High Court 4838 of 2026

paternity of the minors were subsequently conceded during the defence hearing. The union produced two children, P.M. and G.M., who are presently adolescents aged 16 and 14 years, respectively. 4. The parties separated on or about 12 January 2012. The circumstances of the separation were heavily contested. The Respondent testified that the separation was precipitated by the Appellant's cruelty, emotional distress, and physical abuse, which compelled her to flee the matrimonial home with the infants to seek refuge. Conversely, the Appellant testified that the Respondent departed the matrimonial home of her own volition and without prior consultation while he was away on active military training in Laikipia. Following the separation, the minors remained in the actual and physical custody of the Respondent, who currently resides with them in rented premises on Kangundo Road. The Appellant subsequently married another woman, with whom he has three other children, currently aged 8, 6, and 3 years old, all of whom are entirely reliant upon him for their upkeep and education. 5. The financial capabilities of the parties form the crux of the dispute. The Respondent testified that she is employed as a casual labourer and has occasionally undertaken short-term courses in dressing and beauty. In her Plaint, she averred that her income from intermittent, low-wage jobs is grossly insufficient to independently meet the expansive financial needs of the growing minors. She initially sought orders compelling the Appellant to pay Kshs. 101,500/= monthly for upkeep, alongside a claim for alleged outstanding school fees arrears totalling Kshs. 1,152,000/= stemming from an earlier dismissed suit (Nairobi Children's Case No. 1013 of 2012). 6. The Appellant is a serving non-commissioned officer, specifically a Sergeant in the Kenya Air Force, serving under the Kenya Defence Forces (KDF). During the trial, he adduced documentary evidence of his earnings by producing his official KDF payslip for the month of March 2024. Whereas his gross earnings are Kshs 85,686/=, the net income is 27,098.35 7. In his testimony, the Appellant contextualized these deductions. He stated under oath that the substantial Co-operative Bank loan facility was utilized to construct a permanent house for the Respondent and the minors at their rural home. He conceded that he had not consulted the Respondent regarding the construction, rendering the house currently unoccupied, but maintained that the investment was intended for the minors' ultimate benefit. Furthermore, the Appellant testified that he maintains an active Britam Education Policy that is nearing maturity, which would yield a lump sum of approximately Kshs. 140,000/= to be utilized strictly for the minors' educational advancement. He also affirmed that the minors are eligible for comprehensive medical coverage under the KDF Armed Forces Medical Insurance Scheme, subject only to the Respondent providing their original birth certificates for registration. 8. During cross-examination, the Appellant indicated a willingness to contribute a supplementary monthly cash amount of Kshs. 5,000/= for the first-born, Kshs. 1,500/= for the second-born, and Kshs. 1,000/= towards food, totalling Kshs. 7,500/= monthly. He vehemently argued that any order exceeding this amount, when coupled with the directive to pay all school fees and provide medical cover, would exceed his net financial capacity, placing him in an impossible position given his paramount obligation to shelter, feed, and educate his current wife and his three other minor children. 9. Aggrieved by the decision of the trial court, the Appellant lodged this appeal on the following grounds: a. The learned Magistrate erred in law and in fact in failing to consider the Appellant’s financial status while making the monthly maintenance orders; b. The learned Magistrate erred in law and in fact by failing to consider the Appellant’s other immediate family commitments when reaching her decision; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 2

