Dnm v Jmk

6. Spent 7. That the costs of their appeal be awarded to the applicant in any event. 8. Such other and/or further relief as this Honourable Court may deem fit to grant 2. Although the Court directed that the appeal be canvassed via written submissions, neither of the parties had filed submissions at the time I retired to write this judgment. 3. In the impugned ruling the Court Ordered as follows1. The defendant to pay the decretal amount owing to date in 3 equal instalments 2. That the 1st instalment; on 5th November 2023 otherwise, a warrant of arrest to automatically issue for any unpaid instalment. 3. That the Application for review be amended once the decretal sum is paid in full 4. That the Application dated 3rd October is hereby dismissed, no orders as to costs. 5. That leave to appeal is granted. 4. The appellant is aggrieved that the Court has concluded that he has deliberately declined to comply with the judgment of 25th April 2022. That in the impugned decision his application of 12th August 2022 was not heard on its merits especially as in the ruling of 26th September 2023 the Court erroneously held that the appellant had not moved Court to review the judgment herein. He urges that he is confronted by two vague orders. The amount owing (which is denied) has not been established. It is averred that the Court misdirected itself in finding that the negotiations ordered on 6th July 2023 compromised the application dated 3rd October 2023. 5. There is however, a back story to the Appeal. The respondent initiated the suit in the trial Court vide amended plaint in which she sought the following orders- 6. 1. EXclusion orders restraining the Defendant from entering the home in which the minor resides with the plaintiff and or accessing the minor in school. 2. The Defendant to continue paying the minor’s school fees as per school structure and school related expenses. 3. That the Defendant be compelled to pay maintenance towards upbringing of the minor to a tune of Kshs 25000 per month. 4. Costs of the suit The matter proceeded to trial and in Judgment delivered on 25th April 2022 the Court directed1. That any exclusion order that may have been issued at the interlocutory stage is hereby vacated. 2. That for clarity and avoidance of doubt, any access modality that shall here below be fashioned by the court shall not include the Defendant/ father visiting the child at the Plaintiff’s house. 3. That the parties herein are granted joint legal custody of the child. 4. That actual custody, care and control of the child is granted to the Plaintiff/mother as the primary care giver. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2299/eng@2026-02-27 2

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5. That the Defendant/ father is granted supervised access for the first 4 months to the child on every alternate Saturday from 10.30am to 12.00pm 6. That such access shall double up as counselling sessions where both the Defendant/father and the child shall undergo counselling. 7. That parties shall agree on a counsellor failing which the Court shall intervene and appoint one. The parties shall share the costs on a 50/50 basis 8. That upon the lapse of 4 months, a child counsellor’s report shall be filed for a possible review of access orders. 9. That the child shall remain in the current school and the Defendant shall pay all school fees and school related expenses for the child including school fees arrears. 10. That the Defendant shall visit the child’s current school, ascertain the fees payable and either pay or make arrangements to pay. 11. That the Defendant shall also take care of the child’s medical care if required over and above the said cover. 12. That the plaintiff/mother shall take care of the child’s housing, clothing and food needs by virtue of having actual custody thereof. 13. That each party shall bear its own costs of the suit. 7. By 6th June 2022, the respondent was back in court concerned that the appellant was not complying. She sought to execute by way of Notice to Show Cause, school fees arrears amounting to Kshs 34,450 and school related expenses amounting to Kshs 21844. The appellant responded to the application averring that following a complaint lodged by the respondent touching on domestic violence he had been interdicted, was on half salary and therefore not able to support the child as directed by the court. He intimated that he would be filing an application for review of judgment. 8. True to his word he filed application dated 12th August 2022 in which he sought to arrest the pending ruling on the notice to show cause and a review the judgment so that he pays a total of Kshs 3000 towards the school fees and school related expenses of the minor. The Court had reserved 19th August 2022 to deliver ruling on the respondent’s Notice to show cause application. The application dated 12th August 2022 was intended to arrest that ruling. 9. On 23rd September 2022 the Court ruled on the application dated 12th August 2022, and directed that- 10. 1. The defendant’s current payslip be authenticated by his employer 2. The court will proceed to make a determination once the same is filed 3. Mention for compliance on 12th October 2022 4. No order as to costs The record shows that by 27th January 2023, the payslip had not been authenticated and the Court again delivered a ruling on 27th January 2023 wherein it determined that attaching the salary of the appellant was not tenable and gave him an opportunity to furnish the court with a proposal on how he intended to meet his statutory obligation to contribute towards the maintenance for the child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2299/eng@2026-02-27 3

