High Court 18527 of 2025

5. The court further noted that the Respondent had been providing for the minors alone. It held that parental responsibility is joint and non-waivable. It found no evidence that the Appellant earned KES. 120,000 as alleged, but nonetheless imposed obligations consistent with a significantly higher income bracket. 6. The final orders required the Respondent to shoulder shelter, rent, and clothing; while the Appellant was directed to provide the minors’ food, meet medical costs, obtain medical cover, and pay three quarters of the school fees in a private school. Visitation was granted to him without supervision. 7. The Appellant is aggrieved by those findings, and by the dismissal of his review application. 8. The appeal raises substantial questions regarding the evaluation of evidence, the proportionality of maintenance orders, the application of the best interests of the child principle, and the allocation of parental responsibility between unmarried parents. It further raises a procedural matter on whether the trial court erred in holding that it lacked jurisdiction to review its judgment. 9. I have considered the Record of Appeal, including the judgment, the proceedings, and the Appellant’s submissions. The Respondent did not file submissions in this appeal. 10. This being a first appeal, this Court is under a duty to re-evaluate the evidence, assess and weigh it as a whole, in order to arrive at its own findings and independent conclusion. 11. In doing so, the Court has to take into consideration that it neither saw nor heard the witnesses testify. This duty was well set out by the predecessor of this Court in Okeno v Republic [1972] EA 32 as follows: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R., [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R., [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses," see Peters v Sunday Post, [1958] EA 424. Grounds of appeal 12. The Appellant raises eighteen grounds, distilled into the following principal issues: 1. Whether the trial court properly evaluated the evidence 2. Whether paternity was properly determined 3. Whether the award of full custody was justified 4. Whether the trial court imposed unreasonable and unsustainable maintenance obligations 5. Whether the best interests principle was correctly applied 6. Whether the court erred in holding that it lacked jurisdiction to review its own judgment 7. What orders this Court should issue. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18527/eng@2025-11-26 2

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Analysis and Determination Whether the trial court properly evaluated the evidence 13. The Appellant contends that the learned magistrate failed to evaluate his affidavit of means, and that despite finding no proof of the alleged KES. 120,000 monthly income, the court nonetheless imposed obligations consistent with a high-income earner. 14. At the heart of appellate jurisdiction lies the classic authority Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, where the Court of Appeal held that: “ An appellate court is not bound necessarily to accept the findings of fact by the trial court. An appeal to this court… is by way of retrial and the principles upon which this court acts are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions.” 15. The law requires a trial court to demonstrate on the face of the record that it has considered all the evidence presented and to give a logical basis for its findings. Although the magistrate expressly acknowledged that the Respondent had not proved the Appellant’s alleged income of KES 120,000, the court did not reconcile that absence of proof with the substantial financial obligations it imposed. The resulting order, particularly the requirement for the Appellant to shoulder the bulk of private school fees, presupposed a significantly higher income than was supported by the evidence. This inconsistency reveals a material misdirection in the evaluation of the parties’ financial capacities. 16. Equally, the trial court did not engage with the Appellant’s affidavit of means, which was the only documentary evidence of income before it, nor did it interrogate the Respondent’s assertion that she earned KES 10,000 monthly, an allegation that was similarly unsupported by any proof. 17. By failing to analyse these central issues, the court omitted to evaluate material evidence relevant to the determination of maintenance. That omission amounts to an error in principle, and I therefore find merit in this ground of appeal. Whether paternity was properly determined 18. Each of the minors’ birth certificates bears the Appellant’s name as father. He neither questioned their authenticity nor challenged the accuracy of the particulars entered, including the attribution of paternity. In the absence of any such contest, the certificates stood as prima facie evidence of paternity. 19. Given that prima facie position, the evidentiary burden shifted to the Appellant to disprove paternity. He tendered no evidence to discharge that burden. The trial court was therefore entitled to accept the documentary record as conclusive for purposes of determining paternity. Whether award of full custody was justiffed 20. Article 53(1)(e) of the Constitution states that every child has the right to parental care and protection, including equal responsibility of both parents. Section 81 of the Children Act affirms that neither parent has superior custody rights. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18527/eng@2025-11-26 3

