Vao v Dok

medical cover, school fees, and pay a monthly stipend of Kshs.10,000.00/=, while the Appellant would, on the other hand, cater for the Minor’s shelter, food, and clothing and all household utilities. 4. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Memorandum of Appeal dated 20th February, 2025, in which she listed the following grounds; 1. That the Learned Magistrate erred in law and in fact in granting the Respondent overnight access to the Minor in total disregard of the Minor’s tender age, being barely 3 years of age and not having interacted with the Respondent for a considerable period of time since the Appellant and the Respondent separated way back in August, 2023- and even ignoring the access arrangements that were proposed by the parties and that were in place before. 2. That the Learned Magistrate misdirected himself and erred in law and fact in disproportionately apportioning parental responsibilities between the Appellant and the Respondent, oblivious of the Minor’s needs and the respective financial abilities of the Appellant and the Respondent. 3. That the Learned Magistrate erred in law and in fact in failing to analyse the evidence presented before the Honourable court to decipher what would constitute the best interests of the Minor, in the circumstances. 4. That the Learned Magistrate erred in law and in fact in disproportionately apportioning a greater financial burden in the upbringing of the Minor to the Appellant, despite her income being considerably lower than that of the Respondent. 5. She asked the Court to allow the appeal and set aside the Judgment of the lower Court. She asked this Court to grant the Respondent unrestricted access to the Minor, albeit in the presence of the Minor’s nanny or caregiver, in alternative weekends or any other day as may be agreed upon, limited to day time only between 10.00 a.m. and 6.00 p.m. She also asked that the Respondent be given unrestricted and unsupervised access upon the minor attaining the age of 7. Lastly, she asked the Court to direct the Respondent pay Kshs.29,000.00/= monthly towards the Minor’s maintenance. 6. The Appeal was canvassed by way of written submissions. Appellant’s written Submissions. 7. The Appellant submitted that the lower Court was wrong in its apportionment of parental responsibility. She submitted that the Court’s orders in respect of the Minor’s maintenance were skewed, arguing that the Court disproportionately apportioned greater financial burden to her, despite her income being lower than that of the Respondent. She argued that the impugned judgment blatantly departed from the well-settled principles of parental responsibility, thereby occasioning hardship upon her. 8. In addition, the Appellant submitted that the lower Court was wrong in directing the Respondent to procure a separate medical cover for the Minor, notwithstanding the uncontroverted evidence that she enjoys a comprehensive medical scheme to which the Minor is duly enrolled. She argued that it was manifestly illogical and uneconomical to require the procurement of multiple medical covers when the Minor is already adequately catered for, and has no known pre-existing condition necessitating such additional expense. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4040/eng@2026-03-19 2

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9. Lastly, the Appellant submitted that the lower Court was wrong in assessing the monthly maintenance at Kshs.10,000.00/=, arguing that the Court did so without verifying the Respondent’s earning capacity and alleged liabilities. She submitted that the Respondent did not attach any documentary evidence to enable the Court to assess his financial capabilities, and that the lower Court should have ascertained the Respondent’s financial status before making his final decision. She argued that Kshs.10,000.00/= is oppressive to her and that the Respondent is capable of contributing Kshs.29,500.00/= monthly for the Minor’s maintenance. Respondent’s written Submissions 10. The Respondent filed his submissions dated 4th November, 2025, in which he submitted that the lower Court was right in delivering the said judgment. He submitted on the issue of the overnight access to the Minor, which the Appellant had raised in the grounds of Appeal. Notably, the Respondent did not submit on the other issues raised by the Appellant, particularly on the medical cover and the monthly contribution towards the maintenance of the Minor. In a nutshell, he submitted that the Court should dismiss the appeal, arguing that allowing the appeal is not in the best interest of the Minor. Issues for Determination 11. The Court noted that the Appellant abandoned the first 2 grounds of Appeal, in which she had asked the Court to relook the lower Court’s orders allowing the Respondent to have overnight access to the Minor. In her submissions, the Appellant was of the view that, based on the ruling of this Court delivered earlier on 24th April, 2025, the 1st and 2nd prayers in the Memorandum of Appeal were spent. She then went ahead and submitted on the remaining issues. 12. Having made this observation and having considered the Grounds of Appeal and the Appellant’s submissions, I find that there is only one issue for determination, which is; a. Whether the Respondent should be ordered to pay Kshs.29,000.00 monthly towards the maintenance of the Minor, as prayed by the Appellant. 13. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR. 14. Accordingly, this Court is being required to undertake a wholesome review of the Appellant’s suit at the lower court and come up with its conclusion on this particular issue. Whether the Respondent should be ordered to pay Kshs.29,000.00 monthly towards the maintenance of the Minor, as prayed by the Appellant 15. In the Plaint, the Appellant claimed that the Minor’s monthly expenses are Kshs.83,100.00/=, which comprises Kshs.2,000.00/= for water, Kshs.5,500.00/= for Electricity, Kshs.40,000.00/= for grocery, Kshs.25,000.00/= for Nanny, and Kshs.6,500.00/= for clothing. She proposed that the monthly expenses should be shared between her and the Respondent as follows; she takes Kshs.54,100.00/=, while the Respondent takes Kshs.29,000.00/=. The question before this Court is whether she adduced sufficient evidence as to why this Court should order the Respondent to pay Kshs.29,000.00 monthly for the Minor’s maintenance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4040/eng@2026-03-19 3

