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High CourtPartially AllowedCivil Appeal No 107 of 2015· [2019] KEHC 6585 (KLR)

In the Matter of a Notice to Show Cause dated 2nd May, 2018 - Child Maintenance Execution Proceedings

High Court of Kenya
18 June 2019
LAL. A. Achode
2,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When enforcing child maintenance, the court requires clear proof of financial hardship and defines which specific costs are the parent's responsibility.

What this practically means

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Executive summary

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This was a Notice to show cause dated 2nd May, 2018 in which the Applicant sought attachment of the Respondent's salary in execution of a decree from a judgment delivered on 13th October, 2016, in which the High Court, on appeal from the Kadhi's Court at Nairobi, adjusted child maintenance from Kshs. 25,000/- to Kshs. 40,000/- per month and directed the Respondent to provide medical cover and pay school fees for the minor. The Applicant, in person, sought recovery of updated arrears of Kshs. 78,361/- covering medical charges, school transport, graduation package fees and personal accident cover, arguing that under Islamic law the financial responsibility of maintenance lies squarely on the father. The Respondent, through Counsel Mr. Ndege, asserted full compliance, denied that transport formed part of school fees, claimed unemployment, and contended the medical cover limits had not been exceeded. The court, guided by Article 53(2) of the Constitution and section 4(3) of the Children Act, held that the Respondent's claim of diminished earning capacity was unsupported by cogent evidence, that yearly incidental costs (activity fee, school diary, progress book, personal accident cover) fell within his school fees obligation, but that transport charges did not. The medical refund of Kshs. 15,000/- was refused because the Applicant chose a hospital whose room charges exceeded the cover limits, and the Kshs. 4,381/- claim failed for want of documentary evidence. The court ordered the Applicant to cater for transport and confirmed the Respondent's continuing obligations. No costs order was made.

Key legal issues

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01

Whether school transport charges fall within 'school fees' under the decree

Holding

Transport is not part of school fees; the Applicant was ordered to cater for it

Reasoning

The court found the Respondent agreed to the school and its fee terms, but transport charges were not classified under term fees or yearly payments in the fee structure. Balancing practical enforcement and the child's best interest, the court allocated transport to the custodial Applicant while confirming the Respondent's obligation on fees and yearly incidental costs.

p. 3
02

Whether the Respondent must refund the medical shortfall of Kshs. 15,000/-

Holding

Refund not warranted; the Applicant bears the additional costs of the hospital chosen

Reasoning

Although the Respondent took out medical cover as directed, the cover had limitations including a daily bed limit. The Applicant chose Aga Khan University Hospital whose room charges exceeded the cover limits, so the out-of-pocket deficit was her responsibility. The court distinguished this from the cover being inadequate per se.

p. 3
03

Whether the Respondent's claim of unemployment excuses further liability

Holding

Claim of diminished capacity not proven; Respondent to continue paying maintenance and yearly incidental costs

Reasoning

The court found the Respondent's assertion that he was no longer employed was unsupported by cogent evidence. He had continuously paid Kshs. 40,000/- monthly maintenance and school fees, and had taken out medical cover according to his means. The quantum of maintenance depends on the means of the party bearing the responsibility.

p. 2

Legal principles established

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  • Orders of maintenance must pass the test of practical enforcement and are guided by the best interest of the child
  • Islamic law places maintenance responsibility on the father, but this does not absolve the mother from contributing where the father's earnings cannot sustain the child's needs
  • A party alleging diminished earning capacity must prove it with cogent evidence

Court orders

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  1. 1.The Applicant shall cater for the minor's school transport charges
  2. 2.The Respondent shall continue to pay child maintenance of Kshs. 40,000/- monthly
  3. 3.The Respondent shall provide medical cover for the minor according to his means
  4. 4.The Respondent shall pay school fees and other incidental costs classified under yearly payments on the fee structure, to wit activity fee, school diary, school progress book and personal accident cover

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 53(2)
  • Constitution of Kenya, 2010Article 24(4)
  • Children Act No. 8 of 2001section 4(3)
  • Civil Procedure Rules 2010Order 22
Jurisdiction invoked
Original supervisory jurisdiction over execution of a decree in a child maintenance matter; child's welfare under Article 53(2) of the Constitution and section 4(3) of the Children Act No. 8 of 2001

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In the Matter of a Notice to Show Cause dated 2nd May, 2018 - Child Maintenance Execution Proceedings", Case Analysis (2019). Civil Appeal No 107 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/6585/eng@2019-06-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.