D N W v P M W [2004] KEHC 87 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE 30 OF 2003

IN THE MATTER OF THE CHILDREN ACT N0. 8 OF 2001

AND IN THE MATTER OF

D N W.................................................... APPLICANT

AND

DR. P M W........................................ RESPONDENT

RULING

Diana Ndele Wambua was born on 1st February 1982 to Dr.P M W and R M W. She has filed this Originating Summons under Section 91,23 of the Children Act2001 and what I would call the Omnibus clause known as all the enabling and guiding provisions of the law. What was argued before me was first of all, the applicant be granted leave which will enable her to file an application for an order of maintenance, against her father who is the respondent in this matter.The applicant is 22 years of age, she is seeking for an order compelling her father to pay part of, the whole university fees., or any sum that the court may consider fair and just.

The applicant is engaged as a student at the university of[particulars withheld] undertaking a medical degree under the parallel programme since 2001. The applicants parents separated in 1995, and custody of the children of the marriage including the applicant was given tothe mother. The respondent was ordered to pay school fees for the children. He paid school fees for the applicant up to Form IV level at [particulars withheld] Secondary School. The applicant qualified to go tothe university but she had already attained the age of majority and so the maintenance order lapsed.

The applicant wanted to pursue a degree in medicine and opted to apply under the parallel programme. The respondent is a lecturer at the University of[particulars withhed], he is entitled to a staff education support (SESF) fund for his children which would cover up to 50% ofthe university fees. According to the. SESF forms attached to theapplication a member of staff of University of [particulars withheld] is entitled tothis facility for up to two children. Children must not be more than 30 years at the time of registration for the degree course and thereshould be evidence that the child/children are entirely dependent onthe parent.

An enrolled SESF beneficiary child of a staff member, whocease to be permanent and confirmed employee of University ofNairobi through- death or normal retirement continues to benefit untilhe/she completes the programme enrolled on.

According to the applicant she approached her father to signfor her the form that would entitle her to this benefit but therespondent refused. She sought the intervention of the ViceChancellor to prevail upon the respondent but this did not yield anyresults. Hence the applicant sought the intervention of the courtunder the provisions of the Children Act 2001. The matter was firstfiled before the Children's Court but the court advised (according toboth counsel) that for reasons to do with monetary jurisdiction thematter would better be filed in the High court That is when thematter at the Children’s Court was withdrawn andthe presentapplication was filed. The applicants counsel argued that the High Court has jurisdiction to determine this  matter which touches the matter payment of education as provided for under Section 7(1) of theChildren Act. This right to education can be extended to a child of over 18 years as the court has power under the  provision  of section 28 of the Act the court can extend the parental responsibility inrespect of a child beyond the date of the child's 18th birthday if thecourt is satisfied upon application or on its own motion, that specialcircumstances exist with regard to the welfare of the child.. Thosespecial circumstances would necessitate an extension of time andsuch application may be made by the child, parent or relative, anyperson who has parental responsibility for the child.

Counsel for the applicant urged the court to take judicial Noticeof the Kenyan System of Education where a child starts school at theage of 6 years and until they attain a vocational training, the childremains reliant upon its parents for school fees, university or collegefees beyond the age of 13 years.

The applicant were referred to the provisions of Section 60 ofthe. constitution that gives this court unlimited original jurisdiction inCivil and Criminal matters and although the jurisdiction of this court islimited to matters covered under part II and XII of the Children Act, the natureof this application that involves the education of a childbeyond 13 years involves parental responsibility that is dealt withunder part III of the Act as well.

This application was strenuously opposed by the. respondent.First of all the respondent argued that this court has no jurisdiction todeal with the application for leave. The applicant is not qualified asthe applicant's rights under Sections 14 to 19 of the Children Acthave not been contravened. The definition of a child " means anyhuman being under the age of eighteen years" in this regardtherefore counsel argued that the responsibility of extending parentalresponsibility lies with the children's courts as duly ordained underSection 73 of the Act,

According to the respondent, there are no specialcircumstances that would apply to the applicant who has attained theage of 22 years. The respondent duly discharged his parentalresponsibility and the. only time special circumstances would havearisen is for instance if the applicant attained the age of majoritybefore completing secondary school of the applicant was sufferingfrom any from of disability

The applicant is a normal child who was admitted at the same university to pursue a BA degree course in this regard the applicant isa normal child who can apply for a bursary

Higher Education Board like other children a normal child who can apply for a bursary or loan under the higher Education board like other children who have no support from their fathers. The respondent also took issue with applicant for applyingfor the SESF directly. The applicant made the application withoutconsulting the respondent and now expects the father to becompeted to make a sacrifice. The respondent felt strong by that heis under no legal obligation to make a sacrifice to fulfill moral andsocial responsibility.

In this respect counsel referred to an English authority Norman vs Norman  Allec LR 1950 Page 1083. .  .whereby  the order of maintenance for a child who had attained 16 years could notbe continued because it had already ceased to exist. Counsel for therespondent also referred to the Halsburv's Laws of England Vol.. 17 paragraph  516 which deals with the  duty of the parents  t provide  everychild With education.  According to this text the education should be at the level of compulsory school age hence university education isnot a basic right that a parent should be compelled to provide.