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16. 17. Section 114(1) of the Children Act 2022 sets out the considerations which should guide a court in making an order for financial provision for the maintenance of a child. These considerations include inter alia: “ (a) The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future; (b) The financial needs, obligations, or responsibilities, which each party has or is likely to have in the foreseeable future; (c) the financial needs of the child and the child’s current circumstances: (d) ......................” The Court in BRO v WJNWM [2022] KEHC 1537 eKLR interpreted the import of the above provisions and held as follows; “ 34. 18. From the above cited provisions, parental responsibility is not relegated to one parent alone. It requires joint effort although not exactly the same. It is not enough for one party to claim that his or her income is too small or little hence not enough to support the baby. See C.I.N v J.N.N(supra) where the court expressed thus; “it will not do for a party to say that she has an uncertain source of income and therefore the responsibly of maintaining the children should be borne by the adverse party. The (said) party must establish to the satisfaction of the court that she has also made an effort to provide for the upkeep of the children.” Courts have also established additional principles to guide the apportionment of parental responsibilities between parents. In M.O.A Vs H.A.O [2021] eKLR, the Court held as follows; “ Although parents may not have equal financial ability for the court to demand equal contribution, one must at least exhibit some sense of seriousness in making some contribution as a sign of good will that he or she is not geared towards overburdening the other parent for the sole purpose of punishing him or her using the best interest of a child principle or as a ground to settle scores out of marital differences.” 19. Lastly, the Court in HKN v LNW [2024] eKLR interrogated a similar issue and observed as follows; “ It is not in dispute that parental responsibility is a shared responsibility and that each parent must be seen to ‘step up to the plate’ and make their contribution towards the maintenance and provision of the Child. In DS (Minor Suing through her Mother) JWM v CKK [2021] eKLR, the Court reiterated that parental responsibility was shared but not necessarily equal and the Court in determining will have regard to the earnings of the parents and the needs of the children. In that case the court cited with approval the decisions in E.M.M Vs M.O.O (2016) eKLR where the Court stated:- “However equal responsibility does not mean equal and similar contribution as the income of each parent, and other nonmonetary contribution must be borne in mind.” 20. The above authorities underscore the principle that parental responsibility is a shared responsibility, but this does not translate into sharing the financial obligations in strict mathematical terms. They https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4040/eng@2026-03-19 4

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underpin that a trial Court should consider the earnings of the parents and the needs of the child(ren), while ensuring that the apportionment of parental responsibilities captures the parents’ joint efforts towards the welfare of the subject Minor(s). 21. Having set out the law and the legal principles governing this dispute, I shall proceed and analyze the evidence on record. 22. The Appellant was PW1. She told the Court that she is an auditor in the office of the Auditor General, with a net income of about Kshs.88,000.00/=. On the medical cover, she testified that both of them have cover, that there is no issue, and that the medical can be shared. She told the Court that she resides with her parents and that they are helping her out. She stated that she can take care of food and shelter, while the Respondent should cater for the Minor’s education. 23. The Respondent was DW1. He told the Court that he is an Insurance Broker and that after deductions of his expenses, he remains with Kshs.11,000.00/=. He stated that he will take education and related expenses. He also stated that he can take full cover for medical should they lose their jobs. He stated that he is willing to take care of the child within his means and that he can reasonably provide Kshs.10,000.00 and do his best to provide anything else. 24. The first issue is to determine the parties’ respective financial capacities. Both parties filed their affidavits of means, and this Court had the opportunity to peruse them. The Appellant averred that she earns a net income salary of Kshs.88,000.00/= and she attached her pay slip to prove the same. The Respondent, on the other hand, averred that he earns a net salary of Kshs.168,072.00/= and that he was only left with Kshs.11,572.00/= after deducting all his personal utilities. Based on these facts, I observe that the Respondent’s gross income is almost double that of the Appellant. 25. The second issue to determine is the Minor’s needs. In the Plaint, the Appellant stated that the Minor’s monthly expenses are Kshs. 83,100.00/=. However, during the hearing of the case, she told the Court that the monthly expenses of the Minor are about Kshs.100,000.00/=. Yet, the Appellant also submitted a different figure in her submissions. Based on these facts, the Court cannot tell which one of the three figures represents the actual estimate of the minor’s monthly expenses. It, however, agrees and appreciates that the Minor has monthly expenses; it is just that the Appellant could not provide a rough estimate. 26. The third issue to consider is the requirement that the apportionment of parental responsibilities captures the parents’ joint efforts towards the welfare of the subject Minor(s). From the testimonies of the parties, they agreed that both had medical cover for the Minor and the Appellant told the court that there was no dispute about it. She also testified that it can be shared. The Respondent told the Court that he can take full cover for medical should they lose their jobs. Based on the parties’ own testimonies, I find that the issue of the Minor’s medical cover was undisputed and that it should be allocated to the Respondent. 27. In addition, the Respondent expressed the wish to take education and related expenses. I also note that the Appellant welcomed this proposal and agreed that the Respondent should cater for the Minor’s education. 28. On the other hand, the Appellant stated that she can take care of food and shelter. I also noted that the Appellant told the Court that she resides with her parents and that they are helping her out. 29. I have carefully considered the circumstances of this case. I have considered the fact that the Minor is barely four years, and that her educational needs and financial expenses related to her education will keep rising as she climbs up the academic ladder. I have also considered the fact that the Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4040/eng@2026-03-19 5

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did not provide a consistent estimate of the Minor’s monthly financial expenses, owing to her shifting positions on the issue. 30. In the end, I find that the Respondent should pay Kshs.10,000.00/= monthly towards the maintenance of the Minor. I thus dismiss the appeal and uphold the lower Court’s finding. Disposition 31. The Appeal is dismissed with no order as to costs. 32. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 19TH DAY OF MARCH, 2026. …………………………….. HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Mr. Mutua Advocate for the Appellant No attendance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4040/eng@2026-03-19 6

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