Gtg v Rwn

in early 2023, he sought the intervention of the court to lift the travel ban and warrants, citing a loss of employment and financial strain but proposing a structured settlement. An earlier Magistrate had directed a payment plan of Kshs. 200,000/= as a lump sum and monthly instalments of Kshs. 20,000/=, a plan the Appellant claims he adopted in good faith. However, those orders were vacated in February 2024 following the Respondent’s successful application for recusal of the presiding Magistrate on grounds of alleged bias. The subsequent proceedings led to the impugned Ruling of December 2024, which drastically scaled up the financial burden on the Appellant, mandating a lump sum of Kshs. 810,222/= within 21 days and monthly instalments of Kshs. 100,000/=. The Appellant, aggrieved by these terms and the underlying findings, now invites this Court to exercise its appellate jurisdiction to set aside those orders. The Appellant’s Case 4. The core of the Appellant’s grievance is the perceived failure of the trial court to acknowledge his consistent efforts toward the children’s upkeep despite his overall debt. The Appellant’s submissions are supported by documentary evidence which includes school fee receipts from (Particulars withheld) School and (Particulars withheld) High School. For instance, receipt number 884851 from (Particulars withheld) School, dated 23 August 2024, shows a payment of Kshs. 121,050/= for S.N.G, covering tuition, pre-technical studies, and a chess club fee. A subsequent payment of Kshs. 800/= for an educational trip was recorded on 16 October 2024. Similarly, records from (Particulars withheld) High School indicate substantial payments for V.T.G and J.N.G, totalling over Kshs. 199,000/= in August 2024 alone. 5. Beyond these direct educational costs, the Appellant relies on a filtered M-Pesa statement covering the period from November 2023 to November 2024. This statement documents a steady stream of transfers to the Respondent, typically in monthly tranches of Kshs. 35,000/=. Specifically, transfers were recorded on 2 November 2024, 15 October 2024, 5 August 2024, and 2 July 2024, among other dates. The total amount remitted within this twelve-month window is quantified at Kshs. 705,685/=. The Appellant argues that this level of financial commitment constitutes substantial compliance and negates any finding of wilful contempt. He contends that the trial court erroneously treated him as a deliberate defaulter when the record shows he has been prioritizing current tuition and maintenance over the historical arrears. 6. The Appellant further challenges the trial court’s factual findings regarding his financial capacity. The Respondent’s Supplementary Affidavit of October 2023 alleged that the Appellant had acquired a Nissan Sylphy, registration KDL 1xxxx, worth approximately Kshs. 1.5 million in May 2023. The Appellant submits that the mere possession of a used vehicle, manufactured in 2015, does not serve as a proxy for liquidity in late 2024. He posits that the court’s reliance on these unverified allegations, alongside rumours of rental construction in Thika, amounted to speculation rather than a proper inquiry into his means. He stresses that the trial court failed to address his legitimate request for Electronic Tax Register (ETR) receipts to verify the Respondent’s massive claims for transport and school-related expenses, which he believes are inflated and lack evidentiary foundation. The Response 7. The Respondent’s position is anchored in the equal responsibility doctrine enshrined in Article 53(1)(e) of The Constitution and Section 23 of the Children Act. She maintains that the Appellant’s compliance is sporadic, reactive, and insufficient to address the hole he left during his two-year hiatus in Malawi. The Respondent deposes that between 2021 and 2023, she was forced to incur substantial debt to keep the children in school and provide shelter, even failing to pay her own rent for a year as a consequence of the Appellant’s neglect. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5488/eng@2026-04-30 2

