When the marriage between David and Rael (not real names) hit the rocks two years ago, they parted ways.
David later moved to court seeking legal custody of their three children. The case was referred to mediation and after several meetings, both parents agreed.
In the deal, both parents agreed to cater for the minors’ medical care, while the father was to 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 do monthly food shopping for the children. Both parents also agreed to change the children’s schools after the separation.
But as the case was pending conclusion, one of the children decided to move in with the mother. Rael enrolled the minor in a different school.
The father headed back to court, seeking to have the youngest child transferred back to the former school, where the other siblings had been enrolled, and for the court to compel Rael to pay the school fees.
During the hearing, the man told the court that he moved out of the matrimonial house and leased it out and was earning him some money.
The woman proposed that the man continue to pay for school fees while she caters to other needs including clothes, snacks, and school trips.
After hearing the matter, Chief Magistrate C.C. Oluoch directed the mother to continue paying school fees for the child who moved in with her, because she ‘unilaterally’ transferred the child to the new school.
The court also directed David to continue catering for the other two children and it was left to him to decide whether to transfer the child to a different school but he should pay for the fees, now that he has fewer responsibilities.
“He should make a decision that serves the best interests of the child and not appear to be in competition with the other parent who offers better care to the children,” the magistrate said in the judgment on November 10, last year.
The court also ruled that both parents have joint legal custody of the minors as both of them provide shelter, food, clothes, and medical care when having actual custody.
The decision paints a picture of the changing dynamics where men are no longer the only ones to fully cater to the needs of the children while women are granted actual custody of the minors.
Dr Ruth Aura-Odhiambo, an advocate of the High Court says of importance in maintenance cases is the best interest of the child.
Ordinarily, the advocate said, both parents share equal responsibility in the maintenance of the child.
“However, the financial status of parents differ. There are those who earn higher salaries and have more income-generating activities. Courts, therefore, look at such issues before apportioning responsibilities,” Dr Aura said.
The expert on children matters added that parents should also avoid using children to disadvantage their former partners.
“If a child is comfortable in a certain school, for example, a parent should not force the other party to change schools just because they can provide,” she said.
Dr Odhiambo said courts will independently review the evidence and interview the minors before giving their directives.
A magistrate who deals with children matters at the Milimani Law Courts, who asked not to be named because he is not authorised to speak to the media, said circumstances have changed and women are now empowered to the extent that they no longer need to rely on the father of the children to cater for all of their needs.
The magistrate, however, said both parents in all circumstances are expected to provide for the children after separation.
A few years ago, High Court judge Teresia Matheka slashed the monthly maintenance fee sought by EWM from SMW, the father of her two children and a boda boda rider.
The court directed the man to pay Sh3,000 monthly fee for the upkeep of the two children.
The woman had asked for Sh6,000 for food alone, while other needs included school fees, rent, and electricity bills all totaling Sh10,000.
It also emerged that the children were being taken care of by the maternal grandmother although the court noted that she has no parental responsibility over the children and it was unfair for the woman to remove the children from their father and take them to her mother.
“The appellant to pay the Sh3,000 per month he proposed on or before the end of each month towards the maintenance of the children,” the judge said and directed both parents to provide for the educational needs of the children.
She said if the parents can afford to take the children to private schools, they should agree on the school and their financial obligations.
In a long-running dispute pitting a scion of a prominent Kenyan family and his former wife, which ended at the Court of Appeal, the man had been ordered to pay monthly upkeep of Sh150,000.
During the pendency of the case, the mother had been granted interim custody of the two children and had sought a monthly maintenance fee of Sh600,000 plus school fees for the children, who were studying abroad.
While giving directives on the actual custody and maintenance of the children, the Milimani magistrate said courts adopt a procedure that least disrupts the lives of the children or a move that might inflict resistance between the warring parents.
The magistrate said although ordinarily the custody of children of tender years will often be granted to the mother, there are exceptional circumstances where the father is given custody of the children.
“This has to be demonstrated by the parent seeking actual possession of the child. The court should bear in mind that a child has the right to parental care and protection, which is equally shared by both parents,” he said. People come for reviews, because of the rising cost of living, seeking enforcement of court orders.
The magistrate said there are instances where parties have headed back to court seeking a review of the fees or even a change of schools after circumstances change such as loss of job.
“We have had cases where parents have come to ask for a change of schools (from private to public or where fees are less) and places of residences and others still, ask for the cancellation of the payable fees because they have lost jobs or are undergoing economic difficulties,” he said.
The senior principal magistrate noted that such cases tend to rise towards the December holidays and in January when schools reopen.
He said in the decisions, courts are guided by the child’s best interest and must ensure that basic needs such as food, shelter, clothes, and medical needs are catered for.
“To apportion the fees, we look at the income or earning capacity, whether they have property and other financial resources, the financial needs and obligations,” he said adding that the terms may be varied if the court is satisfied that it is reasonable and in the best interests of the child.
To assist courts in maintenance cases, magistrates also engage the services of the Department of Children Services, who might visit homes or even schools to assess the status.
Article 53(2) of the Constitution of Kenya, 2010 provides:
(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, 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 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—
(c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.
Courts also should consider the financial needs, obligations, or responsibilities that each party has or is likely to have in the foreseeable future and the financial needs of the child and the child’s current circumstances.
