Tzs v Abp

3. e. The appellant is hereby granted the prayers sought in respect of maintenance on behalf of the issues. f. The Appellant be hereby granted the prayers sought in respect of shelter or housing on behalf of the issues. g. The appellant be hereby granted the prayers sought in respect of motor vehicles on behalf of the issues h. That the appellant be hereby granted the prayers sought in respect of damages and refund of maintenance costs. i. The Honorable Court revokes the orders that parties shall bear their costs. j. The costs of this Appeal and the original suit be borne by the Respondent. k. This Honourable Court be pleased to grant such further Order(s) as may be just and appropriate. The Appeal was canvassed via written submissions. Only the Appellant filed submissions dated 24th June 2025. The crux of the appeal is found in the 2nd paragraph of the submissions where she statesThe Appellant submits that the judgment falls short of the legal standards required by the Constitution, to make provision for children rights, parental responsibility, alternative care of children including guardianship,….. of Kenya, the Children Act, and established jurisprudence, by disregarding the best interests of the children, failing to adjudicate live and pleaded issues, and ultimately issuing a decision that benefits the non-compliant parent at the expense of the children’s dignity, security, and continuity of care. 4. She then proceeds to challenge the decision of the trial Magistrate under the following headsa. Failure by the trial court to properly consider procedural mandates, judicial standards leading to erroneous conclusions. The Appellant submits that the Court failed to give due consideration to the weighty and consequential issues and instead concentrated on peripheral issues. She submits that the Trial Court failed to judiciously consider the claim for maintenance and specifically the claim for backdated maintenance. She faults the Magistrate for failing to find that she was entitled to a reimbursement and costs. The decision is faulted for failure to give reasons and failure to award costs. Reference is made to the decisions in Njoroge v Njoroge (Civil Appeal 267 of 2018) KECA 457 (KLR) (20April 2023); Auron Odipo t/a Baraka Bookshop v Boitallin Supply & Trading Company Limited & another [2016] eKLR and Judicial Service Commission v Ndururi (Civil Appeal 650 of 2019) [2021] KECA 365 (KLR) (5 March 2021) (Judgment) b. Failure by the Trial Court to consider Appellants pleadings, evidence, and submissions thus arriving at an erroneous conclusion It is submitted that the decision of the Court does not reflect that the judgment fails to consider that the evidence of the appellant was uncontroverted. Reference is made to the decision in Karuru Munyororo v. Joseph Ndumia Murage & Another [Nyeri HCCC No. 95 of 1988]. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/289/eng@2026-01-19 2

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c. Failure by the Trial Court to acknowledge that the Appellant’s case is unchallenged and to grant judgment in her favor accordingly. The court failed to appreciate that the respondent did not counter the pleadings and especially the amended plaint. Reference is made to the decisions in YT v TA [2019] eKLR, and Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] eKLR, on the consequences of the failure opposing side to adduce evidence. d. Failure by the Trial Court to assess 1st Respondent’s Financial Capacity and hold him accountable for maintenance obligations reflecting his true income The appellant faults the Court for failing to find that the respondent was a man of immense wealth and the Children were as of right entitled to a lifestyle commensurate with his means. In other words the court ought to have found that the children were entitled to maintain their life style. She relies on the decision in JKN v HWN [2019] eKLR for the submission that the Court out to have been guided by the needs of the Children. Further the Court erred in not accounting for the accrued obligations in only providing for the post judgment maintenance and placing undue significance to the convenience of the respondent as opposed to that of the children. She relies on the decision in NKG v SGB (Family Appeal E035 of 2022) [2024] KEHC 5658 (KLR) (22 March 2024). e. Failure by the Trial Court to properly interpret and apply Principles of parental responsibility and maintenance, including entitlement of backdated relief and to recognize Children’s Accrued rights during Minority, resulting in age-based discrimination. The applicant submits that the respondent delayed the conclusion of the matter, justice required that the Children be provided for by back dated maintenance and reference made to the decision in Badshah v Urmila Badshah Godse (2014) 1 SCC 188 f. Failure by the Trial Court’s misdirected itself by law by treating the Appellant’s prayer for shelter under the Children’s Act as a claim for matrimonial property, thereby mischaracterizing the issue and failing to address the actual relief sought The Court misapprehended the claim for the minor’s right to provided for shelter and a residence to a claim for matrimonial property and therefore erred in dismissing the claim. Analysis and Determination 5. 6. Having considered the pleadings herein and submissions filed I discern that the following are the issues for determinationa. Whether the appeal herein is merited b. Who should pay costs of the Appeal Before I embark on considering the merits of the appeal, I remind myself of the duties of the appellate court which were succinctly set out by the court in the decision of Mwangi v Mambo [2025] KEHC 8438 (KLR) as(13) This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/289/eng@2026-01-19 3

