MMW v SCM [2022] KEHC 13901 (KLR)

MMW v SCM (Civil Appeal 9 of 2019) [2022] KEHC 13901 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13901 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 9 of 2019

SN Riechi, J

October 5, 2022

Between

MMW

Appellant

and

SCM

Respondent

(Being an appeal from the Ruling of Hon. C. Menya, SRM in Kimilili S.R.M Children Case No. 14/2017 delivered on 28/12/2018)

Judgment

1. The trial court delivered its judgement in the matter dissolving the marriage between the appellant and the respondent and further decreed the custody of the children to vest with the respondent herein.

2. After the delivery of the judgement, the respondent herein moved court by an application dated October 1, 2018 seeking an order that; the judgement of the court be varied to the extent that the appellant do provide all the needs of the children and the requirement that the respondent herein uses the farm to provide food be set aside.

3. By ruling delivered by that court, the application was dismissed provoking this appeal which is anchored on the following grounds;1. The learned trial magistrate had no justification in dismissing the application.2. The learned trial magistrate erred in dismissing the application which was well supported.3. The decision is oppressive and not in the interest of justice.

4. The appeal was disposed of by way of written submissions which are on record and have been considered.

5. The issue in this appeal is whether the trial magistrate erred in dismissing the application. The genesis of the dispute is a children case filed by the respondent against the appellant seeking maintenance for the minors. By a judgement of that court, the trial magistrate granted custody of the minors to the respondent and that from tilling the land, she can provide food for the minors.

6. The appellant later filed an application seeking to review the orders of the court on the ground that the respondent had commenced wanton destruction of the trees on the farm in the pretext of farming.

7. The basis for dismissal of the application by the trial magistrate was the best interest of the children. From the record, the respondent and the children occupy the house built by the plaintiff in that parcel of land registered in the appellant’s name. there also was an order that since the respondent is a housewife, she could only provide for the minor’s food from tilling the farm.

8. The question to be answered is; would the best interests of the children be achieved by allowing the application? The appellant states that he is ready to provide for all the needs of the minors if the respondent is disallowed use of the farm.

9. It is now settled law that in any action involving the welfare of children, the primary consideration is the children’s best interests. In the instant appeal, would denying the respondent use of the land promote the welfare of the minors? The appellant is obligated by law to provide for his children notwithstanding the fact that the respondent tills the land. The bests interest of the child is anchored in article 53(2) of the Constitutionwhich provides:(2).A child’s best interests are of paramount importance in every matter concerning the child.

10. Section 4(2) and (3)(b) of the Children Act echo the above and states:(2).In all actions concerning children whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.(3)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)and promote the welfare of the child;(c)…

11. Having perused the record, the court comes to the conclusion that the issue of the use of the land and the children’s well-being are totally unrelated. The appellant cannot place a condition that he can only provide for the minors if the respondent is estopped from using the land.

12. Having considered the entire record, the submissions herein and the law, I find no merit in this appeal and is dismissed with costs to the respondent.

DATED AT BUNGOMA THIS 5TH DAY OF OCTOBER, 2022. S. N. RIECHIJUDGE