High Court 12515 of 2026

birthday — together with costs. The custody of, and the other reliefs concerning, the minor JMK are not the subject of this appeal. A preliminary observation on service 4. Before turning to the merits, the court records a procedural concern. The record of appeal contains no affidavit of service establishing that the memorandum of appeal and the record were served upon the respondent or his advocates, and it discloses no response, grounds of opposition or submissions filed by the respondent in this appeal. An appellate court will not ordinarily grant substantive relief adverse to a party who has neither been shown to have been served with the appeal nor to have taken part in it. As will appear, this concern does not in the event determine the outcome, because the appeal fails on its merits and its dismissal preserves the position of the successful respondent below; but had the court been minded to grant the appellant the relief she seeks against the respondent, the absence of proof of service would have been a serious impediment to doing so. The irregularity is noted so that it is not overlooked, and so that proof of service is placed on the record in any further step in this matter. B. Background 5. The material facts, drawn from the pleadings and annexures in the record, are largely uncontested. The appellant and the respondent were formerly married; their marriage was dissolved in Eldoret CMC Divorce Cause No. E034 of 2024. Three children were born of the union: ACK, born on 10th October 2004; RKK, born on 17th May 2006; and JMK, who remains a minor. 6. AC and RK received their primary education at [Particulars Withheld] Primary School and their secondary education at [Particulars Withheld] High School. That the respondent met their school fees during those years, subject to arrears that later arose, is not seriously in dispute. AC’s [Particulars Withheld] High School clearance certificate is dated 8th December 2022; RK’s is dated 21st November 2023. 7. Both young men subsequently secured places in institutions of higher learning. AC enrolled at the Kenya Medical Training College (Kisii Campus) on 10th September 2024 for a Diploma in Community Health Nursing, a three-year programme. RK enrolled at Kisii University on 22nd August 2024 for a Bachelor of Science in Mathematics, a four-year programme. 8. By her Notice of Motion dated 30th January 2025, brought under sections 8, 31, 35, 110 and 111 of the Children Act, 2022, Article 53(2) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act, the appellant sought: an order extending the respondent’s parental responsibility over AC and RK beyond their eighteenth birthday (prayer 2); an order compelling the respondent to pay Kshs. 39,000 and Kshs. 38,900 towards the first-year, second-semester fees of AC and RK respectively (prayer 3); an order for monthly maintenance of Kshs. 10,000 for each young man towards schoolrelated expenses, accommodation and basic needs (prayer 4); and costs. The application was supported by the appellant’s affidavit and by affidavits sworn by AC and RK themselves. 9. The application was opposed. The respondent’s reply, and the account accepted by the trial court, was to the following effect: that he is the biological father of all three children; that he was a present and supportive parent who funded their primary schooling at [Particulars Withheld] and their secondary schooling at [Particulars Withheld], served as the school’s Parents’ Teachers’ Association treasurer, and visited regularly; that he was, until August 2021, the pastor in charge of a church in Kisumu but was relieved of that position on account of marital difficulties and ill-health, thereupon losing his source of income and being in and out of hospital from 2021 to date; that in 2021 the appellant left the matrimonial home and the sons thereafter severed contact with him, blocking his telephone numbers and rebuffing his attempts to reach them; that he learned of the sons’ enrolment at the Kenya Medical https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12515/eng@2026-07-31 2