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21. The leading authority from the Court of Appeal on custody of children is Githunguri v Githunguri [1979] KLR 50, where the court held that: “ Both the father and the mother of a child have an equal right to the custody of the child and neither parent has a superior claim. The paramount consideration is the welfare of the child.” 22. The trial court correctly acknowledged that parental responsibility under Article 53(1)(e) of the Constitution is a joint obligation of both parents. However, having so recognised, it proceeded to vest both actual and legal custody exclusively in the Respondent without offering any justification for excluding the Appellant from legal custody. 23. The minors have been residing with the Respondent, and their day-to-day stability has not been challenged. In those circumstances, it is reasonable for actual custody to remain with her. Nevertheless, joint legal custody required substantive consideration, for the Constitution envisages that both parents, irrespective of their relationship with one another, must participate in major decisions affecting their children’s’ welfare, including education, healthcare and overall upbringing. 24. The court’s approach effectively alienated the Appellant from his children, a position that has been condemned in several precedents, including ZAK & Another v MA & Another [2013] eKLR, where the court held that custody decisions must not be based on gender bias but on the child’s best interests and parental equality. 25. The trial court’s failure to undertake any analysis on whether joint legal custody would advance the minors’ welfare amounted to a misdirection. In matters of custody, a court must demonstrate that it has weighed the respective roles of each parent and considered whether shared decision-making would promote stability, continuity, and the children’s long-term development. 26. Having reviewed the record, I find that the trial court did not sufficiently interrogate whether joint legal custody would better serve the minors’ best interests, despite the constitutional presumption of equal parental responsibility. In the circumstances of this case and in the absence of any evidence that the Appellant is incapable of participating in major decisions concerning the children, this Court finds that joint legal custody is appropriate. Whether the maintenance orders were fair and proportionate 27. Maintenance obligations must be founded on proven means and must be structured in a manner that is fair, proportionate and consistent with the constitutional principle of equal parental responsibility. The Court of Appeal has consistently underscored that the duty to provide for a child is shared and must reflect each parent’s actual capacity. 28. In PKM v CMM (Civil Appeal No. 94 of 2021), the Court of Appeal expressed itself in clear and binding terms when it stated: “ Parental responsibility is an equal obligation… The duty is shared between the two parents and the contribution of each depends on his or her resources. It is unjust to impose a disproportionate burden on one parent in the absence of evidence of ability.” 29. The trial court’s approach departed from this standard. Despite acknowledging that the Respondent had not proved the Appellant’s alleged income, and despite having before it only the Appellant’s affidavit of means, the court nonetheless imposed financial obligations that far exceeded the evidence of his capacity. Nothing in the record explained why private schooling was necessary, nor why public https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18527/eng@2025-11-26 4