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11. Thereafter the matter was mentioned in Court and on each occasion the appellant. reiterated that there was a change in his financial circumstances he could not comply with the judgment. The respondent contested this. 12. On 24th April 2023, the Court directed that the appellant should have paid fees/negotiated with the school by 8th May 2023. When the parties next appeared before Court, the appellant informed the Court he was negotiating with the school. The respondent stated he was not being truthful. By this time the child had moved to [Particulars Withheld] Preparatory School meanwhile the appellant unaware of this, paid fees to the previous school. 13. By July the parties were said to be negotiating and this is why the appellant’s counsel had not filed submissions. At the same time the Court was informed that the criminal proceedings that had led to his interdiction had been concluded and they were optimistic that he would be reinstated. The Court therefore gave time to the parties to negotiate and set the matter for mention on 9th August 2023. 14. The next time the matter was in Court was on 9th October 2023, the respondent sought a date for application dated 8th May 2023 and the appellant also intimated that the application dated 12th August 2022 was also still pending and sought a ruling date. The appellant filed submissions dated 4th September 2022, titled ‘Defendant’s Written Submission on the Plaintiff’s Notice of Motion Application dated 8th May 2023 and its notice of Motion application dated 12th August 2022’. The Court delivered its ruling on 26th September 2023 with the following orders; 15. 16. 1. That the Defendant shall within 7 days from today’s [sic] make a proposal in writing on how much money he is willing remit every month to settle the said arrears for the Court’s consideration. 2. That failure to make a reasonable proposal, then the Court will apportion the payments. 3. That mention on 4th October 2023. The appellant then filed Notice of Motion dated 3rd October 2023 in which he sought for orders that1. The Court must review its orders issued on 26th September 2023 and 2. The Court must address itself to the Defendant’s Application dated 12th August 2022 seeking to review the Court order following the judgment of the Court on 25th April 2022 before Hon. G.M Gitonga (Mr.) 9PM) must be set aside, reviewed and/ or varied. It is in relation to this application that the Court rendered its ruling of 11th October 2023, the subject of this appeal. Determination 17. At the outset, I must express my grave concern regarding the protracted duration of this litigation. This matter was initiated in the trial court 2017 when the minor was only seven years old; nine years later, this appeal is being heard, and he is now sixteen. The appellant has shifted the focus from a determination of parental responsibility to a process where the Court must exhaust every available avenue to compel him to accept his parental obligations. I am, therefore, deeply conscious of the impact on the child on whose behalf these proceedings are brought. 18. Throughout the past decade, there has been a consistent pattern in which he has attempted to conceal his withdrawal from parental responsibility by resorting to legal technicalities. Despite his repeated claims of lacking the financial means to contribute, the evidence shows that, over the course of ten https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2299/eng@2026-02-27 4

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years, he has not made any genuine effort to pay fees or cover school-related expenses. Notably, the only payments that have been made were the result of imminent court sanctions, rather than voluntary action or good faith. 19. The trial Court told him and I will reiterate it, parental responsibility is a shared responsibility. My review of the Court record shows that his application of 12th August 2022 was considered twice by the Court and on both instances the Court was categorical, he had to make an acceptable proposal on how he intended to meet his parental obligations, by necessary implication the Court rejected his proposal to contribute Kshs. 3000. I also reject that proposal. 20. The primary consideration of a Court in a matter touching or affecting the welfare of a child is the Child’s best interest. See Article 53 of the Constitution of Kenya and Section 8 of the Children Act. The appellant seems to take the view that he is entitled to a review of the judgment of 25th April 2022. The appellant is in blatant disregard of a court order. He has approached the Court with dirty hands and he seeks an equitable remedy, In Caliph Properties Limited vs. Barbel Sharma & Another [2015] eKLR, the Court stated: He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. … He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity. 21. He does not deny paternity of the Child or that the Child is in school. He expects that he will be absolved from his parental obligations if he states he has nothing to offer. I have no hesitation in dismissing the appeal in its entirety. 22. The money deposited in Court will be released to the respondent. 23. Owing to the relationship between the parties, there will be no order as to costs. 24. Parties are at Liberty to appeal, the party exercising their right to do so within 30 days. It is so ordered DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH FEBRUARY 2026. P.M. NYAUNDI JUDGE In the presence of: Fardosa Court Assistant Onyango holding brief for Dorcas Mwae for Respondent Ojonga for Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2299/eng@2026-02-27 5

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