JK v EW

Defendant/Respondent reportedly fled her matrimonial home and refused to grant the child’s access and custody to the Plaintiff/Applicant. He added that despite seeking help from the Bungoma South Sub County Children Officer’s office as evidenced by the letters dated 10th June 2026 and 01st July 2026 the Defendant/Respondent had denied him custody and access to the child; hence the instant Application. 4. He also filed a screen shot of his Social Hospital Authority’ s (SHA) insurance account and M-Pesa statements screen shots in support of his position that he has been dutifully providing for the child’s maintenance and upkeep. 5. In response, the Defendant/Respondent filed a Replying Affidavit sworn on 10 th August 2026 where she conceded that parental responsibility is an equal right to be enjoyed by both parents. 6. She further averred that she was willing to cater for the child’s shelter, food, clothing, and medical care through her SHA insurance cover. She added that, given the child’s age, it was in the child’s best interests that she remains in her actual custody. 7. The Defendant/Respondent urged this court to order the Plaintiff/Respondent to cater for the child’s school fees and school-related expenses. She also expressed her willingness to have the child transferred from her current school to another school of equal or better standards where the Plaintiff/Applicant should meet the educational expenses. 8. She added that the Plaintiff/Applicant was at liberty to access the child’s school during weekdays to check on the child’s educational development. Further, she averred that the Plaintiff/Applicant may be granted access to the child on alternative weekends by picking the child up on Friday evening and returning her on Sunday evening. 9. On 21st July 2021, this court directed the parties herein to file their respective Affidavit of Means. This court also invoked section 97(1) of the Children Act and directed the Bungoma South Sub-County Children Officer (“the Children Officer”) to file the child’s social inquiry report. Consequently, the Children Officer filed the child’s social inquiry report dated 18th August 2026 showing that the parties herein appeared before the Children Officer on 15th June 2026 when they agreed that the Plaintiff/Applicant would remit Kshs. 3,000/= monthly towards the child’s upkeep and contribute Kshs. 15,000/= towards the child’s school fees. They also agreed that the Plaintiff/Applicant would access the child at least once a month, preferably during weekends, and during school

page 2 of 11

holidays. They further agreed that they would present themselves at the child’s school for recognition as the child’s parents to monitor the child’s academic progress. 10. The Children Officer added that the Defendant/Respondent breached the terms of the above agreement by denying the Plaintiff/Applicant access to the child when they advised the Plaintiff/Applicant to move this court appropriately. 11. The Defendant/Respondent also filed her Affidavit of Means sworn on 06 th August 2026 where she averred that her sole source of income was her monthly salary of Kshs. 15,000/= from her teaching job at (particulars withheld) school. She also averred that her residence was conducive for the child’s stay and that she had the requisite financial, emotional, and physical capacity to care for the child. The Plaintiff/Applicant did not file his Affidavit of Means. ANALYSIS & DETERMINATION 12. This court has given due regard to the pleadings on record in their entirety as well as the contents of the Children Officer’s report dated 18 th August 2026. This court is of the considered view that the issues for determination are whether the instant Application and the orders sought are merited, and who should cater for the child’s school fees and educational needs. Whether the instant Application and the orders sought are merited 13. The Plaintiff/Applicant prays for communication with the child, access to the child at the child’s school, and joint legal and physical custody of the child. (a) Communication with the child 14. The parties herein recorded a consent on 20th August 2026 where they agreed that the Plaintiff/Applicant was at liberty to communicate with the child between 1800hrs1900hrs through the Defendant/Respondent’s mobile phone pending the hearing and determination of the suit. (b) Plaintiff/Applicant’s access to the child 15. A reading of the Children Officer’s report on record shows that on 15 th June 2026, the parties herein agreed on the Plaintiff/Applicant’s access to the child at the child’s school for recognition as the child’s parent to enable him to monitor the child’s academic progress.

