Han v Hms

3. 4. 4. The Honourable Kadhi erred in law and fact in dismissing the review application without interrogating the issue of the special needs child who suffers from autism; 5. The learned Kadhi erred in law and fact in not considering the issue of the children not attending school even after the school fees had been paid in full; 6. The learned Kadhi erred in law and fact in not considering the issues of the change of shareholding in [Particulars Withheld] Hospital which showed that the Appellant only owns 20%; 7. The learned Kadhi erred in law and fact in dismissing the Appeal without rendering a decision on the substance thereof; and 8. Such other grounds to be adduced at the hearing hereof. The Appellant prays for orders that: a. The appeal herein be allowed; b. The decision made by the Kadhis Court on Nairobi Children’s Case No. E105 of 2021 delivered on 23rd December, 2022 be wholly set aside and substituted with an order delivered on 20th September, 2021 in the same case and an Order be made allowing the Appellant’s Application dated 1st September, 2022; c. This matter to be transferred from the Kadhis Court to the Children’s Court as Kadhis Court lacks jurisdiction; and d. The Appellant be awarded the costs of the Appeal. The Appellant has filed written submissions dated 24th July, 2025 and the Respondent has filed written submissions dated 17th November, 2025. Background 5. The genesis of this appeal is the judgment delivered on 5th August, 2022, in which the trial court considered a dispute arising from a dissolved marriage in which the Plaintiff, HAN, sought custody, access and related reliefs concerning three minor children, alongside issuance of a divorce certificate. The Plaintiff attributed the breakdown of the marriage to the Defendant’s conduct, while the Defendant, HMS, presented a detailed counter-narrative alleging mistreatment, neglect and threats by the Plaintiff, and sought extensive financial provision, custody and protective orders. 6. The court, however, declined to delve into the contested causes of the marital breakdown, noting that the divorce itself was no longer in dispute and instead confined its determination to the substantive issues of custody, access and maintenance of the minors. 7. From the evidence on record, the Kadhi found that certain claims advanced by the Defendant, particularly regarding the alleged closure of her business at the instance of the Plaintiff, were not proved as they lacked supporting documentary evidence such as licenses, receipts or tenancy records. The court reaffirmed the principle that the burden of proof lies on the party asserting a claim. 8. It further rejected allegations that the Plaintiff intended to unlawfully remove the children from the jurisdiction, observing that no credible evidence had been tendered to substantiate such claims. In determining the welfare of the children, the court emphasized that the best interests of the child are paramount, drawing from Islamic law, constitutional provisions and international instruments. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 2

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9. While recognizing that mothers are ordinarily best placed to provide primary care, the court underscored that both parents bear equal responsibility and should facilitate each other’s access to the children. It cautioned against the use of children as instruments of conflict and stressed that parental rights must be exercised in a manner that safeguards the children’s welfare above all competing interests. 10. On maintenance, the court evaluated the competing positions of the parties, balancing the Defendant’s claim of substantial needs against the Plaintiff’s assertion of limited means and multiple dependants. Guided by the principle that no person should be burdened beyond their capacity, the court assessed a reasonable level of provision based on past expenditure patterns and prevailing cost of living. 11. It consequently set maintenance at a moderated level, inclusive of rent and subsistence, while directing that education, healthcare and clothing be catered for separately. Ultimately, the court issued final orders granting physical custody to the Defendant, joint legal custody to both parties and unrestricted access to the Plaintiff, alongside monthly maintenance fixed at Kshs. 85,000/=. 12. Additional orders included provision for education and healthcare by the Plaintiff, surrender of the children’s passports, payment of dowry, issuance of a divorce certificate and injunctive relief restraining harassment. Each party was ordered to bear their own costs. 13. The Appellant seeks that the decision delivered on 23rd December, 2022 be wholly set aside. In the ruling delivered on 23rd December, 2022, the trial court addressed the dispute relating to custody, maintenance and parental responsibility of the minor children following the breakdown of the parties’ marriage. The Kadhi emphasized that both parents bear responsibility for the welfare of the children, guided by Islamic principles and the overarching duty to act within one’s financial capacity. 14. In determining maintenance, the court considered the father’s obligation to provide for the children but underscored that such responsibility must be reasonable and proportionate to his means and not oppressive. The Kadhi further examined the living arrangements and needs of the children, rejecting the necessity for excessive expenditure such as maintaining a high-cost residence where a more modest arrangement would suffice. 15. The court found that the children’s needs could be adequately met through moderate and sustainable provision, rather than the higher sums previously claimed. In this regard, the court reduced the maintenance expectations to amounts it considered fair, including provision for basic upkeep and rent, while maintaining that the father’s duty is limited to his children and does not extend beyond his capacity. 16. In reaching its determination, the court relied on Qur’anic principles, particularly the doctrine that no person should be burdened beyond their ability and that both parents must act fairly in discharging their parental duties. The Kadhi also addressed the balance between the mother’s caregiving role and the father’s financial responsibility, affirming that shared parental responsibility must be exercised in a manner that safeguards the children’s welfare without unjust enrichment or hardship to either party. 17. Ultimately, the court issued orders regulating monthly maintenance and housing costs at reduced and specific amounts, reflecting a practical and needs-based approach. 18. The ruling, in my view, sought to strike a balance between the best interests of the children and the financial realities of the father, anchoring its decision on fairness, proportionality and applicable Islamic law principles. 19. The Appellant prays that the order delivered in the ruling delivered on 20th September, 2021 be upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 3

