A Nairobi woman has lost a bid to get Sh148,000 per month from her "rich" ex-lover as maintenance for her and their three children.
The woman, codenamed Ms FWM, wanted the High Court to review the man's monthly maintenance fee from the current Sh15,000 as ordered by the Children's Court and increase it almost tenfold so that the minors can have balanced diet and improved shelter. The man was codenamed in court papers as Mr EMM.
Describing him as "a man of means", she also wanted court to order him to provide the children with a comprehensive medical cover. She claimed he was withholding information on his earnings to escape financial obligations to her and the children.
But Judge Hillary Chemitei dismissed Ms FWM's appeal after finding that the Children's Court had ordered the two ex-lovers to share parental responsibilities and there was no evidence Mr EMM had failed in his obligations as ordered by the lower court in 2022.
In the lower court orders, the ex-couple had been directed to share joint legal custody of the children but the woman to have actual custody.
The woman had been ordered to take care of shelter, clothing and nanny’s salary, while the man would be responsible for school fees and medical requirements plus Sh15,000 monthly sum to cater for food and utilities.
This, he said, is because the children's court had taken all considerations before making the orders and that there was no evidence of non-disclosure on the part of the man's earnings, which had dipped and were fluctuating due to bad business environment.
The judge took note of Mr EMM's response that his business had been badly affected by Covid-19 pandemic and his earnings had dropped to between Sh20,000 and Sh50,000.
The man told court that he was in the Information Technology business and was surviving, among others, from his new wife and his mother. He also told court that he had dutifully complied with lower court's orders to pay fees and medical as well as providing them with Sh15,000 monthly to cover food.
"I also note that Ms FWM is being well versed with parental responsibility being a shared task has not complained about her role. The Sh15,000 she gets monthly plus what she gets from her employment or any other source is sufficient to keep her afloat. The business environment was hit badly by the Covid pandemic which the trial court acknowledged and I find the orders of shared responsibilities by the said court reasonable," said the judge.
In her appeal, Ms FWM argued that the lower court failed to analyse the financial capability of each of them, informing court that her monthly income was Sh17,000.
She said the amount was not sustainable and capable of putting the children in the same standard they enjoyed before their separation.
"The children's court failed to take into consideration the fact that Mr EMM had other streams of income and that the amount of Sh15,000 which he was directed to pay was a paltry sum not commensurate to his earnings," she told the judge.
She said that based on her tabulation, the man ought to be compelled to pay her a sum of Sh148,000 per month.
"The children ought to enjoy the same lifestyle in which they enjoyed while they were living together. What the court did was to lower their standards yet the man was capable of sustaining them. They should enjoy the adequate balanced diet and shelter with modern amenities previously enjoyed," she stated.
Judge Chemitei said if there was new evidence to the effect that the man's financial position had improved, the woman should seek review of the orders at the lower court.
Being a children’s matter, he explained, nothing stops the court from undertaking further review of its judgment so as to ensure that the best interest of the minors is taken care of.
On Ms FWM's contention that Mr EMM must provide medical care for the minors, the judge she was simply regurgitating what the man had been directed to do and had not refused, neither had he appealed against.
"I think that issue only becomes contentious in the event that he fails to meet the medical obligation. There was no evidence that any of the children had missed any medical attention because of the man's failure to fulfil his obligation," ruled the judge.