page 3 of 11

16. The said agreement is a Joint Parental Responsibility Agreement dated 30 th October 2025 (“the PRA”) per section 33 of the Children Act (“the Act”). A PRA is akin to a consent order; therefore, it can only be varied, revoked, or set aside if the conditions for setting aside a consent order are established. 17. The principles to guide courts on when to set aside a consent order were well articulated in the Jamaican case of Windsor Commercial Land Company Ltd & others v Century National Merchant Bank Trust Ltd SCCA 114/2005, where the court stated; “ The court will not interfere or disturb a consent order between the parties other than on those grounds in which it would interfere with any other contract. These would include mistake, misrepresentation, duress, and undue influence.” 18. In Duncan Onyango Odera v Mary Adhiambo Wasonga & Eliud Otieno Odingo (Suing as Legal Representatives of the Estate of Benard Ooko Otieno alias Benard Otieno Odero [Deceased] [2021] eKLR Aburili J observed as follows on the conditions of setting aside a consent order: "[30] ..a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non- disclosure of material facts or mistake or for a reason which would enable the Court to set it aside." 19. The common thread running through the authorities above is that for a consent order or a PRA to be set aside or varied, there must be exceptional circumstances which include fraud, mistake, coercion, change of circumstances from the date the consent was adopted, or any other sufficient cause. 20. There is nothing on record to suggest that the exceptional circumstances set out in the preceding paragraph exist in this case. Therefore, the parties herein must be bound by the terms of the PRA that they entered into. 21. Notably, the Defendant/Respondent is not against the Plaintiff/Respondent accessing the child in school. The children's officer is also not against the Plaintiff/Respondent accessing the minor. 22. It is against this backdrop that this court orders that the Plaintiff/Applicant is at liberty to access the child in school in line with the child’s school’s rules and regulations on access of learners in the interim.

page 4 of 11

23. On the Plaintiff/Applicant’s access to the child beyond school, the Defendant/Respondent and the Children's Officer agree that the Plaintiff/Applicant can access the child during weekends. 24. The Defendant/Applicant suggested that the Plaintiff/Applicant be permitted access to the minor on alternative weekends only by picking the child up on Friday evening and returning her on Sunday evening. 25. Taking the totality of the circumstances of this case into consideration, this court grants the Plaintiff/Applicant access to the child as well as physical/actual custody of the child from the evening of the last Friday of every month until the evening of the last Sunday of the same month, pending the hearing and determination of this suit. The parties herein will agree on the time and the place where the Plaintiff/Applicant will pick up and hand back the child to the Defendant/Respondent. (c)Physical and legal custody of the child 26. The Defendant/Respondent has the child’s actual and physical custody in the interim. She prayed that the status quo on the child’s physical custody be maintained given the child’s age. However, she was not against the Plaintiff/Applicant having the child’s physical custody during school holidays provided that the same is done during alternate weekends from Friday evening to Sunday evening. 27. This court is minded that in making a decision concerning a child, the best interest of the child is always paramount as set out under Article 53 (2) of the Constitution and emphasized under section 4(3) of the Children Act. 28. Section 4(3) of the Act provides as follows:“All judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to— a) Safeguard and promote the rights and welfare of the child; b) Conserve and promote the welfare of the child; c) Secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.”

page 5 of 11

29. The foregoing demands this court to ensure that in determining the minor’s actual/physical custody during school holidays, such a determination must promote the welfare and rights of the child, and secure for the child such guidance and correction as is necessary for the welfare of the child. 30. This court is of the humble view that the actual/physical custody of a child, where the child’s parents are separated, does not start and end with the child’s parent(s) simply seeing or meeting the child during a weekend. 31. Actual/physical custody of a child gives a child an opportunity to bond with their parent as well as extended relatives. The said bonding is likely to help in the child’s complete growth, given that such bonding sessions are likely to enable a parent to know their child’s behavior, fears, and wishes, thereby enabling a parent to guide and correct the child appropriately. 32. The bonding between a child and their parent, as well as paternal relatives, will also ensure that a child grows up with an identity. It is in the child’s best interests to grow up with an identity. 33. Further, it is also during that actual/physical custody of the child that the child will learn and know the ways and culture of their people. A child has a right to know their people’s ways and culture as demanded by Article 44 of the Constitution. Article 11 of the Constitution also recognizes culture as the foundation of this nation. This court is obligated to enforce the Constitution. 34. A child can only enjoy the above where quality bonding with parents and relatives is granted. The said quality bonding can only be achieved through quality time. That quality time cannot be a weekend as suggested by the Defendant/Respondent. 35. Section 95 (2) and 103 (1) of the Act list the factors a court should consider before making a custody order. Those factors were restated in MAK v RMAA & 4 Others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (Civ), where the Supreme Court of Kenya listed guidelines for determining custody matters, to wit:“Courts, therefore, while making a decision that will impact the child are mandated to consider all circumstances affecting the child. As such, we are of the view that the following guidelines are necessary and ought to be considered when balancing a child’s best interests and parental rights and responsibility:

