DA v ANW (Children's Case E022 of 2026) [2026] KEMC 663 (KLR)
The bottom line
#A Bungoma Children's Court ruled that both parents must equally share the cost of raising their children, and school choices require agreement from both parents.
What this practically means
#Executive summary
#Key legal issues
#Whether the application founded on repealed provisions of the Children Act 2001 was fatally defective
Although applications grounded on repealed law are generally fatally defective, the court declined to strike out the application in a children's matter because doing so would militate against the children's best interests and caused the Respondent no prejudice.
The Supreme Court's decision in Mungai v Housing Finance Company establishes that no court can be moved on the basis of a repealed law. However, the prevailing principle that the child's best interests are paramount, reinforced by Article 159(2)(d) on justice without undue regard to procedural technicalities as applied in C K K v C M M, led the court to determine the application on its merits since the Respondent understood and adequately answered the orders sought.
Whether the Respondent alone should pay interim maintenance and school fees
Both parents were ordered to contribute equally to the children's upkeep and school-related expenses in the interim, with a fallback formula if they fail to agree on schools after the current academic year.
Section 110 of the Children Act imposes joint and equal parental responsibility for maintenance, and sections 113 and 114(2) empower and guide the court on maintenance orders. The parties' net monthly salaries are almost equal, and per AAO v BOO and MOA v HAO no parent should bear more than an equitable share. Since the Respondent did not participate in choosing the current schools, he cannot be forced to pay for them, but the children should remain in their current schools until the academic year ends in their best interests.
Whether the Respondent should have the children's legal and physical custody in the interim
The status quo on physical custody was maintained (EW with the Respondent's side, SI and AJ with the maternal grandmother), and both parents were granted equal legal custody.
Guided by the Supreme Court's custody guidelines in MAK v RMAA, section 12 of the Children Act, international norms and Re G, a parent should not be denied custody absent exceptional circumstances. Here, the nature of the parents' jobs and places of work means neither can have physical custody, and the children's ascertainable wishes expressed in court prompted the current arrangement, so the status quo should not be disturbed.
Legal principles established
#- An application grounded on repealed provisions of the law generally confers no right and is fatally defective, but in children's matters the court will consider the merits in the best interests of the child.
- Parents have a joint and equal responsibility towards the maintenance of their children.
- A parent ought not be denied custody of a child except in exceptional circumstances.
- The choice of children's schools must be made through consultation and concurrence of both parents based on their respective financial capacity.
Court orders
#- 1.The Plaintiff/Applicant and the Defendant/Respondent to equally contribute towards the children's upkeep and general maintenance in the interim
- 2.The Plaintiff/Applicant and the Defendant/Respondent to equally cater for the children's school fees and school-related expenses in the minors' current schools until the conclusion of the current academic year
- 3.The parties to have a sit-down upon the conclusion of the current academic year and choose a school or schools for the minors where the Defendant/Respondent can afford the children's educational needs
- 4.In default of agreement on the choice of schools, the Defendant/Respondent to pay school fees and school-related expenses equivalent to what he used to spend in the public schools the children were transferred from, with the Plaintiff/Applicant paying the balance, if any
- 5.The status quo on the children's physical/actual custody be maintained pending the hearing and determination of the suit
- 6.The Plaintiff/Applicant and the Defendant/Respondent are granted legal custody of the children in the interim, including the right to participate in major educational, religious and medical decisions
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Articles 45 and 53 of the Constitution and sections 4, 23, 81, 82, 83, 88, 90, 91 of the Children Act; Order 40 of the Civil Procedure Rules and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DA v ANW (Children's Case E022 of 2026) [2026] KEMC 663 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/663/eng@2026-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.