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10. c. The learned Magistrate erred in law and in fact by unfairly apportioning to the Appellant excessive and substantial parental responsibilities despite such responsibility being equal and shared; d. The learned Magistrate erred in law and in fact by failure to interrogate and analyse the Plaintiff’s earning capacity and thus arrived at the wrong conclusion on the monthly maintenance orders; e. The conclusions arrived at in the judgement are not supported by the analysis of the evidence. The Appellant accordingly prays that Final Order No. 6, regarding the payment of Kshs. 20,000/= monthly maintenance, be set aside or varied to alleviate the disproportionate financial imposition, allowing him to equitably maintain both his first and second families. Analysis & Determination 11. It is trite law that a first appellate court must approach its task by undertaking a comprehensive reevaluation, re-assessment, and re-analysis of the entire record of the evidence tendered before the trial court. This Court must draw its own independent conclusions, albeit while bearing in mind that it did not have the distinct advantage of hearing and observing the demeanour of the witnesses as they testified. This foundational principle is well-established in Kenyan appellate jurisprudence, mirroring the duties elucidated by Wendoh J. in JWN v MN KEHC 8527 (KLR), a case heavily relied upon by the Appellant. 12. Furthermore, an appellate court will generally not interfere with the exercise of discretion by a trial court unless it is satisfied that the trial court misdirected itself on the law, took into account irrelevant matters, failed to take into account relevant matters, or that the decision is so plainly wrong that it occasions a miscarriage of justice. This is particularly crucial in matters concerning the welfare of children, where the trial court exercises a wide, albeit structured, discretion under the Children Act, 2022. 13. Having meticulously reviewed the Record of Appeal, the trial court's judgment, the Appellant's submissions, and the relevant statutory and jurisprudential authorities, the issues crystallizing for determination by this Court are as follows: i. Whether the trial court erred in its assessment of the Appellant's financial capacity, specifically regarding the interplay between Gross Income, voluntary commercial loan deductions, and the statutory restrictions imposed by the Kenya Defence Forces Act and the Employment Act. ii. Whether the maintenance order violates the constitutional doctrine of equal protection by failing to accommodate the competing rights of the Appellant's other children. iii. Whether the trial court misapplied the doctrine of Equal Parental Responsibility by failing to properly interrogate the earning capacity and economic duties of the resident parent. iv. Whether the Final Order of Kshs. 20,000/= monthly maintenance is excessive, punitive, or duplicative, warranting appellate intervention and variation. Financial Capacity, Commercial Debt, and Statutory Employment Restrictions 14. The foremost grievance advanced by the Appellant is that the trial court ordered him to pay a monthly cash sum of Kshs. 20,000/= without adequately considering his net salary of Kshs. 27,098.65. The Appellant posits that a maintenance order consuming approximately 74% of his net take-home pay is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 3

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unconscionable, mathematically oppressive, and legally untenable, as it leaves him with a mere Kshs. 7,098.65 to sustain his entire household. 15. The Appellant's payslip reveals a gross income of Kshs. 85,686.00. After mandatory statutory deductions, predominantly Pay As You Earn (PAYE) taxation, his disposable income stands at approximately Kshs. 67,596.85. However, the most significant depletion of his salary is a Co-operative Bank loan deduction of Kshs. 31,553.45. 16. In family law jurisprudence, a persistent question arises: Can a parent shield their income from child maintenance obligations by contracting substantial commercial loans, thereby presenting an artificially depressed net salary to the court to evade their parental duties? The unequivocal answer is in the negative. Child maintenance is not merely a statutory obligation; it is a fundamental constitutional right vested in the child under Article 53(1)(e) of the Constitution. Commercial debt, conversely, is a private contractual arrangement between a borrower and a financial institution. 17. The Court has repeatedly pronounced that the constitutional rights of a child cannot be subordinated to the commercial interests of banking institutions or the voluntary financial encumbrances of a parent. In SKM v MWI (Civil Appeal No. 21 of 2014) [2015] eKLR, the Court emphasized that while maintenance orders must be based on evidence of the parent's financial status, voluntary obligations cannot supersede the primary duty to the child. Therefore, a parent cannot utilize a bank loan as an impenetrable shield to defeat a child maintenance claim. The Court must evaluate the parent's actual earning capacity and gross disposable income before discretionary borrowing is factored in. 18. Financial obligations are inherently tied to parental responsibility, and the existence of debts and loan commitments cannot extinguish or diminish the paramountcy of the child's best interests under Article 53(2) of the Constitution and section 31 of the Children Act. Child maintenance takes priority over bank loan deductions. 19. In the instant case, the Appellant testified that the loan was utilized to build a house for the Respondent. While this suggests the loan was not acquired for the malicious dissipation of assets or to wilfully evade maintenance, it remains a voluntary encumbrance. The trial court was perfectly within its rights to look beyond the Kshs. 27,098.65 net figure and assess the Appellant's capability based on his broader financial footprint. 20. However, this analysis is profoundly complicated by one unique statutory constraint applicable to the Appellant, which the trial court seemingly overlooked. 21. The Appellant is a serving military officer. Section 243(5) of the Kenya Defence Forces Act, 2012, expressly stipulates: "A member of the regular force shall not participate in any other gainful employment unless prior authority has been obtained from the Cabinet Secretary". 22. The Appellant correctly submits that, unlike a civilian parent who might be directed by a court to seek secondary employment, engage in supplemental business activities, or leverage the ‘gig economy’ to augment their income for child support, he is statutorily barred from doing so. Engaging in unauthorized external business would expose him to severe disciplinary action, courtmartial proceedings, and potential dismissal from the forces, which would ultimately prejudice all his dependents. 23. Consequently, the Appellant's financial pie is strictly finite. His gross military salary represents the absolute, impenetrable ceiling of his earning capacity. When a parent's income is absolutely capped by statutory strictures, the apportionment of that finite income must be executed with surgical precision to avoid driving the parent into destitution or triggering secondary legal violations. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 4

