In re MM (Minor) [2022] KEHC 2394 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY APPEAL E033 OF 2012

IN THE MATTER OF THE CHIDLDREN ACT NO 8 OF 2001 MM (A MINOR)

GAM ................................................................................APPELLANT/APPLCIANT

VERSUS

HBAO ................................................................................................. /RESPONDENT

JUDGMENT

1.  Sometime the year 2018, HBAO (hereafter the respondent) started cohabiting with GAM (hereafter the appellant) as husband and wife. As a couple, they were blessed with a baby known as FMM born on 15th January, 2020. Following allegations of child  neglect against the  appellant, the  respondent  moved to  Tononoka children’s  court on 15th January 2020 vide  Children case No 8/2009  seeking various  orders against the  applicant as follows;

1    A declaration  that  both  the  plaintiff  and the  defendant have  equal parental responsibility  for the issue herein  namely FMM and order giving that effect.

2  A maintenance order requiring the defendant to make periodic financial payment as stated in paragraph 7 above or as the court shall deem fit, to the plaintiff in respect of the maintenance of the child herein.

3    The defendant do pay school fees in respect of his child when the same attains school age.

4    The defendant do take medical cover for the minor herein.

5    The defendant do meet the additional education and medical needs of the child herein as and when the same may arise.

6    Actual/physical custody of the child do vest in the plaintiff

7    The defendant  be permanently restrained from removing the  child herein from the local limits  of the  jurisdiction  of the  Republic of Kenya without  prior  consent of the plaintiff  or an order from this honourable court

8    Costs of this suit and interest therein at court rates.

9    Any other relief that this honourable court may deem fit.

2.   The appellant  filed  a  defence and  counter claim dated 16th  November, 2020 seeking that; interim orders made on 15th October, 2020 and 21st October, 2020 in   favour of the  respondent be discharged; a maintenance  order  requiring the  plaintiff to make periodic financial payment for the  child’s upkeep be made, and lastly , legal  custody,  care and control of the baby be provided for.

3.   Upon conclusion of the hearing, the court pronounced its judgment on 8th  September, 2021 thus  ordering that;

1    That  both parties have equal parental responsibility for the  issue FMM

2    Legal custody to be joint between the parties.

3    Actual/physical custody care and  control of the  child to vest in the   plaintiff

4    The  defendant be granted unlimited  access to the  child during day time on Monday, Wednesday and  Saturday from 9. 00 am ot 5. 00pm on  each  day until he will be age of three years old when he will be able to have sleep overs at his father’s house.

5    When the child becomes three years old, he can then be able to have sleepovers at the father’s house as it may be agreed on by parties or during the weekends so as not to disrupt his schooling /education.

6    The defendant continues paying rent  at the  rate of not less than  15,000 per month for a period of one year from the  date of this  judgment  and thereafter the  plaintiff  should have  picked up financially so as to  cater  for her own rent, utility bills and to  contribute towards  the child.

7    The defendant  pays child upkeep of Ksh 15,000  per month for  food and daily upkeep payable to the plaintiff  on  or before  the  5th  day of  every month through her M-pesa or to her  bank  account which she  should provide. Which amounts should increase annually at the  rate 10%

8    When the child become of age to join school, the defendant to cater for  the child’s  school fees and school related expenses except  stationeries , school  bag and shoes which should be  catered by the  plaintiff

9    The defendant to take out a medical cover for the child and/or care for medical expenses as and when the same may arise.

10  The  parties to share clothing  equally

11  Each party to offer entertainment while with the child.

12  No orders as to costs.

4. Aggrieved by  the  entire judgment, the appellant  moved to this court on appeal  vide  a memorandum of  appeal  dated 24th September, 2021  citing 30  grounds of  appeal as follows;

1    The learned trial magistrate erred in law and fact by failing to grant all the prayers sought in the case by the appellant despite gravity of the evidence adduced during trial.

2    The learned trial magistrate erred in law and fact by failing to consider the principles of granting custody as enshrined in the provisions of the Children’s Act No 8 of 2001.

3    The learned trial magistrate erred in law and fact in failing  to consider the principles of  grating maintenance  as enshrined in the provision  of the  Children’s Act No 8 2001.

4    The learned trial magistrate erred in law and fact in putting the interest of the respondent before those of the minor contrary to the provision of the Children Act No. of 2001 and the Kenyan Constitution.

5    The learned trial magistrate erred in law and fact by failing to consider the existing oral agreement in place on shared custody before the filing of the case.

6    The learned trial magistrate erred in law and fact by failing to consider that the appellant had been the primary care giver and nurturer of the child since birth while the respondent was going to work.