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schooling which the Appellant stated he could reasonably afford was considered inadequate. The resulting orders placed a disproportionate and unsustainable burden on one parent, contrary to wellestablished jurisprudence that parental responsibility must be shared equitably and in accordance with each parent’s proven means. 30. In J.O. v S.A.O [2016] eKLR, the Court of Appeal articulated the governing standard in clear terms and held that: “ The child’s best interests are served by sustainable orders that ensure consistency of care and avoid unnecessary disruption. The court must consider the ability of each parent, so that the orders made do not become a source of conflict or instability.” 31. The guidance from the Court of Appeal makes clear that maintenance orders must be grounded in realism and aligned with the proven means of each parent; otherwise, they risk creating financial strain that ultimately harms, rather than promotes, the welfare of the child. 32. In the present case, the order requiring the Appellant to meet three quarters of private school fees was unsupported by any evidence of his ability to shoulder such a burden and carried a clear potential to generate conflict and instability between the parties. Maintenance obligations must therefore be fashioned in a manner that is sustainable and responsive to the actual circumstances of the parents. 33. In light of these considerations, I find that the maintenance orders made by the trial court cannot stand. Whether the best interests principle was correctly applied 34. Article 53(2) of the Constitution establishes the best interests of the child as the paramount consideration in all matters concerning them. 35. The Court of Appeal in J.O. v S.A.O (supra) provided clear guidance on the application of the best interests principle, emphasising that orders affecting children must be sustainable, proportionate, and reflective of each parent’s proven ability. In this case, the trial court imposed financial obligations that placed undue strain on the Appellant despite the absence of evidence demonstrating his capacity to meet them. Such strain is ultimately inimical to the minors’ welfare, for it undermines stability and increases the likelihood of conflict between the parents. A realistic arrangement, grounded in each parent’s actual means, better promotes the children’s long-term interests. 36. It follows, therefore, that the best interests of the minors demand a variation of the lower court’s maintenance orders so that they reflect a fair and sustainable allocation of parental responsibility. Whether the trial court erred in dismissing the review application 37. The governing principle is set out by the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, where the court stated: “ A court will not sit on appeal over its own judgment. But it has jurisdiction to correct mistakes and errors apparent on the face of the record. Review is permissible where there is discovery of new evidence or an error that is manifest and self-evident.” 38. This pronouncement affirms that although a trial court retains jurisdiction to correct patent errors on the face of its judgment, it cannot, under the guise of review, reopen issues that go to the merits or reevaluate contested evidence, for that would amount to sitting on appeal over its own decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18527/eng@2025-11-26 5

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39. The concerns raised by the Appellant in the review application chiefly relating to the trial court’s assessment of the evidence and the proportionality of the resultant orders were matters squarely within the appellate domain and not amenable to review. To that extent, the magistrate could not revisit them. 40. However, the learned magistrate fell into error only to the extent that he held that he lacked jurisdiction to entertain review altogether. The law grants jurisdiction to review for narrowly circumscribed purposes, but the relief the Appellant sought did not fall within that scope. Accordingly, while the outcome of the review application was correct, the magistrate’s reasoning on jurisdiction was flawed. What orders should follow? 41. In determining the appropriate relief, the Court must frame orders that uphold the stability and welfare of the minors, reflect the constitutional principle of equal parental responsibility, and ensure that any maintenance obligations are proportionate to the parties’ proven means. 42. The evidence on record supports retaining actual custody with the Respondent for continuity, while vesting legal custody jointly in both parents so that each participates in major decisions affecting the children. A fair and sustainable approach to maintenance equally requires that the parties share the responsibility for the children’s school fees, food, shelter, medical expenses and clothing. 43. Given that the parties’ respective earnings were not established on the evidence, and bearing in mind the need for a stable and affordable educational arrangement, the minors should attend a public school unless both parents mutually agree to an alternative that is sustainable and in their best interests. 44. The Appellant should continue to enjoy liberal and unsupervised access to the minors so as to maintain and strengthen his relationship with them, as this remains an essential component of their emotional and developmental well-being. Disposition 45. The appeal succeeds in part. The judgment of the lower court dated 07th September 2023 is hereby varied and substituted with the following orders: 1. Actual custody of the minors PBM, MKM, GKM and GOM shall remain with the Respondent. 2. Legal custody is granted jointly to both the Appellant and the Respondent. 3. The minors shall attend a public school unless the parties mutually agree to an alternative arrangement. 4. Maintenance obligations shall be shared equally at a 50:50 ratio, including school fees, food, shelter, clothing and medical expenses. 5. The Appellant shall enjoy reasonable, liberal and unsupervised access, including alternate weekends, half of school holidays and regular electronic communication. 6. Each party shall bear their own costs of the appeal, this being a children’s matter. Orders accordingly. DELIVERED AT NYAMIRA THIS 26TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18527/eng@2025-11-26 6

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Appearances Court Assistant - Hilda For Appellant - Mr. Omwoyo for Yeli & Co.Advocates For Respondent - Ms. Bundi for Bundi Grace & Company Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18527/eng@2025-11-26 7

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