page 6 of 11

1.The existence of a PRA between the parties. 2.The past performance of each parent 3.Each parent’s presence including his or her ability to guide the child and provide for the child's overall well-being. 4.The ascertainable wishes of a child who is capable of giving / expressing his /her opinion 5. The financial status of each parent 6. The individual needs of each child. 7.The quality of the available home environment 8. Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted. 9.Need to ensure that children are not placed in alternative care unnecessarily. 10.The mental health of the parents and 11.The totality of the circumstances.” 36. This court has duly considered the factors above as well as the Children Officer’s social inquiry report on record. The said report is clear that the parties herein are capable of having the child’s actual/physical custody. Further, this court is well aware that none of the parties herein has a superior right over the other regarding the child’s actual/physical custody unless there are militating factors against granting either of them the children’s physical custody. None exist in this case. Therefore, the Plaintiff/Applicant and the Defendant/Respondent must share the child’s physical/actual custody in a manner that best serves the child’s best interests elucidated above. 37. Flowing from the above and taking the totality of the circumstances of this case into consideration, this Court maintains the status quo on the child’s physical/actual custody

page 7 of 11

with a rider that the Plaintiff/Applicant will have the child’s actual/physical custody during the first half of every school holiday in the interim. 38. The parties herein will, however, have the child’s joint legal custody in the interim; this is to say that both parents have a right to participate and make inputs in the major decisions concerning the child, including but not limited to the educational, religious, and medical decisions. Who should bear the child’s school fees and school-related expenses 39. The PRA on record shows that the Plaintiff/Applicant committed to pay Kshs. 15,000/= per year towards the child’s school fees. 40. The Defendant/Respondent has committed through her Replying Affidavit on record to cater for the child’s shelter, food, and clothing as well as medical care. In the circumstances, she urged this court to order the Plaintiff/Applicant to cater for the child’s school fees and school-related expenses. She also expressed her willingness to have the child transferred to another school of similar or better standards to her current school where the Plaintiff/Applicant can pay the child’s school fees and school-related expenses. 41. The foregoing shows that the Defendant/Respondent is already catering for almost all the child’s needs save for the child’s school fees and school-related expenses, where the Plaintiff/Applicant committed to contribute Kshs. 15,000/= annually. 42. The parties herein have an equal responsibility to contribute towards the child’s basic needs. Neither parent is to be overburdened in catering for the child’s needs. Both parents are legally required to cater for the child’s needs equally and equitably based on their respective financial capacity. This was eloquently explained in AAO v BOO (Civil Appeal E077 of 2023) [2025] KEHC 6209 (KLR), where the court held thus on the parents’ duty to maintain their children: “9…Be that as it may, the child must be provided for in equal measure by both parents. While the earning and financial capacity of the parents is a ground for consideration in matters of child maintenance, none of the parents should be loaded with the responsibility of the child’s needs more than the other. That is the tenet of Article 53(1)(e) of the Constitution and Section 8 of the Children’s Act Chapter 141 of the Laws of Kenya…I agree with Honourable Justice J.N. Onyiego in MOA v HAO (2021) eKLR where he held that;