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Training College and Kisii University only when he was served with the application; that, the sons being of the age of majority, leave ought to have been obtained before applying; that the appellant’s demands are beyond his means because he is unwell, unable to work, without a payslip, and survives on the goodwill of his church and the hospitality of his Bishop; and that he remains willing to engage the sons on more affordable courses and is open to mediation. 10. The record shows that the respondent entered appearance and filed his reply at the trial, through his advocates, and appeared at the hearing. On 25th February 2025 the trial court referred the matter to court-annexed mediation; that mediation was, on the record, still pending, a mention having been fixed for 9th September 2025 to confirm its outcome. On 17th June 2025 the trial court directed that a children’s report be filed within seven days; no such report appears anywhere in the record. The ruling was delivered on 9th July 2025. C. The impugned ruling 11. In dismissing the application the learned magistrate reasoned, in substance, as follows. Having considered the application, the reply, the submissions and the relationship between the parties and their two adult sons, he found that the family relationship was “in shambles,” the sons and the respondent not being on speaking terms, and considered it imperative that they be “mediated upon as a way of promoting peaceful co-existence in the family.” He further considered the respondent’s financial income “as per his reply as well as his health, together with all the annexures,” and was “not convinced that the respondent is in a position to pay fees for his two children who are now over 18 years old.” He accordingly found no merit in the application, dismissed it with no order as to costs, and, being of the view that the family had broken down, referred the case to mediation. D. Issues for Determination 12. The seven grounds in the memorandum of appeal resolve, on analysis, into the following issues for determination: (i) the duty of this court sitting as a first appellate court; (ii) whether the trial court erred in declining to extend the respondent’s parental responsibility over ACK and RKK beyond their eighteenth birthday; (iii) whether the trial court erred in referring the parties to mediation and in the manner in which it dealt with the children’s report; and (iv) costs. E. Analysis and Determination (i) The duty of the first appellate court 13. This being a first appeal, the court is under a duty to reconsider the evidence, to evaluate it afresh, and to draw its own conclusions, bearing always in mind that it did not have the advantage of seeing and hearing the witnesses. The classic statement is Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, that an appeal of this nature is by way of retrial and that the court “must reconsider the evidence, evaluate it itself and draw its own conclusions,” while making due allowance for not having seen the witnesses, and that it is not bound to follow the trial court’s findings of fact where that court failed to take account of particular circumstances or misapprehended the evidence. To the like effect is Kiruga v Kiruga & Another (1988) KLR 348, that an appellate court will not substitute https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12515/eng@2026-07-31 3

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its own finding for that of the trial court unless there was no evidence to support the finding, or the trial court can be said to have been plainly wrong. 14. Two features of this case bear upon the application of those principles. First, the application below was determined on affidavit evidence and written submissions; no oral testimony was taken. This court is therefore in as good a position as the trial court to evaluate the material, and the caution owed to a trial court’s assessment of the demeanour of witnesses has little purchase here. Secondly, and by contrast, the decision to refer the parties to mediation was a discretionary one, with which this court will not interfere unless the trial court misdirected itself in law, took into account irrelevant matters, failed to take into account relevant matters, or reached a decision that was plainly wrong. (ii) Extension of parental responsibility beyond the eighteenth birthday 15. The substance of the appeal is the appellant’s complaint that the trial court wrongly declined to extend the respondent’s parental responsibility over the two young men beyond their eighteenth birthday. Before the competing considerations are weighed, the governing law must be stated. 16. Parental responsibility ordinarily subsists throughout the childhood of a child and comes to an end when the child attains the age of eighteen years. The power to extend it beyond that age is conferred by section 35 of the Children Act, 2022, which provides that parental responsibility “may be extended by an order of the Court after the date on which the child attains the age of eighteen years if the Court is satisfied, either of its own motion or on application by any person, that special circumstances exist with regard to the welfare of the child that would necessitate the making of such extension.” Section 35(2) gives, as its illustration of such special circumstances, the case of a child “in need of extended parental responsibility by reason of special needs arising from severe disability or developmental disorder.” The word “include” makes that illustration non-exhaustive, and it is well settled that the continuing education of a young person may amount to a special circumstance. That is reinforced by section 111 of the Act, which permits a person who has attained the age of eighteen to apply, with the leave of the court, for a maintenance order where he or she is or will be involved in education or training that will extend beyond the eighteenth birthday. 17. A word on nomenclature is necessary, because the appellant’s submissions, and several of the authorities she relies upon, refer to section 28(1) of the former Children Act (No. 8 of 2001) and to section 4(3) thereof. Those provisions are now, respectively, section 35 and section 8 of the Children Act, 2022. The jurisprudence developed under the former Act remains instructive, but it is the current provisions that govern. 18. Overarching all of this is the principle that the best interests of the child are of paramount importance in every matter concerning the child: Article 53(2) of the Constitution and section 8 of the Children Act, 2022. As Kimaru J observed in MA v ROO [2013] eKLR, the best interests of a child include the child’s right to be provided with shelter, food, clothing, education and medical care, and with parental guidance by both parents where possible. 19. But the power conferred by section 35 is not at large. As its language makes plain, what is extended is an existing parental responsibility: the section presupposes a responsibility that is subsisting and operative at the point of majority, and empowers the court to carry it beyond that point where special circumstances exist. The authorities are consistent upon this. In Allan Njau Waiyaki v Eddie Waiyaki Hinga [2019] KEHC 11676 (KLR) the court described the paradigm case: a child “is in school or training at the expense of his parents,” attains the age of eighteen while “the programme he had enrolled for has not ended,” and the parents then stop, or threaten to stop, paying, whereupon the young person may seek an order of extension “to force the parents to see him through the completion of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12515/eng@2026-07-31 4