7    The learned trial magistrate erred in law and fact by failing to consider the dual nationality of the child and restricting the free movement of the child outside Kenya.

8    The learned trial magistrate erred in law and fact by failing to order shared custody with overnight stay of the child with the appellant.

9    The learned trial magistrate erred in law and fact in finding that the appellant had only exercised right of unlimited access during daytime yet the respondent had refused to let him stay overnight with the child as per the evidence on record.

10  The learned trial magistrate erred in law and fact in finding that the very rare occasions when the appellant hired a maid to assist with the child upkeep was a major factor in determining access period against the respondent.

11  The learned trial magistrate erred in law and fact in using assumption of breastfeeding to deny the appellant shared physical custody with overnight stay until the child reaches the age of three years contrary to the evidence on record.

12  The learned trial magistrate erred in law and fact in ordering the parties to agree on overnight stay when the child reaches age three when the evidence on record was that the respondent had totally refused to allow it.

13  The learned trial magistrate erred in law and fact in ordering the parties to agree on overnight stay when the child reaches age three during the weekends without considering the school holidays.

14  The learned trial magistrate erred in law and fact in failing to consider that the appellant had applied and paid for retirement visa to settle in Kenya and restricting the movement of the child outside Kenya.

15  The learned trial magistrate erred in law and fact in granting alternate intermittent access for less days than the existing oral agreement to the appellant yet he was the one nurturing the child.

16  The learned trial magistrate erred in law and fact in finding that the respondent should have more days of actual physical custody than the   appellant during the week yet the appellant has been the primary care giver and nurturer of the child since he was born and he has been at home throughout as a retiree.

17  The learned trial magistrate erred in law and fact in ordering the appellant to pay cash directly to the respondent directly to the respondent   rather than the appellant shopping and or providing shopping voucher for the child.

18  The learned trial magistrate erred in both law and fact in ordering the   appellant to pay cash directly to the respondent rather than the appellant shopping for the child.

19  The learned trial magistrate erred in both law and fact in failing to make a finding on maintenance payable by the respondent and ordering the appellant to cater for all the needs of the child.

20  The learned trial magistrate erred in both law and fact in failing  to make a finding on  maintenance  payable by the respondent yet she had deliberately stopped working in the  business opened for her by the  appellant  and was also working at a restaurant.

21  The learned trial magistrate erred in both law and fact by failing to allocate the maintenance obligation in the best interest of the minor.

22  The learned trial magistrate erred in law and fact in finding that the appellant paid for service charge of Ksh 30,000. 00 per month.

23  The learned trial magistrate erred in law and fact in finding that the appellant earned more money than what he had disclosed as his sources of income and assistance from his family.

24  The learned trial magistrate erred in law and fact in finding that the appellant lived in well of suburb and was capable of providing more for the child.

25  The learned trial magistrate erred in law and fact in failing to analyse the testimony of the   witnesses, the documents produced in evidence and adopted by the witnesses as testimony.

26  The learned trial magistrate judgment was harsh punitive and biased against the appellant and the child and was against the weight of the evidence and law.

27  The learned trial magistrate erred in law and fact in failing to consider that parental responsibility as the obligation is equally shared by both parents.

28  The learned trial magistrate erred in law and fact in failing to consider and apply the law appropriately and arriving at the entire judgment on wrong principles of law.

29  The learned trial magistrate erred in both law and fact by failing to consider the appellant’s written submissions and authorities.

30  The learned trial magistrate erred in fact and law  in failing to  adhere to the Constitution  by  denying the appellant a fair trial and discriminating  him and the child by being  biased against  the  appellant and the minor consistently on her judgment

5.   On 4th October, 2021 the applicant filed a Notice of Motion dated 6th October, 2021 seeking stay of execution. However, parties agreed to compromise hearing of the application in favour of the appeal.

6.   Parties submitted orally with Ms Osino appearing for the appellant. Counsel condensed the grounds of appeal into three. It was submitted that as a general rule, custody of a child aged below 10 years is normally given to the mother.

7.   However, it was Ms Osino’s submission that the limitation of access to the child against the father while the child is below 3 years is unfair. She contended that limiting access based on the age of the child will mean denying the appellant an opportunity to spend nights together with the child. Further, that the appellant will not have an opportunity to travel outside the country with the child who holds dual citizenship as a Kenyan and British national.

8.   Ms Osino  asserted that  the excuse given that  the  child  was  still  breastfeeding is not  tenable as there  are  days the  child has  spent  up to  6 nights  without the mother. That the child requires emotional support from both parents. In support  of the  proposition that  a child of  tender age  needs both parents’ emotional support,  counsel  referred the court  to the holding  in the case  of In  MVM ( 15986/2016 (2018)ZAGPJHC 4 (22Jan.2018 in the  high court of  south Africa,  MOA V HAO (2021) e KLR  and HGG V YP( 2017) e KLR.