The above is the summary of the facts and argumentspresented in this matter. I have given the submissions dueconsideration and also the provisions of the law. The first issue forme to address is whether this court has jurisdiction to deal with thismatter. As pointed out earlier, the applicant filed this matter beforethe Children's Court. The Act is quite clear what matters fall underthe Children's Court as provided for under Section 73. All mattersunder parts III, V, VII, VIII, IX, X XI and XII should be heard by theChildren's Courts. There is no set ceiling based on monetaryjurisdiction of the magistrate.

The constitution of Kenya Section also gives this court unlimitedoriginal jurisdiction in Civil and Criminal matters. Counsel for theapplicant also submitted that there is a breach of the provisions ofSection 7 of the Children Act which breach can be handled by theHigh Court.

The desperation by the applicant to pursue Higher Educationhas brought her to the High Court and to the Children's Court. The responsibility of the court is to decide all cases according tosubstantial justice without undue regard to technicalities of procedureand without undue delay. In this regard I am satisfied that he courthas jurisdiction to deal with the application as Transferring the matterto the Children's Court would occasion delay, and inconvenience tothe applicant. Secondly there is the issue that was raised regardingSection 7 of the Act whose jurisdiction is vested in the High Court.

The next issue to tackle Is whether there are specialcircumstances that would entitle the extension of parentalresponsibility. The applicant is pursuing a degree course in medicine.She has no ability to pay school fees for herself. The respondent is aprofessor at the same university and he is entitled to Staff EducationSupport Fund (SESF) to the tune of 50% of the fees. The applicantis only requesting the respondent to be compelled to sign the SESFforms for 50%. Her mother has been struggling to raise the other50%. The. respondent is not at all required to pay any money fromhis pockets.

I have carefully considered the reasons given by therespondent for his refusal to sign the form. These reasons are quite clearly articulated in a letter written by the respondent and addressedto the Deputy Vice Chancellor dated 30th' September 2003. Therespondent blames the mother of the respondent and makesaccusations against her for taking him to court whereby he wasordered to pay school fee for the children. He complains of nothaving been consulted when this applicant made a choice of pursuinga degree in medicine. He says it is very painful for him and I canunderstand why he declined to sign the forms. According to him therequest and pursuit by the applicant is instigated by her mother. Therespondent has no relationship with his daughter he has not drawn adistinction between his differences with his wife/mother of theapplicant. The applicant has also not nurtured a cordial relationshipwith her father, but who among the applicant and respondent shouldnurture and promote an atmosphere of happiness, understandingand companionships. I think both should attempt to build thisrelationship as they are the biggest prime movers inthis respect.

Due to this stalemate, the applicant has sought the interventionof this court. It was submitted quite eloquently by counsel for therespondent that this court cannot implement a moral obligation.

Legal obligation by the respondent ceased when the applicant turned18 years and in any case parental responsibility cannot be extendedto include Higher Education,

This has led me to unravel the. mystery of what is basiceducation. According to the Children Act 2001, "Education" meansthe giving of intellectual., moral., spiritual instruction or other trainingto a child". A child means "any human being under the age of 18years". Parliament in its own wisdom provided for a situationwhereby parental responsibility can be extended.

The preamble of the Children Act 2001 has acknowledged theapplication of the principles of the United Nations convention on therights of child and the African Charter on the rights and welfare ofthe child. The Act has also largely incorporated these principles but Iwas particularly drawn to the articles dealing with educationespecially Article 28 ( c) of the United Nations convention on therights of the child- whereby state parties are enjoined to (c )"make higher educationaccessible to all on thebasis of capacity by every appropriate means

(e) Take measures to encourage regularattendance at schools and reduction of drop outrates "   In view of the above, and in my humble opinion, basiceducation is more than just learning how to read, write and calculate.It encompasses the broadest possible sense of learning at any stageof life and it is not confined to childhood and formative years. Thedefinition of education varies depending on the Social Class, personalCircumstances, National Standards and other reasons. Hence tosome people basic education would include higher education ortertiary which is seen as a foundation for working life and further education yet to some other people, education is the first stage of formal schooling and yet to others it extends to full secondary school.

The applicant is a daughter of a medical doctor, a professor atthe university.

The mother's profession is not disclosed but it is said she is aninternational Civil Servant working with a United Nations organization.  Tomy mind these parents belong to an educated.

They have set very high standards for their children and education in this respect can be construed to include higher education in theircircumstances.

I would therefore not fault the applicant for striving to attainwhat she considered to be the best for her, that is medical degreeunderthe parallel programme.

The parents having set high standards for their children have aresponsibility to promote their social progress and better standards oflife for their children especially children who arewilling and who areself driven.

The University of[particulars withheld], a public body has set up a schemefor the education of the children of their staff members. I find therefusal by the respondent to extend this facility to the applicantunreasonable especially when the applicant is not asking therespondent to go beyond what is offered by the scheme.

The sum total of the above analysis leads me to a conclusionthat the circumstances of the applicant looked together with thecircumstance of the respondent, I am satisfied that the applicant should be granted leave to file an application for an order ofmaintenance against the respondent. I would however wish to add that the said maintenance should not go beyond what is providedunder the SESF and as long as the respondent remains an employeeof [particulars withheld] University,

Since this is a family matter there will be no orders to costs.

Ruling read and signed on 21st May, 2004.

MARTHA KOOME

JUDGE