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24. Nonetheless, section 121 of the Children Act provides for the enforcement of maintenance orders. The proviso to section 121(4) (c) states thus: Provided that the Court shall not, unless special circumstances exist, make an order for the attachment of the respondent’s earnings in an amount which shall exceed more than fortyfive per cent of the respondent’s annual income in any period of twelve months; 25. This provision, therefore, counters the provision of section 19(3) of the Employment Act, 2007, commonly referred to as the "one-third rule," which dictates that the total amount of all deductions made by an employer from an employee's wages at any one time shall not exceed two-thirds of such wages. In other words, when it comes to the issue of enforcing child maintenance via attachment orders, the Court possesses the wide latitude to order a parent to pay an amount of up to 45% of the monthly income. 26. In summary, the trial court did not err in looking beyond the Appellant's artificially low net salary, as voluntary commercial loans do not supersede the constitutional mandate of child maintenance. However, the trial court fundamentally misdirected itself by failing to adequately weigh the strict, statutory finality of the Appellant's income as dictated by the Kenya Defence Forces Act. An order of Kshs. 20,000/= against a strictly capped income pool, already heavily burdened, lacks the necessary proportionality. Competing Rights of Children in Multiple Families 27. The Appellant submits that he is married and has three other children aged 8, 6, and 3. He contends that the trial court's order of Kshs. 20,000/=, layered upon his obligations to pay school fees and provide medical cover for the subject minors, effectively starves his second family of their rightful maintenance, exposing them to a violation of their constitutional rights. 28. This Court must confront the sociological and legal reality of blended and multiple families. Article 27 of The Constitution, prohibits discrimination on any grounds, including the circumstances of birth. Article 53 guarantees the right to basic nutrition, shelter, education, and health care to every child. 29. In family jurisprudence, there is no hierarchy of children. The children of a first marriage or prior cohabitation hold no superior legal or constitutional claim over the children of a subsequent marriage. Conversely, the arrival of children in a current marriage does not extinguish or dilute the inherent rights of children from a previous union. They stand in absolute constitutional parity. 30. When a court is faced with a parent who has multiple dependents dispersed across different households, the "best interests of the child" principle—enshrined under Article 53(2) of the Constitution and section 8 of the Children Act—must be applied universally and holistically to all the parent's children. A Court cannot elevate the best interests of the children before it by completely disregarding the survival of the children who are not party to the suit. 31. In the persuasive decision of ZAK & another v MA & anor [2013] eKLR, the Court emphasized the strict constitutional parameters of equal protection and parental responsibility regarding children across complex family dynamics. While interim maintenance orders must be guided by the Children's Act, a parent cannot arbitrarily avoid parental responsibility for any of their children. 32. Applying these principles to the evidentiary matrix: If the Appellant’s available disposable income is approximately Kshs. 67,000/=, this single financial pool must sustain the Appellant himself, his wife, and his five children in total. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 5