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that programme,” at the conclusion of which parental responsibility ceases. In that very case the court declined to extend responsibility where the young man had been provided for up to the completion of his undergraduate studies and thereafter sought support for a further programme in which the parent had had no continuing involvement. And in MNB v JNM & Another (Civil Appeal No. 81 of 2018) [2019] eKLR the principle was put shortly: “For the parental responsibility to be extended it must have existed in the first place.” 20. The point was applied directly, and on facts closely comparable to the present, in JKT v AK & Another [2023] KEHC 18120 (KLR). There this court set aside an extension of parental responsibility that had been granted in respect of a young man who had cleared his secondary education some years earlier and was no longer within any programme the parent had been funding when he attained majority. The court held that parental responsibility had lapsed upon his attainment of eighteen years, so that, at the point of the application, no such responsibility existed for consideration for an extension. Extension is thus not available to resurrect a responsibility that has already come to an end; it operates only to prolong one that is still running. 21. That is to be contrasted with the cases in which extension has properly been granted, on which the appellant relies. In JMA v RGO (Nairobi HC Civil Appeal No. 1 of 2019) — which cited with approval CMG v MMM [2014] eKLR — JNG v JMM [2023] KEHC 20588 (KLR) and SMW v JNN (Nairobi HC Civil Appeal No. 121 of 2015), the common thread is continuity: in each, the young person moved from secondary schooling into tertiary education without a break, the parent’s responsibility being live and continuous at the moment of majority, so that there was a subsisting responsibility for the court to carry forward. Where the parent’s means were modest — as with the ailing father in JNG v JMM and SMW v JNN — the courts accommodated that not by refusing extension outright but by tailoring the order, through apportionment or by directing that the young person also pursue other avenues, such as the Higher Education Loans Board. 22. Judged against these principles, and on a fresh evaluation of the record, the appellant’s case for extension is not made out in respect of either son. 23. Take ACK first. He attained the age of eighteen on 10th October 2022 and, on the evidence of his own clearance certificate, completed his secondary education at [Particulars Withheld] in December 2022. He did not enrol at the Kenya Medical Training College until 10th September 2024 — a gap of some twenty-one months after he completed the secondary programme, and almost two years after he attained majority. The programme his father had been funding, namely his secondary schooling, had therefore ended, and AC had long passed the age of eighteen, before he embarked upon the wholly separate diploma programme at the College. On the respondent’s uncontroverted account, that later enrolment was undertaken without his knowledge, and he learned of it only upon being served with the application. This is not the Waiyaki paradigm of a parent required to see a child through the completion of a subsisting programme; it is, in all material respects, the situation in JKT v AK and MNB v JNM — a fresh, post-majority undertaking, embarked upon by an adult independently of the parent, in respect of which there was no continuing parental responsibility left to extend. 24. The position of RKK is closer, but does not in the end differ in principle. He attained the age of eighteen on 17th May 2024, having cleared [Particulars Withheld] in November 2023, and enrolled at Kisii University in August 2024. Yet at the point he attained majority in May 2024 he was, on the record, between programmes: his secondary schooling had ended in November 2023 and his university studies did not begin until August 2024. There was, at the moment of majority, no subsisting educational programme that the respondent was funding; and, as with his brother, the respondent’s uncontroverted evidence is that the sons had severed contact with him from 2021, that he played no part in the decision to enrol, and that he learned of it only upon service of the application. The near- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12515/eng@2026-07-31 5

