EWM (Suing as the Mother and Next Friend of the Minor MH) v SMG
The bottom line
#A Nairobi court ordered a father to pay KES 5,000 monthly for his child's food, ruling that equal parental responsibility doesn't mean equal money.
What this practically means
#Executive summary
#Key legal issues
#Validity and adoption of the Partial Settlement Agreement
The agreement is valid and adopted as an order of the Court since no vitiating factor was alleged
Relying on Wasike v Wamboko and Mallya, consent orders have contractual effect and may only be set aside on grounds such as fraud, collusion or lack of consensus. Neither party challenged the mediation agreement on any such ground, and both proceeded on the basis that all issues except food were resolved.
Whether food is a component of parental responsibility
Food constitutes basic nutrition and is a fundamental component of parental responsibility under section 31 of the Children Act, 2022 and Article 53(1)(e)
Article 53(1)(e) imposes equal responsibility of both parents to provide for the child whether married or not. Section 31 of the Children Act, 2022 expressly includes the duty to maintain a child by providing basic nutrition, shelter, water and sanitation, clothing, medical care and basic education.
Apportionment of the food obligation between the parents
The Defendant to pay Kshs.5,000 monthly towards food; the Plaintiff, as custodial parent, meets the balance
Section 114 requires consideration of income, financial obligations, the child's needs and obligations to other children. The Defendant earns Kshs.17,000 gross and supports three other children, but has undertaken to meet school fees. Equal responsibility does not require identical monetary contributions; the custodial parent's obligation continues.
Effect of the Plaintiff's failure to file submissions
The failure is not an admission; the Court determined the issue on pleadings and evidence
Citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, submissions cannot substitute for evidence. The Court considered the pleadings, evidence, Children's Officer's report, the minor's in-camera evidence and the Defendant's affidavit of means rather than treating the absence of submissions as determinative.
Legal principles established
#- A consent judgment or order has contractual effect and may only be set aside on grounds that would justify setting aside a contract
- Equal parental responsibility does not necessarily require equal monetary contributions; contributions may be apportioned according to each parent's circumstances
- A court cannot adopt a maintenance figure merely because it appears in the prayers; it must be reasonable, proportionate and sustainable
- Failure to file submissions does not amount to an admission of the opposing party's position
Court orders
#- 1.The Partial Settlement Agreement dated 5th August 2026 is adopted as an order of the Court with the force and effect of a judgment
- 2.The parties shall comply with all terms of the Partial Settlement Agreement concerning custody, access, education and school fees, medical care and clothing, which matters are marked as settled
- 3.The Defendant shall contribute Kshs. 5,000.00 per month towards the minor's food and nutritional needs
- 4.The said sum shall be paid to the Plaintiff on or before the 5th day of every month, commencing on 5th October 2026
- 5.The Plaintiff shall meet the balance of the minor's food and nutritional requirements while the minor remains in her actual custody
- 6.The Defendant's food contribution is in addition to and separate from his obligation under the Partial Settlement Agreement to meet school fees and school-related expenses
- 7.The food order shall not vary or affect any other obligation voluntarily assumed under the Partial Settlement Agreement
- 8.Both parties shall continue to exercise joint and equal parental responsibility in accordance with Article 53 of the Constitution and the Children Act, 2022
- 9.Neither party shall deny the minor food, education, medical care, clothing, access or other basic necessity as a reason for any disagreement
- 10.The parties shall cooperate in safeguarding the minor's welfare, education, health, development and relationship with both parents
- 11.Either party may apply for variation of the financial orders upon demonstrating a material change in circumstances
- 12.There shall be no order as to costs
- Jurisdiction invoked
- Children Act, 2022 (ss. 31, 113, 114) read with Article 53 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EWM (Suing as the Mother and Next Friend of the Minor MH) v SMG", Case Analysis (2026). Children's Case E897 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.