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33. The trial court ordered the Appellant to: a. Pay school fees and school-related expenses for P.M. and G.M. (The record indicates P.M. is in a private boarding high school, and G.M. is in Junior Secondary). b. Provide comprehensive medical cover for both. c. Pay an additional Kshs. 20,000/= monthly in cash. 34. Given the notoriously high costs of private boarding school education in Kenya, the cumulative financial burden of the trial court's order easily consumes the vast majority of the Appellant’s disposable income. This results in a grossly disproportionate allocation of resources. While P.M. and G.M. are fully catered for, the Appellant's three other children and his current household are left to survive on the residual fragments of his salary. Such an outcome violates the equal protection provisions of The Constitution. 35. A fair, well-reasoned maintenance order must recognize that the Appellant's financial pie must be equitably divided to nourish five children, not just two. The trial court's failure to factor the Appellant's other three children into the mathematical formulation of the maintenance award constitutes a reversible error of law. Equal Parental Responsibility and the Resident Parent's Duty 36. The Appellant heavily relies on the constitutional doctrine of equal parental responsibility, arguing that the Respondent cannot shirk her financial duties by merely claiming to be a casual labourer with low income. 37. Article 53(1)(e) of The Constitution is explicit and unyielding: "Every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not". 38. This constitutional edict is codified further in sections 31, 32, and 110 of the Children Act, which collectively mandate joint and equal parental responsibility to maintain the child with basic education, medical care, shelter, and other needs. 39. However, equal responsibility does not inevitably translate to equal monetary contribution. The jurisprudence is well-settled that courts must eschew a rigid, mathematical division of 50/50 in every case, particularly where income disparities exist. 40. The Appellant correctly cites MK v C. KK [2015] eKLR, where the Court astutely observed that "parental responsibility is shared and not equal based on the financial position of each parent" and appropriately acknowledged the non-monetary, nurturing role of the resident parent. 41. This principle was recently reaffirmed in PAOO v EAA [2024] KEHC 8001 (KLR), a case highly applicable here, though uncited by the parties. The Court affirmed that parental responsibility is shared but not necessarily equal, tailoring the apportionment of specific duties (e.g., the father handling educational costs while the mother manages clothing and shared medical expenses) to the parties' respective financial capabilities and the child's best interests. Similarly, in JW v AW [2021] eKLR, the Court held that equal parental responsibility does not necessitate equal financial contributions when parents have unequal earning capacities. 42. The Respondent in the present case has had actual physical custody of the minors since 2012. She has undeniably borne the heavy, unquantifiable burden of daily care, nurturing, and emotional protection https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 6