9.   Regarding the issue of maintenance, counsel opined that the applicant was not opposed to the payment of  Kshs 15000 per month but  rather for the increase of the same  by 10% every  year until the child attains the age of majority. Learned counsel submitted that Sections 23, 24, 94 and 100 of the Children Act does provide for variation of orders. She contended that the order was premature hence advance variation of maintenance orders without appropriate application and reasons given.

10.  Learned counsel further opined that the impugned orders were unconstitutional as they are discriminatory and a mounts to a violation of the appellant’s rights of association with the baby while giving the mother superior rights over the baby. Further, it is in the best interest of the child that he enjoys fatherly love at all times.

11.   In response, Ms Aroka for the respondent relied on the record of appeal and submissions tendered before the lower court. Concerning the issue of  custody and  limited access,  counsel   submitted that the  child is aged  21 months  and still breastfeeding hence not possible for the applicant currently living separately to stay with the a Child of that age overnight in the absence of the mother.

12. Counsel opined that the trial court considered the age factor and properly   arrived at a meritorious conclusion. It was submitted that for an appellate court to interfere with a decision of the trial court, it must be satisfied that the same was arrived at based on wrong principles. To buttress that position, the court was referred to the holding in the case of   MOA V HAO (Supra).

13.  According to  M/s Aroka, the  appellant should be  patient as  the limited  access was  pegged on the  child  attaining 3 years  which is one  year away. Regarding the mode of payment of the monthly upkeep, counsel contended that, it should be paid through M -pesa or cash and not by submission of supermarket voucher system.  As to 10% annual increment , counsel  was of the view that the  court was  thinking big and  should be lauded for being forward looking and thinking  hence  a saving in terms of costs as  parties  will not come to court regularly for review orders.

14.  This is a first appeal. Being the first appellate court,  I am duty bound to  re-evaluate, re-examine and re consider  the  evidence tendered before the trial court and  arrive at an  independent  conclusion or determination without losing  sight of the fact  that the trial court had the advantage of seeing and listening to the witnesses to be able to assess their  demeanour. See Sielle Vs Associated Motor Boat  Co. ( 1968) E.A 123 where the court held that;

“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must  reconsider the  evidence,  evaluate it itself and draw its own conclusions though it  should  always  bear in mind that it has  neither  seen nor  heard  the  witnesses and should make  due  allowance in this respect…”

15.  I have considered the record and grounds of appeal herein.  I have also considered oral submissions by both counsel. Although the appellant moved to this court citing 30 grounds of appeal he consolidated them into three grounds.

16.  The first issue is the demand for unlimited access to the child. According to the trial court’s judgment, legal custody was awarded to both parents and actual physical custody, care   and control of the child to vest in the plaintiff. However, the  appellant was  granted  unlimited  access to the child  during day  time on Monday, Wednesday  and Saturdays from 9. 00 am to 5. 00pm until the child attains the  age  of 3 years when he  shall be  able to have  sleep overs   at his father’s  house.

17.  According to the appellant, the child needs both parents’ emotional support hence the limitation of access was geared towards denying the child fatherly parental love and emotional support.

18.   It is trite law that as a general principle, custody of   a child of tender age is normally awarded to the mother unless there are exceptional circumstances. This position was indisputably expressed by the court of appeal decision  in  the  case of J O V S A O (2016) e KLR where the court stated that;

“…there is  a plethora of decisions  by this court as whereas the  high court that  in  determining  matters of  custody of children and especially of tender age, except where  exceptional circumstances  exist, the custody of such  children should be  awarded to the  mother because mothers are best  suitable to exercise care and  control of the  children. Exceptional circumstances  include; the  mother being un settled; where the mother has taken  a new husband;  where she  is  living in  quarters that are in  deplorable state; where her  conduct is  disgraceful and /or  immoral …”

19. The underlying factor for award of custody of a child of tender age to the mother is the suitability to look after the child. The word suitability characterises a mother as a special personality in the life of a child of tender age than the father. One of the factors making the mother suitable is breast feeding which a father cannot do.

20. In this case, there is no dispute that the child is almost two years old and still breastfeeding. In the circumstances, the trial court in its holding found it fit to limit access for some time until the child attains 3 years.