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hearing their evidence first hand. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (14) The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held by as follows;.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally. (15) The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth; Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed… (16) `It is a strong thing for an appellate court to differ from the findings on a question of fact, of the magistrate who had the advantage of seeing and hearing the witnesses. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses… But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion… 7. I have had opportunity to consider the record of the trial Court. The Appellant first testified on 22nd October 2012 and was cross examined from 28th November 2012, 14th February 2013. It was to proceed for further hearing on 15th February 2013, but did not and there is an interlude occasioned by interlocutory applications and adjournments. Eventually the appellant again took to the witness stand on 3rd September 2019, when it appears the matter proceeded de novo on the basis of amended plaint dated 3rd May 2016. The matter was deferred to 4th September 2019 for defence hearing but the defence did not attend Court and therefore the Court proceeded to enter judgment in favour of the plaintiff and in the judgment directed thata. Parental responsibility of the Children be extended beyond their 18 years https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/289/eng@2026-01-19 4

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b. The defendant shall provide for college fees and related expenses for the children. This shall be in their current colleges or colleges parties shall agree. c. The 1st defendant shall further provide medical cover for the children during the time they shall be studying. d. The 1st defendant shall be engaging directly with the children on their needs during their studies. e. There shall be liberty to apply f. Each party will bear their own costs. 8. Indeed, the plaintiff placed before the Court voluminous documentation in support of her case. Demonstrating the respondents lavish lifestyle and the comfort the children enjoyed prior to fall out between the parents. She argues that the Court made no reference to these in its decision. 9. There is a wealth of jurisprudence on whether brevity of a Court’s decision constitutes sufficient ground on its own to overturn a decision. One such case is Donald Mwangi & Waguthu Farmers Ltd v Virginia Waithira Mungai [2006] eKLR where the Court observedI agree that the Trial Magistrate was economical with his words in his judgment, and that the same does not analyses the authorities cited to him. Indeed, the judgment is very brief. However, brevity does not necessarily mean that the submissions were not considered or taken into account. 10. I have looked at the judgment, the Court was extremely terse. It referred to the amended plaint and summarized the prayers sought. Also referred to the defence and summarized the testimony of the appellant. He then proceeded to summarize the issues for determination. 11. I have considered the pleadings and the judgment. At the outset, I will state that even where a matter is undefended a party is required to prove its case. They do not get an automatic free pass. See the decision in Gatonye & Another v Kinyae & 2 Others [2025] KEHC 11706 (KLR). 12. The Court’s decision to avoid making a finding on prayers 4, 5, 5A, 5B of the amended plaint is well grounded as in any event the appellant had an alternative prayer 5C. In my view the Court exercised its discretion as provided by the law. This was a matter in which the Children were above 18 years at the conclusion of the trial. In its judgment, after providing for the educational and medical needs for the minor at Order 4 of its judgment, the Court provided that ‘the 1st defendant would engage directly with the Children on their needs during their studies’. In my view, the Court exercised Solomonic wisdom as it deliberately stepped outside the battle of wills between the parents and accorded agency to the children in its judgment. This approach by the Court is in line with Section 8(3) of the Children Act, 2022 which requires that Children be accorded an opportunity to be heard. 13. The Applicant contends that the Children suffered prejudice as notwithstanding that the matter was protracted there were no interim orders and this meant she had to provide for the children, she therefore seeks a reimbursement for the provision she made for her children. 14. I have looked at the proceedings on 16th April 2012, the Court declined to grant interim orders of maintenance having found that the existing arrangement was sufficient. Parental responsibility is a shared responsibility. A parent cannot proceed to, as in the instant case provide for the children without consulting the co parent and then proceed to treat this as a debt. The Children’s Act was never intended https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/289/eng@2026-01-19 5

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to supply ammunition to parents in this manner. The preambular paragraph of the Act is clear. It is an Act of parliament to Give effect to Article 53 of the Constitution, to make provision for children rights, parental responsibility, alternative care of children including guardianship,….. 15. At the end of the day, the Court strives to make decisions that are in the best interests of the Child. In the final analysis the Court’s duty was to make a decision that would ensure the Children’s basic needs were met. Having regard to the decision I find that the Court satisfied the legal duty. 16. The applicant challenges the Court’s decision not to award costs. Section 27(1) of the Civil Procedure Act grants the Court broad discretion in awarding Costs. Although the general rule is that costs will follow the event, however for good reason the Court will depart. In this instance, the parties are parents of the children subject of the proceedings. See the decision in Njamumo v Mwobe [2025] KEHC 3938 (KLR). It is assumed that the proceedings were initiated and defended in good faith. It is in the interest of fostering family reconciliation that courts will not award costs in family matters. 17. For this reason, I dismiss the appeal in its entirety, with no order as to costs. It is so ordered. SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 19th DAY OF JANUARY, 2026. M. NYAUNDI HIGH COURT JUDGE In the Presence of: Fardosa Court Assistant TZS—Appellant in Person https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/289/eng@2026-01-19 6

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