When the marriage between David and Rael (no real names) failed two years ago, they parted ways.
David later went to court and sought custody of their three children. The case was referred to mediation and after several meetings both parents agreed.
In it, both parents agreed to provide medical care for the minors, while the father should stay with the children (custody).
The reason was that the woman had already moved in with another man and had a fourth child. Rael agreed to buy groceries for the children every month. Both parents also agreed to change the children's school after the separation.
However, since the case was not yet closed, one of the children decided to move in with their mother. Rael enrolled the minor at another school.
The father again appealed to the court, demanding that the youngest child be sent back to the previous school where the other siblings were enrolled and that the court force Rael to pay school fees.
During the hearing, the man told the court that he had moved out of the marital home, rented it out and was making some money from it.
The woman suggested that the man continue to pay the school fees while she takes care of other needs such as clothing, snacks and school trips.
After hearing the matter, Chief Justice CC Oluoch directed the mother to continue paying school fees for the child who moved in with her as she had “unilaterally” transferred the child to the new school.
The court also ordered David to continue to look after the other two children and it was left to him to decide whether to transfer the child to another school, but he should pay the fees as he now has less responsibility carries.
“He should make a decision that is in the best interests of the child and not give the impression that he is competing with the other parent who is providing better care to the children,” the judge said in his ruling on November 10 last year.
The court also ruled that both parents have joint custody of the minors, as both parents provide shelter, food, clothing and medical care if they actually have custody.
The decision paints a picture of the changing dynamic, where men are no longer the only ones who fully care for the children's needs, while women are given actual custody of the minors.
Dr. Ruth Aura-Odhiambo, a Supreme Court lawyer, says that in maintenance cases, the best interests of the child come first.
Normally, according to the lawyer, both parents are equally responsible for supporting the child.
“However, the financial situation of the parents is different. There are those who earn higher salaries and engage in more income-generating activities. Therefore, courts consider such issues before apportioning jurisdiction,” said Dr. Aura.
The child issues expert added that parents should also avoid putting their former partners at a disadvantage by having children.
“For example, if a child feels comfortable in a particular school, parents should not force the other party to change schools just because they can offer it,” she said.
Dr. Odhiambo said the courts will independently examine the evidence and question the minors before issuing their instructions.
A judge who hears children's matters at the Milimani Court, who asked not to be named because he is not authorized to speak to the media, said circumstances have changed and women are now empowered to an extent , which they would no longer have to rely on. The children's father takes care of all their needs.
However, the judge said that both parents are expected in all circumstances to care for the children after the separation.
The judge added that the division will be based on the parents' abilities.
A few years ago, Supreme Court Justice Teresia Matheka cut the monthly maintenance fee that EWM charged SMW, the father of her two children and a boda boda rider.
The court ordered the man to pay a monthly fee of Sh3,000 for the maintenance of the two children.
The woman had asked for Sh6,000 for groceries alone while other needs included school fees, rent and electricity bills, totaling Sh10,000.
It also emerged that the maternal grandmother took care of the children, although the court found that she had no parental responsibility for the children and that it was unfair for the woman to take the children away from their father and bring them to their mother .
“The appellant has proposed to pay the Sh3,000 per month proposed by him on or before the end of each month for the maintenance of the children,” the judge said, directing both parents to ensure the educational needs of the children.
She said if parents can afford to send their children to private schools, they should agree on the school and their financial obligations.
In a long-running dispute between a scion of a prominent Kenyan family and his former wife that ended up in the Court of Appeal, the man was ordered to pay Sh150,000 a month in maintenance.
While the case was pending, the mother was awarded temporary custody of the two children and had sought a monthly maintenance fee of Sh600,000 plus school fees for the children studying abroad.
Milimani's judge, while giving instructions on actual custody and child support, said the courts were adopting a procedure that would least disrupt the children's lives or a step that could lead to opposition between the warring parents.
The judge said that although custody of children of tender age is usually often given to the mother, there are exceptional circumstances in which custody of the children is given to the father.
“This must be proven by the parent seeking actual possession of the child. The court should remember that a child has the right to parental care and protection shared equally by both parents,” he said. Due to the rising cost of living, people are coming to appraisals to enforce court orders.
The judge said there were cases where parties had gone back to court to seek a review of fees or even a change of school after circumstances changed, such as losing a job.
“There have been cases where parents demanded a change of school (from private to public or with lower school fees) and place of residence and other schools because they had lost their jobs or are in economic difficulties,” he said.
The chief justice noted that such cases usually increase during the December holidays and January when schools reopen.
He said in the decisions that courts must be guided by the best interests of the child and ensure that basic needs such as food, shelter, clothing and medical needs are taken into account.
“To apportion the fees, we consider the income or earning capacity, whether they have property and other financial resources, financial needs and obligations,” he said, adding that the conditions can be changed if the court is satisfied that this is appropriate and in the best interests of the child.
To assist courts in child support cases, judges also utilize the services of the Department of Children Services, which may visit homes or even schools to assess status.
Article 53(2) of the 2010 Constitution of Kenya provides:
The best interests of the child are of paramount importance in all matters affecting the child.
And section 4(2) and (3) of the Children Act (the Act) provides as follows:
(2) In all actions affecting children, whether by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
(3) All judicial and administrative institutions and all persons acting on behalf of those institutions, when exercising the powers conferred by this Law, shall consider the best interests of the child as the first and primary consideration… insofar as this is consistent with adopting an approach that aims to –
(a) protect and promote the rights and welfare of the child;
(b) preserve and promote the welfare of the child;
(c) provide the child with such guidance and correction as is necessary for the welfare of the child and in the public interest.
Courts should also consider the financial needs, obligations or responsibilities that each party has or will have in the foreseeable future, as well as the child's financial needs and the child's current circumstances.
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