BN (Suing as Mother and Next Friend of the Minor BQW) v MM (Children's Case E145 of 2025) [2026] KEMC 231 (KLR)

Analysis 5. On whether the judgment ought to be set aside, the law governing setting aside of ex parte or default judgments is well settled. The Court retains discretion to set aside such judgment where suficient cause is shown. In Patel v East African Cargo Handling Services Ltd [1974] EA 75, Dufius P held that: “ The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules.” 6. Similarly, in Shah v Mbogo & Another [1967] EA 116, the Court stated that the discretion to set aside is intended: “ to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error…” 7. The Defendant attributes his failure to participate in the proceedings to the negligence of his former advocates and lack of knowledge of the judgment. While negligence of counsel may, in appropriate circumstances, constitute suficient cause, it is not an automatic passport for setting aside. 8. In Savings and Loan (K) Ltd v Susan Wanjiru Muritu Nairobi HCCC No. 397 of 2002 [2006] eKLR, the Court held that a litigant must demonstrate diligence and cannot entirely shift blame to counsel without showing steps taken to follow up the matter. 9. In the present case, the Defendant admits being aware of the suit and having instructed counsel. There is no suficient evidence of sustained efiort made to follow up the case until execution proceedings commenced. This conduct leans towards indolence rather than excusable mistake. 10. Further, the Court takes judicial notice that children matters are of a continuous nature. However, the existence of that principle does not justify reopening concluded proceedings absent good cause. 12. That said, the Court must balance procedural justice with substantive justice, particularly in matters involving children. In CMC Holdings Ltd v Nzioki [2004] 1 KLR 173, the Court of Appeal emphasized that where a triable issue is disclosed, the court should lean towards allowing a party to be heard. 13. The Defendant has raised issues regarding his income, ability to pay, and the need for proportional contribution. These are not frivolous and touch on Section 114 of the Children Act, 2022 which requires the Court to consider the means, needs, and responsibilities of each parent when making financial provision orders. 14. However, even where a court is inclined to set aside judgment, the same cannot be done in a manner that prejudices the welfare of the child. The needs of the minor are immediate and ongoing. 15. Turning to the Plaintifi’s application for attachment of earnings, Section 121 of the Children Act, 2022 expressly empowers the Court to enforce maintenance orders through attachment where a party defaults. 16. In JKM v HWN [2019] eKLR, the Court held that: “ Maintenance orders are not optional; they are mandatory obligations imposed in the best interests of the child, and courts must ensure compliance through appropriate enforcement mechanisms.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/231/eng@2026-06-23 2

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17. The Defendant has admittedly not complied fully with the decree. His argument that he was unaware of the judgment does not negate the fact that the child’s needs remain unmet. 18. The Children Oficer’s reports from both Nakuru and Embakasi underscore that the minor’s needs, particularly education, shelter, and general upkeep, are not being adequately met and that the current arrangement is unsustainable. Both reports converge on the principle that both parents must assume responsibility. 19. The Court is also guided by ZAK v MA & Another [2013] eKLR, where it was held that: “ The right of a child to maintenance cannot be delayed or defeated by procedural technicalities or disputes between parents.” 20. The Defendant’s financial constraints are a relevant consideration but not a bar to enforcement. Rather, they may justify variation, not non-compliance. Determination 21. Having weighed all the factors, this Court finds that while the Defendant has raised arguable issues, he has not demonstrated suficient cause to wholly set aside the judgment. However, in the interest of justice and fairness in apportionment of parental responsibility, there is need for limited intervention. Orders 1. The Defendant’s application dated 26th March 2026 succeeds only to the limited extent that the issue of the quantum of maintenance is reopened for a variation hearing on a priority basis 2. The judgment of 28th October 2025 is not set aside, but the maintenance quantum shall be reviewed after hearing both parties on their respective means 3. Pending such review, the existing maintenance orders shall remain in force 4. The Plaintifi’s application dated 21st January 2026 is left in abeyance and to be determined once the order (1) and (2) above has been handled. 5. Mention 13th July 2026 RULING DATED SIGNED AND DELIVERED THIS 23RD DAY OF JUNE 2026 SIGNED V. O. ADET SENIOR PRINCIPAL MAGISTRATE In the presence of Kimotho for the Plaintifi Mathenge for Defendant/applicant Ms. Chemutai as the Court Assitant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/231/eng@2026-06-23 3

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