page 8 of 11

‘It will be too much to demand 100% maintenance from one parent while the other is playing the role of spectator yet claim to be a responsible parent. Children matters or needs should not be used to punish one parent at the comfort of another parent. Children should be viewed as a blessing to parents but not a curse. To overburden one parent at the comfort of another will be tantamount to punishing the overburdened parent and to some extent perpetuating irresponsibility or laxity on a parent who is duty bound to contribute towards a child’s welfare.’ 10.Based on the above, it is my holding that the respondent and the appellant had equal responsibilities to take care of the child and any apportionment should be based on equitable share. Equitable share of course does not mean a cent-to-cent equality but in a manner that the burden is not skewed against any of the parties considering the circumstances and needs of the child.” (Emphasis added) 43. The Defendant/Respondent’s declared monthly income set out in her Affidavit of Means on record is Kshs. 15,000/=. Given that the Defendant/Respondent is already catering for the minor’s shelter, clothing, food and medical care as well as contributing towards the child’s school fees and school-related expenses, this court is of the considered view that the Defendant/Respondent is already overburdened compared to the Plaintiff/Applicant who only committed himself to pay Kshs. 3,000/= per month towards the child’s upkeep and Kshs. 15,000/= annually towards the child’s school fees. 44. The preceding paragraph inclines this court to find that the Defendant/Respondent’s suggestion that the Plaintiff/Applicant be ordered to pay the child’s school fees and school-related expenses is reasonable, just and fair in the circumstances. 45. The Plaintiff/Applicant did not file his Affidavit of Means for this court to ascertain his financial capacity or standing. Be that as it may, the Plaintiff/Applicant has never informed this court, during the several instances he addressed this court, that he is a man of straw. He must be a man of means capable of paying the child’s school fees and school-related expenses. 46. However, nothing on record suggests that the Plaintiff/Applicant participated in choosing the child’s current school. The law in this jurisdiction is that a court cannot force a parent to pay their child’s school fees and school-related expenses in a school they did not

page 9 of 11

participate in choosing (see AAO v BOO (Civil Appeal E077 of 2023) [2025] KEHC 6209 (KLR)). 47. Therefore, for now, the Plaintiff/Applicant will continue paying Kshs. 15,000/= annually towards the child’s school fees in her current school until the conclusion of the current academic year. Upon the conclusion of the current academic year, the parties herein will have a sit-down and choose a school where the Plaintiff/Applicant can afford to meet the child’s educational needs fully. 48. In the event the parties herein fail to agree on the choice of the child’s school after the conclusion of the current academic year, the Plaintiff/Applicant will be at liberty to continue paying Kshs. 15,000/= annually towards the child’s school fees and schoolrelated expenses in the child’s current school with the Defendant/Respondent paying the balance, if any. DETERMINATION 49. The upshot of the foregoing is that this court makes the following interim orders: a) The Plaintiff/Applicant to continue paying Kshs. 3,000/= monthly to the Defendant/Respondent towards the child’s upkeep b) The Plaintiff/Applicant is at liberty to communicate with the child between 1800hrs-1900hrs through the Defendant/Respondent’s mobile phone pending the hearing and determination of the suit. c) The Plaintiff/Applicant is at liberty to access the child in school in line with the child’s school’s rules and regulations d) The Plaintiff/Applicant shall have access to the child as well as actual/physical custody of the child from the evening of the last Friday of every month until the evening of the last Sunday of the same month, pending the hearing and determination of this suit. The parties herein will agree on the time and the place where the Plaintiff/Applicant will pick up and hand back the child to the Defendant/Respondent e) The Defendant/Respondent will have the child’s actual/physical custody subject to order (d) above and order (f) below f) The Plaintiff/Applicant will have the child’s actual/physical custody during the first half of every school holiday in the interim.

page 10 of 11

g) The parties herein will have the child’s joint legal custody in the interim; this is to say that both parents have a right to participate and make inputs in the major decisions concerning the child, including but not limited to the educational, religious, and medical decisions h) The Plaintiff/Applicant to continue paying Kshs. 15,000/= annually towards the child’s school fees in her current school until the conclusion of the current academic year i) The parties herein are directed to have a sit-down at the conclusion of the current academic year and choose a school where the Plaintiff/Applicant can afford to meet the child’s educational needs fully j) In the event the parties herein fail to agree on the choice of the child’s school as contemplated in (i) above, the Plaintiff/Applicant will be at liberty to continue paying Kshs. 15,000/= annually towards the child’s school fees and schoolrelated expenses in the child’s current school with the Defendant/Respondent paying the balance, if any k) Each party to bear their own costs 50. Orders accordingly. Read, signed, and delivered in open Court at Bungoma this 08th day of September 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Plaintiff/Applicant Defendant/Respondent C/A: Mr. Rioba/Ms. Cherop

page 11 of 11