 30th April 2015 following the hearing of the appellant and the respondent. The trial court had, among other things, considered the order of 27th July 2012 and reviewed the parties’ respective evidence as to their means. The parties had the opportunity to say everything about themselves and the child. They had the opportunity to testify as to any changed circumstances, including the tendering of any new and material facts. The orders of 27th July 2012 had been considered, and the payment of Kshs.30,000/= per month reduced considerably. The court had, however, affirmed that any arrears that had accrued following the order of 27th July 2012 be fully paid by the respondent. The respondent had, mischievously, not attached the judgment of 30th April 2015 whose effect was to confirm the order of 27th July 2012. The judgment was not appealed against, and it was the decree of the judgment that the appellant sought to execute by the notice to show cause dated 15th August 2016.
13.It should be recalled that, following the order of 27th July 2012, the parties had consented to the satisfaction of the decree therein. There was the consent of 8th October 2012 and the consent of 18th March 2014. In the consent of 18th March 2014 the respondent had acknowledged that the arrears had grown to Kshs.480,000/= and had committed himself to paying the same. In the application for review subject of this appeal, the respondent did not inform the court about this undertaking to pay the arrears and which undertaking he had not honoured. It is trite that an order made with the consent of the parties becomes a contract to be honoured by the parties, and cannot be varied and/or discharged unless it can be shown that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court, or if the consent was obtained without sufficient material facts, or in general for a reason which would enable a court set aside an agreement (Flora N. Wasike –v- Destimo Wamboko eKLR).
14.It is material that none of the vitiating factors was pleaded or proved in the Children Court to warrant the setting aside of the orders of 27th July 2012 which had been confirmed by the consents entered into on 8th October 2012 and 18th March 2014.
15.Even assuming, for instance, that the child had since gone to boarding school, it was evident that the respondent’s previous obligation to it had not been met.
16.On the question whether the appellant had since remarried, she categorically denied this in her replying affidavit. The Honorable Court stated as follows:-She never admitted that she was married. In any case, the respondent who had claimed that she had remarried had the duty to prove it. He had not.
17.Lastly, it is on record that the respondent had unsuccessfully challenged the orders of 27th July 2012 on appeal.
18.I hope I have said enough to show that the ruling of 21st July 2017 was wholly erroneous and is hereby set aside. Specifically, the application dated 4th March 2016 is dismissed with costs. The order dismissing the notice to show cause dated 15th August 2016 is set aside. The application is reinstated and shall be heard by the trial court on a priority basis as this is a children matter.
19.In those terms, the appeal is allowed with costs.