MKM v JNK (Family Appeal E012 of 2025) [2026] KEHC 12915 (KLR) (5 August 2026) (Judgment) Neutral citation: [2026] KEHC 12915 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MERU FAMILY APPEAL E012 OF 2025 HM NYAGA, J AUGUST 5, 2026 BETWEEN MKM .......................................................................................................... APPELLANT AND JNK ......................................................................................................... RESPONDENT JUDGMENT 1. Vide the Memorandum of Appeal dated 12th May 2025, the appellant sought to set aside the ruling dated 28th April 2025, delivered by the Honorable Rose Ongira in Nkubu Children Case No. E005 OF 2021. 2. The memorandum of appeal is anchored on the following grounds; a. The Learned Trial Magistrate erred in Law and in fact in that she did not take the full account of the welfare of the children in the spirit of Article 53 (1) (e) which provides for parental responsibility as a shared role regardless of the nature of the relationship of the contesting parties. b. The Learned Trial Magistrate erred in Law and in fact in that he did not consider or sufficiently consider the material before her and came to wrong conclusion. c. The Learned Trial Magistrate failed to consider that the custody, education, maintenance and medication of the three children are solely provided for by the appellant. d. The Learned Trial Magistrate erred in Law and in fact in failing to grant the children any award and concentrated on procedural irregularities. e. The Ruling of the Learned Trial Magistrate is against the weight of evidence and all the material placed before her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12915/eng@2026-08-05 1
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f. 3. 4. The Learned Magistrate's Ruling is bad in Law as there was no good case for review. The background to this appeal is that the trial court in the said case delivered its judgment on 13th January 2022 directing as follows; a. The plaintiff (now appellant) shall have actual and legal custody of the minors. b. The plaintiff shall provide shelter, food and clothing for the minors. c. The defendant (now respondent) shall pay school fees for all the minors and also provide all other necessary school requirements. d. Both parties shall include the minors in their respective medical covers. e. The defendant shall pay a sum of Kshs. 15,000/= per month being his contribution to the maintenance of the minors f. The defendant shall have visitation rights over the minors g. Each party shall bear his/her own costs of the suit. The orders in the said judgment were later set aside by the trial court on 30th March 2023 after the parties filed their affidavits of means. Consequently, the trial court varied and/or set aside the judgment and directed as follows; a. That both parties to cater for the school requirements of the minors that is, school fees and all necessary school requirements equally. b. That in effect, the judgment of the court delivered on the 13th January 2022 is hereby set aside. c. Each party to bear on costs. 5. The appellant later moved the trial court vide an application dated 5th January 2024 seeking an order directing that a sum of Kshs. 15,000/- to be deducted from the respondent’s salary every month to cater for the maintenance of the minors. 6. In effect, the appellant’s application was in pursuit and/or execution of the judgment which had already been set aside. Nevertheless, the trial court allowed the said application vide the order dated 3rd April 2024. 7. Following the aforementioned order directing the deduction of Kshs. 15,000/= monthly from the respondent’s income, the respondent moved the trial court with an application dated 27th November 2024 seeking to set aside and/or review the said order. 8. The trial court vide its ruling dated 28th April 2025 granted the orders sought to the respondent. This ruling is the subject of the instant appeal. 9. The appeal was canvassed by way of written submissions which I have duly considered. I will refe 10. In essence, the appellant is seeking to have the ruling dated 28th April 2025 set aside and the one dated 3rd April 2024 reinstated. 11. In view of the foregoing, this court finds the following issues for determination; a. Whether the learned magistrate erred in her ruling or not. b. Whether the appeal is merited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12915/eng@2026-08-05 2
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12. I have perused the trial court’s record. It is evident that the order dated 3rd April 2025 was prompted by the appellant’s application dated 27th November 2024. 13. In the said application, the appellant asked the trial court to issue orders setting aside and /or reviewing the order issued on 3rd April 2024 and instead uphold the order made by Hon E. Ayuka (PM) on 9th November 2023. 14. The appellant contended that the respondent had failed and/or refused to comply with the terms of the judgment dated 13th January 2022 despite being served with the said judgment and a notice to show cause to that effect. 15. As was correctly held by the trial court, on 30th March 2023, the judgment was set aside on the terms stated earlier. The trial court had noted and observed that the proceedings had degenerated to personal vendetta and not in the interest of the minors anymore. It was also the court’s observation that the parties had turned the proceedings to an avenue through which they wanted to settle scores. 16. Further, the court noted that the parties were in gainful employment and that they had the ability to cater for their children as per Article 53 of the Constitution and Section 110 (a) of the Children Act, which both provide for the equal parental responsibility in raising children. 17. It was these observations that led to the court setting aside the judgment dated 13th January 2022. 18. The question that begs an answer is whether a judgment that has been set aside can be enforced. Obviously, the answer is an emphatic no. 19. In the circumstances, I find that the trial magistrate was right to disallow the application dated 27th November 2024. 20. While the appellant was aggrieved by the order that set aside the judgment, she has, erroneously, appealed against the incorrect ruling. She ought to have appealed against the orders that set aside the judgment. 21. The learned magistrate correctly found that she had no jurisdiction to reinstate the judgement that had been set aside. 22. Having considered the appeal and the arguments by the parties, I find that the appeal lacks merit and it is dismissed. 23. Being a children matter and considering the circumstances of the case, I direct that each party bears his/her own costs. 24. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF AUGUST 2026. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12915/eng@2026-08-05 3
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