W S I v M A D [2017] eKLR

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MARSABIT
CIVIL APPEAL NO.2 OF 2017
W S I ………… APPELLANT
VERSUS
M A D ………RESPONDENT
(From original Civil Suit Children No.35 of 2016 of Principal Magistrate’s court at Marsabit) JUDGEMENT
The Appellant and the Respondent got married in the year 2010. The marriage was dissolved through Marsabit Kadhi’s case number 27 of 2016 on 8th November, 2016. The respondent filed children case number 35 of 2016 before the Marsabit Resident Magistrate’s court. The trial court awarded custody to the parties’ two children to the respondent and ordered the appellant to pay Ksh.8000 monthly for the upkeep of the children.

The memorandum of Appeal filed on 16.2.2017 does not give the grounds of appeal. It only states as follows:
The above appellant, seeks extension of time to file an appeal against the decision of the children court of 18th January 2017 in children’s case No.35 of 2016, whereby the appellant was ordered to pay a monthly maintenance for his two children – A W and H W in the amount of Kshs.8,000.00 on the following grounds namely:
1. He is currently not in gainful employment.

During the hearing of the appeal, the appellant submitted that he was ordered to pay Ksh.8000 monthly. He is not in gainful employment. He does support the children and sends money to the respondent. He stays with his mother who is sick. The children are attending school in Marsabit and are living with the respondent’s mother. The first born child is now 7 years old. All the two children are in school. When the children stay with him they attend madrasa also.

On her part, the respondent submitted that the trial court held that she stays with the children. When they were married, the appellant was not employed but still catered for the family. Now that they are divorced, he has not been paying for the expenses for the children. He used to pay school fees, rent and other expenses. The respondent lives in Nairobi. The appellant declined to take the children to

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W S I v M A D [2017] eKLR

private school in Nairobi. She agreed to take the children to a public school but still the appellant failed to go to Nairobi and have the children enrolled in a school. The appellant was allowed to stay with the children during school holidays. She was working in Nairobi but her services were terminated. She is willing to allow the appellant stay with the children if the appellant moves out of his mother’s house. The appellant has been sending her Ksh.4000 monthly. The first born is about 6 years old and is a boy while the second born is a girl. She is about 5 years old.

The record of the trial court shows that each party testified on her/his behalf before the trial court. The respondent testified that she sued the appellant because he was not providing for the children. She informed the court that the appellant has means to provide for the children as previously he was a meat supplier.

On his part, the appellant testified that he was not employed. They had two children out of the marriage. He admitted his fatherhood to the children. He further stated that he was sending money monthly to the respondent as ordered by the Kadhi’s court.

The trial Court gave custody of the children to the respondent. The appellant seems to be seeking custody of the children. He stated that he lives with his sick mother. It is clear to me that the appellant’s sick mother will not be able to take care of the children. The children are below 7 years old and need their motherly care. I do agree with the findings of the trial court that the best person to take care of the children is the respondent. I do order that the children shall continue living with their mother.

On the issue of monthly maintenance, the appellant contends that he is not employed. He has shown his willingness to cater for the children despite the fact that he is not in formal employment. Although the appellant has not been sending the monthly expenses of Ksh.8000 as ordered by the Court, the respondent has not complained about it. I saw the respondent and she seems to be ready to accommodate the appellant so long as the appellant will cater for the children.

As observed by the trial court, what is paramount is the interest of the children. Even if the court directs the appellant to pay a lesser sum monthly for the children’s upkeep, it is the responsibility of the parents to ensure that the children go to school and their fees are taken care of. The children need clothing, food and medical care. This is the responsibility of the parents.

My observations is that the two parties herein cannot cater for the children’s school fees in a private school. I do order that the children be placed in a public school either in Nairobi or Marsabit. Should the respondent opt to take the children to a private school, then she will be the one to pay the school fees.

I do further order that the children remain in the custody of the respondent. The appellant shall have access to the children during school holidays or over the weekends if the children are living in Marsabit. Both parties are at liberty to agree on the best way forward on the children’s schooling as I did not detect any animosity between the parties.

Since the appellant is not able to pay Ksh.8000 monthly, I do reduce that amount to Ksh.6000 monthly. However, should there be need for more expenses caused by unexpected perils such as sickness, the appellant should pay such expenses.

In the end the appeal partly succeeds. I do find that the custody of the children shall remain with the respondent. The appellant to pay Ksh.6000 monthly directly to the respondent. The children to be put in a public school. Each party to meet their own costs.

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W S I v M A D [2017] eKLR

Dated, Signed and Delivered at Marsabit this 9th Day of October 2017 S. CHITEMBWE
JUDGE

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