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MagistratePartially AllowedPlaint dated 11th February, 2025 (suit number not stated in judgment)· [2025] KEMC 162 (KLR)

MPL. (Suing As the Mother Andnext friend Of L.L.L. – A Minor) v LL (Children's Case E002 of 2025) [2025] KEMC 162 (KLR)

Senior Principal Magistrate's Court (Children's matter), Maralal
17 July 2025
2,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate ruled both parents equally responsible for their child: joint custody, shared costs, and a one-sided parental responsibility agreement worth nothing.

What this practically means

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Executive summary

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By a plaint dated 11th February 2025, the plaintiff mother of a child born in 2023 sought actual physical custody of the minor, supervised access for the defendant father, monthly maintenance of Kshs 10,500, school fees and related expenses at school-going age, and medical cover. The defendant opposed, asserting he had provided regular maintenance and had executed a parental responsibility agreement before the Children's Officer, which the plaintiff declined to sign. At trial, the plaintiff admitted in cross-examination that the defendant had sent money directly via Mpesa, bought clothes and a bicycle, and that she had been recruited as a Kenya Prisons Service constable. The defendant admitted no Mpesa remittance between January and May 2025, with the last being Kshs 1,000 on 6th November 2024. The court framed three issues: legal representation, legality of the parental responsibility agreement, and share of parental responsibility. It held that Mr. Mbugua, having filed no notice of appointment, was improperly on record with no right of audience, striking out only his written submissions. The parental responsibility agreement, signed by only one party, was held not binding. On parental responsibility, the court found it joint and equal; the defendant's loan-taking did not diminish his duties. The court ordered joint legal custody, actual physical custody with the father during the mother's nine-month prisons training, reversion of custody to the mother thereafter upon return to court, 50:50 sharing of the Kshs 10,500 monthly maintenance (father to pay Kshs 5,250, payment suspended until training completion), joint sharing of school fees, retention of the Mtiba medical cover by the father, and each party to bear their own costs. Right of appeal was 30 days.

Key legal issues

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01

Legal representation of the defendant

Holding

Counsel was improperly on record for failing to file a notice of appointment; he had no right of audience and only his written submissions were struck out.

Reasoning

The defendant entered appearance in person and later instructed counsel who never lodged a notice of appointment under Order 9 of the Civil Procedure Rules. The court found counsel had no right of audience. Because the defendant's pleadings predated counsel's entry, they stood; only the submissions filed by the un-regularised advocate were struck out.

p. 5
02

Legality and force of the parental responsibility agreement

Holding

The agreement was not binding as it was signed by only one party.

Reasoning

The defendant relied on a parental responsibility agreement executed in the presence of the Children's Officer, urging that courts cannot rewrite contracts. The court found the agreement had only been signed by one party (the defendant), the plaintiff having refused to sign, so it bound no one and nothing flowed from it.

p. 5
03

Share of parental responsibility and custody

Holding

Parental responsibility is joint and equal; monthly maintenance of Kshs 10,500 is shared 50:50, with joint legal custody and physical custody moving to the father during the mother's prisons training.

Reasoning

Both parties conceded joint and shared responsibility under sections 31 and 32 of the Children's Act, 2022. The defendant's loan-taking to frustrate deductions did not diminish his legal responsibility since he took the loan knowing his subsisting parental duties. The court assessed Kshs 10,500 as reasonable monthly needs, halved it, and rearranged physical custody on account of the mother's recruitment as a Prisons Service constable, taking judicial notice that infants are not permitted at the prisons college during training.

p. 6

Legal principles established

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  • Counsel who has not filed a notice of appointment is improperly on record and has no right of audience
  • A parental responsibility agreement signed by only one party is not binding
  • Parents have equal parental responsibility and neither has a superior right over the other

Court orders

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  1. 1.Written submissions filed by Mr. Mbugua, who did not regularize his appearance, struck out; defendant's earlier pleadings remain unaffected
  2. 2.The parental responsibility agreement, signed by only one party, is not binding and nothing flows from it
  3. 3.The pleaded sum of Kshs 10,500 being the monthly needs of the child shall be shared 50:50, with the father ordered to pay Kshs 5,250 per month
  4. 4.Legal custody shall be joint
  5. 5.Actual physical custody of the minor shall be with the father during the 9 months the mother undergoes training at the Kenya Prisons Service College
  6. 6.Actual custody shall revert to the mother once she completes training and is deployed, with the parties returning to court for the orders to be effected
  7. 7.Joint and equal sharing of the minor's school fees and school related expenses once the minor attains school going age
  8. 8.The father shall retain the child in the Mtiba medical cover
  9. 9.Payment of the Kshs 5,000 (5,250) is suspended till the plaintiff completes her prison service training and the parties return to court for effectuation
  10. 10.Each party to bear his/her own costs
  11. 11.Right of appeal is 30 days

Authorities

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Legislation

  • Children's Actsection 2
  • Children's Actsection 101
  • Children's Actsection 31(1)
  • Children's Actsection 32(1)
  • Civil Procedure RulesOrder 9 rule 7
  • Civil Procedure RulesOrder 9 Rule 9
  • Evidence Actsections 107 to 109

Cases cited (6)

  • Chelule & Another –V- Kuria & Another
    Appeal No. E001 of 2022 (2024) KEELC 88 KLR
  • Monica Moraa –vs- Kenindia Assurance Co. Ltd.
    [2010] eKLR
  • Martha Olela & another v Jackson Obiera
    C.A 16 of 1979
  • RA versus JNO (Suing as the Next Friend and Mother to the Minors IO and MM)
    [2024] KEHC 2557 (KLR)
  • National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd
    [2002] 2 EA 503 [2011] eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction over the minor's custody and maintenance under the Children's Act, 2022

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, "MPL. (Suing As the Mother Andnext friend Of L.L.L. – A Minor) v LL (Children's Case E002 of 2025) [2025] KEMC 162 (KLR)", Case Analysis (2025). Plaint dated 11th February, 2025 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/162/eng@2025-07-17

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