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8. In the Respondent’s view, the trial court was extremely lenient. She argues that the adjudicated arrears of Kshs. 2.43 million represent a debt that dates back years, and the Appellant has had ample time to come up with a realistic payment plan. She points out that the Appellant has never submitted audited accounts, asset declarations, or a comprehensive affidavit of means to support his claims of financial strain. Instead, she highlights his ability to hire private legal counsel and move the court with multiple applications while the minors’ arrears continue to grow. 9. The Respondent relies on the Court of Appeal’s decision in SMM v JIL eKLR, which affirms that parental obligations are not optional and are enforceable through execution proceedings like a Notice to Show Cause. She submits that once a maintenance order is in place, the burden shifts to the judgment-debtor to prove an absolute inability to pay, as opposed to a mere unwillingness to prioritize the debt. The Respondent contends that the Appellant is a manipulative debtor who cherry picks which court orders to obey and which to ignore, and that the coercive measures ordered by Hon. Elizabeth Muiru are necessary to safeguard the rule of law and the dignity of the court. The Procedural Legitimacy of the Notice to Show Cause (NTSC) 10. The first substantive issue this court must address is the validity of the Notice to Show Cause dated 3 October 2024. The Appellant argues that this NTSC was fundamentally defective because it sought to execute orders issued on 12 September 2024—orders which he claims were never served upon him. Furthermore, the NTSC introduced a claim for Kshs. 2.428 million, a figure that was not part of the specific orders of September 12. 11. In civil procedure, the NTSC is a crucial bridge between a judgment and the loss of liberty. Order 22 Rule 18 and Rule 31 of the Civil Procedure Rules mandate that before a warrant of arrest for committal to civil jail can issue, the judgment-debtor must be given an opportunity to show cause why they should not be detained. This is a protection of the right to personal liberty under Article 29 of the Constitution. In Samuel M.N. Mweru & Others v National Land Commission [2020] KEHC 9233, the Court articulated that the terms of the order being executed must be clear, unambiguous, and known to the respondent. 12. A perusal of the record suggests a material variance in the NTSC process. The NTSC required the Appellant to show cause why warrants should not issue for failure to comply with court orders issued on 12 September 2024. If those orders were merely procedural—such as a directive to file an affidavit —then using them as the basis for a Kshs. 2.4 million debt execution is a material misdirection. The Appellant’s argument that the NTSC conflated execution and contempt carries weight. Contempt proceedings are quasi-criminal and require a higher standard of proof and strict adherence to the terms of the order alleged to be breached. Execution for a money decree, conversely, is governed by the principles of debt recovery. By mixing these concepts, the trial court created a procedural confusion that prejudiced the Appellant’s ability to frame a coherent defence. The Evidentiary Crisis: Veriflcation and Electronic Tax Receipts 13. A significant portion of the adjudicated arrears consists of school-related expenses and transport fees. The Appellant repeatedly requested the trial court to order the production of ETR receipts for these items, a request that was dismissed as being not specific. This Court finds that dismissal problematic. Under section 107 of the Evidence Act, the burden of proof lies with the party asserting a fact. In the context of maintenance, items like transport fees are in the nature of special damages, as they are not fixed by the decree and represent out-of-pocket expenses incurred by the custodial parent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5488/eng@2026-04-30 3

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14. The principle established in Hahn v Singh [1985] eKLR is that special damages must not only be specifically claimed but also strictly proved with verifiable evidence. In an era where the Kenya Revenue Authority (KRA) has mandated the use of ETR and e-TIMS for nearly all commercial transactions, the expectation that a professional transport provider would issue a serialized tax receipt is not unreasonable. The Appellant’s concern that without ETR receipts, the door remains open for the Respondent to manufacture expenses, is a legitimate point regarding accountability. 15. In Commissioner of Domestic Taxes v Trical and Hard Limited [2022] KEHC 9927, the Court emphasized that documentation alone is not enough; it must be supported by the underlying requirements of the transaction. By allowing the Respondent to claim over Kshs. 500,000/= in additional arrears without serialized proof, the trial court shifted the burden onto the Appellant to disprove costs he did not incur. This is an evidentiary misdirection. A court of justice should not endorse a vicious cycle of arrears where sums are added to a debt based on bare assertions in an affidavit. Proportionality and the "One-Third" Rule in Maintenance 16. The Appellant’s primary substantive ground is that the order to pay Kshs. 100,000/= monthly toward arrears, on top of Kshs. 35,000/= maintenance and varying school fees, is manifestly oppressive and impractical. This argument brings into play the principle of proportionality, which is a cornerstone of judicial review and administrative fairness. 17. In M.M vs J.O.M [2004] KEHC 1722 (KLR), Justice Martha Koome (as she then was) reviewed a maintenance order where the payments exceeded one-third of the father’s salary. The Court emphasized that the "one-third rule"—though originating in labour law regarding deductions—serves as a useful guide in family law to ensure that a maintenance order does not become an indirect penalty that leads to job loss or economic ruin. 18. In the present case, the trial court’s leap from a Kshs. 20,000/= monthly instalment in 2023 to a Kshs. 100,000/= instalment in 2024 was done without any evidence that the Appellant’s income had increased by 400%. In fact, the Appellant claims continued financial strain. By basing the order on the purchase of a silver Nissan Sylphy 18 months prior, the court relied on unproven allegations of wealth rather than a contemporary Affidavit of Means. If the Appellant is a middle-class professional, a monthly deduction of Kshs. 135,000/= plus school fees likely consumes the vast majority of his disposable income, violating the spirit of proportionality. The Legal Standard of Substantial Compliance 19. The Appellant contends that his payment of over Kshs. 705,000/= in twelve months demonstrates substantial compliance with the court’s objectives. The doctrine of substantial compliance provides that where a party has made a bona fide effort to fulfill the essence of an order, they should not be subjected to the most punitive enforcement measures. In Crispus Karanja Njogu v The Attorney General & Another [2008] eKLR, the Court held that a party who takes reasonable steps towards compliance cannot be treated as a deliberate or wilful defaulter. 20. The Safaricom M-Pesa statements and the school fee receipts are critical in this regard. They show a parent who is currently meeting the daily upkeep of the children—food, tuition, activities—while the historical debt remains outstanding. The Respondent’s narrative of a parent who neglects his legal and moral responsibilities is contradicted by these verified 2024 payments. While the Respondent correctly notes that historical arrears must be settled, the law distinguished between the debt and the contempt. A person may be a debtor without being a contemnor. By failing to credit the Appellant for his ongoing https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5488/eng@2026-04-30 4