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20. The Kadhi’s Court, in its ruling delivered on 20th September, 2021, considered an oral application by the Plaintiff seeking that the Defendant continue providing for both herself and the children in the same manner as prior to the divorce. The application was premised on the Defendant’s prior financial support, including substantial monthly upkeep. 21. However, the court observed that the parties had been divorced and that the Defendant’s legal obligation was limited strictly to the maintenance of his children, not the Plaintiff. It was further noted that the Plaintiff’s claim for a significantly higher monthly sum was excessive and not proportionate to the Defendant’s obligations. 22. In determining the appropriate level of support, the court emphasized that maintenance must be reasonable and within the financial capacity of the father. It held that the Defendant was not required to sustain the Plaintiff’s previous standard of living, particularly where such expectations would impose an undue financial burden. The court also considered that the housing arrangements sought by the Plaintiff were disproportionately expensive and inconsistent with prudent allocation of resources, given that the Defendant’s duty was confined to meeting the children’s needs within reasonable limits. 23. Guided by principles of Islamic law, the court reiterated that while a mother bears the responsibility of nurturing young children, including breastfeeding, the father is obligated to provide for their upkeep, including food and clothing, in a fair and reasonable manner. These obligations, however, do not extend to supporting the mother beyond what is necessary for the children’s welfare. The court underscored that such maintenance must be proportionate and not oppressive to the father. 24. Ultimately, the court found that the children’s needs could be adequately met without the provision of excessive housing or inflated upkeep. It therefore determined that a modest and reasonable arrangement was sufficient, including provision of Kshs. 30,000/= for rent and Kshs. 1,000/= daily upkeep for the children, thereby balancing the welfare of the children with the financial realities of the Defendant. Analysis and Determination 25. I have carefully considered the memorandum of appeal and the rival submissions; and address them as follows. 26. This being a first appeal, the court is enjoined to re-evaluate and re-analyze the entire evidence on record and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 27. The guiding principles are well settled, including the duty to subject the impugned decision to fresh scrutiny and determine whether the trial court misdirected itself in law or fact as was established in Mursal & Another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) where the court stated as follows: “First appellate court is mandated to re – evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.” 28. From the record of appeal, the dispute arose from a matrimonial breakdown between the parties, culminating in divorce proceedings in the Kadhi’s Court, with the principal contest centering on custody, access and maintenance of the minor children. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 4

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29. The Appellant maintained that he had consistently provided for the children and sought structured access, joint parental responsibility and a reassessment of maintenance obligations in light of his reduced financial capacity and multiple dependants. 30. Conversely, the Respondent asserted that the Appellant was a man of substantial means, capable of meeting higher maintenance obligations and sought enhanced financial provision together with primary custody and control of the children. 31. From the evidence on record, the Kadhi’s Court isolated the core issues for determination as: whether custody should vest in the mother, whether both parties should exercise equal parental responsibility and the appropriate quantum of maintenance. 32. In resolving these issues, the court was guided by statutory provisions, including the Children Act and constitutional principles, as well as Islamic law, all of which underscore that the best interests of the child are paramount. The court further recognized that, while physical custody may ordinarily be granted to the mother, both parents retain equal rights and duties in respect of the children, including the obligation to provide for their basic needs. 33. On the question of maintenance, the court undertook a balancing exercise between the competing positions advanced by the parties. The Respondent portrayed the Appellant as financially wellendowed, citing his ownership of a hospital and alleged additional assets, while the Appellant contended that his income had diminished and that he bore responsibility for numerous dependants. 34. The court found insufficient proof of extensive additional assets beyond the hospital and emphasized that maintenance must be reasonable and commensurate with the father’s actual financial ability, in line with both legal and Islamic principles prohibiting imposition of an excessive burden. 35. The record further reflects that the Appellant raised concerns regarding access to the children and alleged non-compliance with prior court orders by the Respondent, including issues relating to schooling and communication. 36. Additionally, matters relating to the children’s welfare, including health considerations and dual citizenship, were canvassed, with the Appellant urging the court to ensure continued involvement in the children’s lives and to safeguard their best interests through shared parental responsibility. 37. In the end, the lower court resolved the dispute by granting physical custody to the Respondent, affirming joint parental responsibility and setting a defined level of monthly maintenance alongside ancillary obligations for education, healthcare and general welfare. The determination shows an attempt to balance the welfare and best interests of the children with the financial realities and obligations of the Appellant, thereby forming the basis of the present appeal. 38. The appeal principally turns on three interrelated issues: 39. i. Whether the learned Kadhi properly exercised discretion in determining maintenance; ii. Whether the best interests of the child were upheld; iii. Whether the review application was properly dismissed. In NKG v SGB [2024] KEHC 5658 (KLR) the court pronounced itself as follows: “… https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 5