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—contributions that possess immense economic value and fulfill a highly significant portion of her parental responsibility under section 31 of the Children Act. 43. Nevertheless, the modern legal framework does not permit the resident parent to entirely abdicate direct financial contribution simply because they provide physical care or claim unemployment. The Appellant rightly relies on the persuasive decision in ARM v NWS (Family Appeal E015 of 2022) KEHC 4096 (KLR), where Mutai J. observed: “ The Constitution presumes that a male and a female parent of any given child are equally able to provide for him/her. Where that is not the case the court must strive, as near as is justly and fairly possible, to procure equitable contribution... In this case the court accepted the averments of the respondent without question. In so doing it may have given her a disincentive not to seek employment or engage in remunerative self-employment.". 44. Likewise, in JWN v MN KEHC 8527 [2019] (KLR), Wendoh J. emphasized that a party claiming an uncertain source of income must establish to the court's satisfaction that she has made an effort to provide for the upkeep of the children, concluding, "I expect the respondent to do something to earn a living and in my view, the cost of food should be shared...". 45. In the present case, the Respondent is a healthy adult capable of economic productivity. While her income as a casual labourer may be modest, she bears an ongoing legal and constitutional duty to engage in remunerative activities to the best of her ability to support her children. 46. The trial court, to its credit, did recognize the Respondent's duties. The magistrate ordered the Respondent to provide shelter, clothing, food, and utilities. This was a legally sound application of the law, assigning specific heads of expenditure to the resident parent in line with the logic in PAOO v EAA. 47. The error, however, arises in the cumulative effect of the trial court's orders, leading to structural duplication, which brings us to the final issue for determination. Re-evaluation and Apportionment of the Maintenance Order 48. The gravamen of this appeal is whether Final Order No. 6 (the Kshs. 20,000/= monthly cash payment) is excessive, punitive, or duplicative. 49. The Appellant is already shouldering the heaviest, most capital-intensive financial burdens. He is ordered to pay school fees and school-related expenses for two teenagers until the completion of university. He is ordered to provide comprehensive medical cover. Imposing an additional Kshs. 20,000/= per month on a man whose gross income is Kshs. 85,686/=, who cannot legally seek alternative employment under section 243(5) of the KDF Act, and who has three other minor children to feed, is oppressive, punitive, and unsupported by a balanced analysis of the evidence. It transforms the constitutional ideal of shared responsibility into sole responsibility. 50. While I recognize the inherent reluctance of an appellate court to interfere with maintenance quantum, the failure of the trial court to balance the Appellant's finite, statutorily-capped income against the rights of his other children, coupled with the duplicative nature of the maintenance order, warrants appellate intervention to prevent a miscarriage of justice. Courts must be careful not to issue orders in vain or orders that inevitably drive a party into contempt due to sheer mathematical impossibility. 51. The Appellant proposed a monthly contribution of Kshs. 7,500/= during the trial. While the Court appreciates his attempt at quantification, the reality of the current macroeconomic climate dictates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 7

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that Kshs. 7,500/= for two adolescent children is on the lower end of the spectrum, even when strictly factoring in the mother's concurrent duty to provide food and shelter. 52. A just, equitable, and sustainable balance must be struck. The Appellant must contribute a supplementary cash amount to assist the Respondent with the inevitable daily incidentals and transport costs that arise in the care of teenagers, without bankrupting his second family. 53. Guided by the principles of shared but proportionate responsibility, and taking into account the Appellant's heavy provision of education and health cover, I find that a monthly cash contribution of Kshs. 10,000/- is reasonable, proportionate, and within the Appellant's realizable means. This sum perfectly balances his duties to the subject minors against his obligations to his other dependents. 54. This reduction is not a victory for the Appellant to the detriment of the children; rather, it is a legally sound acknowledgment of the Respondent's equal statutory duty under section 31 of the Children Act to engage in economic activities to bridge the gap for the children's daily upkeep, food, and shelter, as was correctly conceptualized (but poorly executed) by the trial court. 55. Having comprehensively re-evaluated the evidence, the rigid legal constraints of the Appellant's military employment, the competing constitutional rights of all children involved across both families, and the respective economic capacities of the parties, this Appeal succeeds in part. 56. I hereby make the following final orders: i. The Appeal is allowed in part. ii. Orders No. 1, 2, 3, 4, and 5 of the Decree issued on 24 May 2024 in Milimani Children's Case No. E080 of 2023 are hereby upheld and affirmed. For the avoidance of doubt, the Appellant shall continue to meet the medical expenses, school fees, and school-related costs for the minors, and the Respondent shall retain actual custody and provide shelter, clothing, food, and utilities. iii. Order No. 6 of the said Decree is hereby set aside and substituted with the following order: That the Defendant/Appellant is hereby ordered to provide the sum of Kshs. 10,000/per month towards the supplementary daily maintenance of the two minors. That the said sum shall be payable on or before the 5th day of every month directly to the Plaintiff/Respondent via a mutually agreeable channel. iv. The Appellant is directed to immediately finalize the process of enrolling the subject minors into his Armed Forces Medical Insurance Scheme and the Britam Education Policy. The Respondent is directed to fully cooperate by providing the minors' Birth Certificates and any other requisite documentation within 14 days of the delivery of this Judgment. v. Each party shall bear their own costs for this Appeal. DATED AND DELIVERED AT NAIROBI THIS 17 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For Appellant: Mwasya h/b Musyoki For Respondent: N/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 8

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Court Assistant Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4838/eng@2026-04-17 9

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