21. For all purposes and intent, the child cannot forcibly be stopped from breastfeeding for the sake of spending a night with the father.  To allow such scenario will be tantamount to denying the child proper nutritional health support which he needs. At an earlier age of growth, a mother’s milk is required for mental and biological development of the body of a child. It cannot be compromised unless in exceptional circumstances which do not apply in this case.  It will not be in the best interests of the child that he be denied maternal milk for the sake of spending with the father.

22. In any event, at the age of two, the baby has unique needs which only a mother can provide. The claim that the mother had once left the child for 6 nights as a ground to stop breastfeeding is not sufficient. At page  22 of the  proceedings  (page 393 of the  record of appeal)  the  respondent   admitted  on cross examination that between 29th  December, 2020 and  4th  January, 2021  she left the child with  a nanny. She  however claimed she  was  forced out of  their house by the  appellant and that she  made  sure she  had  pumped  enough  breast milk for the baby.

23. I note from the trial court’s judgment at page 8 (Record of appeal page 447) that the court extensively considered the element of daily access and found it tedious for the child. As to night sleep overs, the court found that it was not possible as the appellant lived alone with no sit in helper.

24. The court was pretty aware of the unique circumstances surrounding custody of the child below 3 years. All factors remaining constant, the best interests of the child demands that the child should remain under the care and  control of the mother until  the  age of 3 years when  a new set of conditions with  unlimited access would  possibly apply . In any event, 3 years is one year away hence the appellant will not suffer any prejudice by not spending a night with the baby. For those reasons, that ground is not available.

25.  The second ground urged is the issue of maintenance which was argued in two fold. Firstly, the increase on the monthly expenses by 10% every year .The appellant felt that the court over stretched its powers by varying the order without any review application in place.

26.  It is trite that a children’s court has the discretion to determine the extent of maintenance payable in favour of a child.  However, this discretion must be exercised judicially and not whimsically or capriciously.

27. Nevertheless, as an  appellate court,  I am duty bound not to  unnecessarily  interfere with  decisions of a trial court which is  arrived at  as a matter of discretion  unless found that the  trial court   applied wrong principles .See Mbogo  Shah and another Vs  Republic(1968) E.A93 and  Richard Kaitany Chemagong Vs Republic ( 1984) e KLR where the court held that an appellate court will normally not interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is  based on no evidence, misapprehension of evidence or judge is shown to have demonstrably acted on wrong principles.

28.   In this case, there is no factual foundation laid to justify annual increment of maintenance by 10%. There is no provision in the children Act for anticipatory economic changes to warrant a 10% increase or interest. Maintenance is not a debt so to speak to called for interest.

29.   The drafters of the Children Act were fully aware of changing circumstances that may warrant a review or variation of orders a court may have made. This is already provided under Section 94 and 100 of the Children Act. The order of variation of maintenance expenses would aptly be dealt with under the relevant provisions.

30. In my view, the court did prematurely vary its orders in advance hence acting on a wrong principle. Even if we were to assume existence of factors like inflation, it would affect the appellant as well. If the economy is bad, it will be bad for everyone.  If inflation goes down, everybody will benefit. The court acted on the assumption that the appellant’s income shall always be stable and improving. To that extent, I do agree with Ms Osino’s submission that the court acted on a wrong principle while at the same time it overlooked relevant provisions which deal with variation of orders. To that extent , the  order for increase  by  10% of the maintenance  expenses  is set aside  and  substituted with the order that the  applicant shall continue paying kshs15,000 as child maintenance monthly.

31.   Regarding the mode of payment of the maintenance expenses, the appellant insisted in paying by buying vouchers in a super market. This is informed from the view point that the money if paid in cash will not serve the intended purpose. I think this is over stretching supervisory role on the respondent on how she should be spending the money. The needs of a child are unique and only the mother knows how to balance them.  It is the duty of the mother to plan on how to support the child with the kshs15,000 per month. There is no proof tendered to prove that the money may have been misused before.

32.   It is unfair to micromanage the little maintenance expenses the appellant was ordered to pay the respondent for the upkeep of the baby. I do not buy the idea of buying vouchers hence I do uphold the mode of payment directed by the trial court.

33. As to whether the  orders made are in the best interest of the child as per Article 53 of the Constitution , I have no reason  or  evidence to suggest that  the  constitutional rights  on the  best interests of the  child have been  violated  nor is there  proof  that the  applicant’s  constitutional  rights have been infringed. In fact, he should be happy that the entire judgment was in his favour and should be the last party to complain.

34. Having held as  above, it is my finding that the   appeal herein   partially succeeds to  the  extent that the 10% annual  increment of  the maintenance  expenses is set aside and the  rest of the orders shall remain in force.

DATED SIGNED, AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY, 2022

J. N. ONYIEGO

JUDGE