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substantial contributions, the trial court erroneously categorized a financial shortfall as a criminal-like defiance. Civil Jail as a Measure of Last Resort 21. The impugned order threatens the Appellant with committal to civil jail. This Court must ask: is civil jail the most effective or appropriate way to recover these arrears? In Solomon Muriithi Gitandu v Jared Maingi Mburu KEHC 4651, the Court observed that incarceration for debt is morally and practically questionable, especially when it results from an inability to pay rather than a dishonest or fraudulent refusal. Sending a parent to civil jail incapacitates their earning power, effectively ending the flow of funds for the children’s school fees and maintenance. 22. Section 101 of the Children Act and section 38 of the Civil Procedure Act provide for various modes of execution: attachment of salary, attachment of property, or committal to civil jail. Case law, including BRAEBURN LIMITED v TONY GACHOKA & another [2009] KEHC 1760 (KLR), suggests that civil jail should be a measure of last resort, to be used only against a stubborn debtor who has the money but refuses to pay. The Appellant’s payments in 2024 suggest he is not such a debtor. If he were truly fraudulent, he would not be sending Kshs. 35,000/= monthly to the Respondent and paying tuition directly to (Particulars withheld) School. The trial court’s leap to the most extreme measure of execution, without considering the attachment of earnings or a more realistic instalment plan, was an exercise of discretion that was manifestly unjust. The Best Interest Principle 23. Article 53(2) of the Constitution states that "a child’s best interests are of paramount importance". The Respondent argues this justifies the aggressive recovery of arrears. However, a holistic view of the child’s interest must include the financial stability of the parents who support them. If an enforcement order leads to the bankruptcy or imprisonment of the father, the children lose their primary source of support. 24. The trial court’s failure to order an inquiry into the Appellant’s income means the court was blind to the ripple effects of its order. If a parent is forced to pay more than their net salary, they will inevitably borrow more, leading to a debt trap that eventually harms the minors. A well-reasoned judgment must look at the income and expenditure of both parents to frame a plan that is consistent with the parent’s means. Contradictions and Emerging Themes in the Evidence 25. One notable contradiction in the Respondent’s evidence is her claim of rent arrears and financial ruin while simultaneously opting for the most expensive and exorbitant means of transport for the children. If a custodial parent is in a financial crisis, one would expect a focus on essential, low-cost services. The Appellant’s point about lack of consultation regarding these unilateral expenses is a valid one in coparenting law. In J O O v M B O [2015] KEHC 1843 (KLR), the Court rejected automatic divisions of property and focused on contribution and fairness. By analogy, the cost of maintenance must also be shared fairly, and one parent should not have the power to unilaterally incur massive costs and then demand immediate reimbursement under threat of jail. 26. Another emerging theme is the role of technology in evidence. The Safaricom M-Pesa statement provides a level of forensic certainty that was not possible in decades past. The trial court’s dismissal of this granular evidence of payment in favour of the Respondent’s unverified allegations of wealth is an anachronistic approach to adjudication. Modern courts must embrace digital proof of compliance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5488/eng@2026-04-30 5

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Disposition 27. For the reasons stated above, this Court finds that the appeal is merited. The Ruling of the trial court was a misdirection on both the law and the facts, and to uphold it would result in a miscarriage of justice for both the parent and the minors. 28. The following orders are hereby issued: i. The appeal is allowed, and the Ruling and orders of the Hon. Elizabeth Muiru dated 6 December 2024 are hereby set aside in their entirety. ii. The Notice to Show Cause dated 3 October 2024 is hereby declared defective, ambiguous, and unenforceable, and is struck out. iii. The matter is remitted to the Children’s Court at Milimani for a fresh assessment of arrears. iv. Pending the fresh assessment, the Appellant shall continue to pay the ongoing monthly maintenance of Kshs. 35,000/= and pay all tuition fees directly to the minors’ schools as they fall due. v. All previous warrants of arrest and travel bans against the Appellant are hereby stayed, provided that the Appellant continues to satisfy the ongoing maintenance and tuition obligations. vi. Each party shall bear their own costs of this appeal. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For Appellant: Mr Mshila For Respondent: Ms Kagia h/b Ndungu Court Assistant Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5488/eng@2026-04-30 6

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