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22. Since the two issues are intertwined, I will deal with them together. I must be guided at all times by the mantra that the best interest of a child principle is paramount when dealing with children matters. 23. Article 53 (2) of the Constitution provides: “A child’s best interests are of paramount importance in every matter concerning the child.” 24. Section 8(1) of the Children’s Act 2022 provides; a. 25. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies — a. the best interests of the child shall be the primary consideration; b. the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. The First Schedule of the Children’s Act 2022 lists down the considerations to be taken into account when ascertaining what is in the best interest of a child: 1. The age, maturity, stage of development, gender, background and any other relevant characteristic of the child. 2. Distinct special needs (if any) arising from chronic ailment or disability. 3. The relationship of the child with the child's parent(s) and/or guardian(s) and any other persons who may significantly affect the child's welfare. 4. The preference of the child, if old enough to express a meaningful preference. 5. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity. 6. The stability of any proposed living arrangements for the child; 7. The motivation of the parties involved and their capacities to give the child love, affection and guidance. 8. The child's adjustment to the child's present home, school and community. 9. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access. 10. The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 6

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11. Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent's/guardian’s willingness to use those methods. 12. The effect on the child if one parent/guardian has sole authority over the child's upbringing. 13. The existence of domestic abuse between the parents/ guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child. 14. The existence of any history of child abuse by a parent and/or guardian(s); or anyone else residing in the same dwelling as the child. 15. Where the child is under one year of age, whether the child is being breast-fed. 16. The existence of a parent's or guardian(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act. 17. Where there is a person residing with a parent or guardian, whether that person - 18. a. been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code, or any other legislation. b. has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony. Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child…” 40. On maintenance, the record demonstrates that the Kadhi considered both the Appellant’s asserted diminished financial capacity and the Respondent’s claim of substantial means. The court correctly applied the legal and Islamic principle that a parent’s obligation is limited to what is reasonable and commensurate with his means and that no person should be burdened beyond capacity. There is no evidence that the Kadhi acted on wrong principles or ignored material factors. Rather, the court undertook a balancing exercise and arrived at a moderated figure, inclusive of rent and upkeep, while separating educational and medical responsibilities. In appellate review, such a discretionary determination can only be interfered with where it is shown to be plainly wrong, excessive or based on misdirection, which has not been demonstrated. 41. On the best interests of the child, which remains the paramount consideration under Article 53 (2) of the Constitution and Section 8 (1) the Children Act, the trial court properly directed itself. It recognized the mother as the primary caregiver while affirming joint parental responsibility, thereby ensuring continuity of care and meaningful involvement of both parents. 42. The court further addressed access, education, healthcare and general welfare in a manner consistent with statutory and jurisprudential standards. Although the Appellant raised concerns regarding a child https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 7

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with special needs and schooling, the record does not disclose that these factors were ignored; rather, they were subsumed within the broader welfare assessment. There is therefore no basis to conclude that the Kadhi failed to consider relevant factors or applied the wrong test. 43. With regard to the dismissal of the review application, the threshold for review requires demonstration of an error apparent on the face of the record, discovery of new and important evidence or other sufficient reason. 44. The Appellant’s grounds largely reiterate issues that were within the knowledge of the court at the time of the initial determination, including financial capacity and parental obligations. The Kadhi cannot be faulted for declining to reopen matters that were already canvassed or for declining to vary orders absent cogent new evidence. The complaint that the court failed to consider Qur’anic principles is equally unpersuasive, as the record shows that the decision was expressly grounded on the doctrine of proportionality and fairness drawn from Islamic law. 45. Upon a fresh and exhaustive evaluation of the record, this Court finds that the learned Kadhi properly directed himself on the law, considered all relevant factors and exercised his discretion judiciously. The orders on custody, parental responsibility and maintenance reflect a reasoned balance between the best interests of the children and the financial realities of the Appellant, consistent with both statutory and Islamic legal principles. 46. Finally in upholding the decision of the subordinate court and in light of the foregoing, I make reference to MAK v. RMA & 4 others (Petition 2 [E003] of 2022 [2023] KESC 21 (KLR) (Civ) (2 March 2023) (Judgment) where the Supreme Court stated at paragraph 87 that, “… Courts, therefore, while making a decision that will impact the child are mandated to consider all circumstances affecting the child…” and at paragraph 88, “… We need to emphasize that it is never in the best interest of a child when the parents are engaged in a protracted court battle. Court battles relating to children are more often than not very selfish in nature and it is easy to overlook the psychological and mental harm done to the child in the process… [emphasis mine]” 47. Accordingly, I hold that the appeal lacks merit and the same is hereby dismissed with no order as to costs DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 30TH DAY OF APRIL 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5633/eng@2026-04-30 8

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