SS & IHS v HSG (Matrimonial Case E007 of 2020) [2021] KEKC 18 (KLR)
The bottom line
#An Isiolo Kadhi's Court refused to reduce a father's maintenance obligations or give him custody, ruling that children's best interests come first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the applicant is entitled to review of the maintenance order
- 2.whether custody of the two minor children should be granted to the applicant
Key legal issues
#Whether the maintenance order of January 11, 2021 should be reviewed
The application for review fails; no ground under Order 45 was established
Order 45 of the Civil Procedure Rules permits review on three grounds only: discovery of new and important evidence, error apparent on the face of the record, or any other sufficient reason. The applicant demonstrated none. The court instead found the applicant was acting negligently toward his children and was comfortably housed while they lacked accommodation, sustenance and education. The best interests of the child, mandated by the Constitution, the Children's Act, the UNCRC and the Islamic Charter on Family, required enforcement rather than reduction of the maintenance order.
Whether custody of the two minor children should be transferred to the applicant
Custody refused; the children remain with their mother
The applicant chased the respondent and children from the matrimonial home and refuses to support them, amounting to negligence contrary to law. The children, aged 9 and 15, have reached the age of discernment under Islamic law (article 103 ICF) and have rights to expression and opinion under article 13 UNCRC and articles 32 and 33 of the Constitution. Both children chose to remain with their mother, and their views had to be considered.
Whether the applicant must continue funding education of the adult children
Yes; the parental education obligation does not cease at majority
Relying on article 28 UNCRC, section 7 of the Children's Act and articles 114 and 107 of the Islamic Charter on Family, the court held that every parent must ensure children attain the best education according to his means, and that this responsibility does not end at 18 but continues for a boy until able to earn a living and for a girl until married or self-supporting. The applicant was therefore directed to provide education for his two adult children in secondary school and college.
Legal principles established
#- The best interests of the child shall be a primary consideration in all actions concerning children
- Review under Order 45 lies only on discovery of new and important evidence, error apparent on the face of the record, or other sufficient reason
- Children who have reached the age of discernment must have their views considered on custody
- A parent's obligation to educate a child does not end at 18 but until the child can fend for himself, or until a girl is married or self-supporting
Court orders
#- 1.Application for review dismissed
- 2.Applicant directed to forthwith comply with the orders of the court, including settling the balance of three months' rent
- 3.Applicant to provide education of his two adult children in secondary school and college
- 4.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction under Order 45, Civil Procedure Rules, cap 21 Laws of Kenya; children's matters under the Children's Act, cap 141, the Constitution of Kenya (2010) and the Islamic Charter on Family
Relief refused
#Custody of the two minor children
The applicant has acted negligently toward his children and the children chose to remain with their mother; their views must be considered at their age of discernment
Review of maintenance downwards to Kes 5,000 per month
No ground for review under Order 45 was demonstrated; the applicant continues to act in a manner negatively impacting his children's welfare while comfortable
Costs
No orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the best interests of the child shall be a primary consideration in all actions concerning children
The application fails and he is directed to forthwith comply with orders of this court, including settling balance of three month rent and further to provide education of his two adult children in secondary school and college.
No orders as to costs.
Every child is entitled to a standard of living that befits his physical, mental, religious and social growth; a boy until he becomes able to earn a living, if a girl, until she gets married or earns enough to support herself.
Issues in the judgment
#Typographical errors in the judgment: 'suficient' for 'sufficient', and the third review ground is found in the negative ('could find one' where 'could not find one' was evidently intended)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SS & IHS v HSG (Matrimonial Case E007 of 2020) [2021] KEKC 18 (KLR)", Case Analysis (2021). Notice of motion application dated February 1, 2021 (Isiolo Kadhi's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/18/eng@2021-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.