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contemporaneity of RK’s enrolment with his eighteenth birthday renders his case more sympathetic than his brother’s, but it does not supply the essential ingredient the authorities require: a parental responsibility that was live and continuous at majority and is therefore capable of being carried forward. 25. There is a further, related, difficulty. The extension of parental responsibility is not a free-standing means of compelling a parent to fund a course of study an adult child has independently chosen; it is a mechanism for the continued discharge of an existing obligation towards a young person whose welfare would otherwise be prejudiced. On this record the relationship between these young men and their father had, on the father’s uncontroverted account, broken down well before either attained majority: they blocked his telephone numbers, rebuffed his overtures, and, when he traced AC in January 2025, met him with a denial that they even knew him. The appellant filed no further affidavit answering that account. In those circumstances it is difficult to characterise the respondent’s non-payment as an “abdication” of a responsibility that the young men themselves had, for several years, declined to permit him to exercise. 26. For completeness, the respondent’s contention that the sons ought first to have obtained leave does not assist him: the application was made by the appellant as their mother, and section 35(3) of the Act permits a parent to apply for extension either before or after the child attains the age of eighteen. The application was therefore competently before the trial court. Its fate turns not upon competence but upon whether special circumstances were established — and, for the reasons given, they were not. The two young men are, in the language of the authorities, adults whom the law expects to fend for themselves, save where a subsisting parental responsibility falls to be completed, which is not this case. 27. The court is conscious that the learned magistrate did not analyse the application in these terms. He did not formulate the issues, did not expressly engage section 35 or the best-interests principle, and rested his dismissal principally upon his want of conviction that the respondent could afford to pay. Financial incapacity, strictly, bears upon the quantum and mode of any order rather than upon the anterior question whether responsibility ought to be extended at all; and to that extent the route by which the magistrate reached his conclusion was not the most apposite. But an appellate court is concerned with the correctness of the decision, not the elegance of the reasoning by which it was reached. On the material before him, and on the law, the only order properly open to the trial court was to decline the extension. Re-evaluating the record for itself, this court arrives at the same destination by the surer route of section 35 and the authorities, and it will not disturb a correct result: Kiruga v Kiruga (above). (iii) Mediation and the children’s report 28. By her sixth ground the appellant complains that the trial court erred in referring the matter to mediation, mediation having, it is said, previously failed without any substantive agreement. That complaint is not borne out by the record. The court-annexed mediation to which the parties were referred on 25th February 2025 had not conclusively failed; on the contrary, the parties had sought further time before the Mediation Deputy Registrar, and a mention was fixed for 9th September 2025 to confirm its outcome. Given the state of the family relationship — which the respondent’s own prayers sought to address, by asking that the sons appear for an interview — the referral to mediation was a proper exercise of the trial court’s discretion, and no basis has been shown for interfering with it. 29. By her fifth ground the appellant complains that the trial court disregarded a children’s officer’s report requested by the court. Two answers may be given. First, no such report appears anywhere in the record of appeal; this court cannot find that a report was wrongly disregarded when no report is before it, and the appellant, who prepared the record, has placed none before this court. Secondly, the report that was contemplated — sought, in truth, by the respondent — concerned the welfare of the minor, JMK, and not the two adult sons whose fees are the subject of this appeal. The ground is not made out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12515/eng@2026-07-31 6

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(iv) Costs 30. This is a family matter concerning the welfare and education of the parties’ children, in which the appellant plainly acted out of genuine concern for her sons. The respondent, moreover, did not participate in the appeal. In those circumstances the just order is that each party bears its own costs, as the trial court also ordered. A closing observation 31. Lest this judgment be misread, the dismissal of the appeal does not shut every door. It remains open to each of the young men, as a person who has attained the age of eighteen and is engaged in continuing education, to apply in his own name, with the leave of the court, for a maintenance order under section 111 of the Children Act, 2022, upon establishing the statutory circumstances; and the mediation to which the family stands referred may yet produce an arrangement, the respondent having professed himself willing to engage his sons on affordable courses. Nothing in this judgment forecloses those avenues. F. Disposition 32. 33. For the reasons given, the appeal is without merit. The court makes the following orders: (a) The appeal is dismissed. (b) The ruling and orders of the Hon. Benson Ireri, Senior Principal Magistrate, delivered on 9th July 2025 in Kisumu Children’s Case No. E018 of 2025, including the referral of the matter to mediation, are upheld. (c) Each party shall bear its own costs of the appeal. Orders accordingly. DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF .JULY 2026. HON. ALEX K. ITHUKU JUDGE In the presence of: ....................................... for the Appellant ....................................... for the Respondent Annastacia - Court Assistant HON. ALEX K. ITHUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12515/eng@2026-07-31 7

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